                                   NUMBER 13-08-00539-CR

                                   COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


FIDENCIO FLORES,                                                                              Appellant,

                                                      v.

THE STATE OF TEXAS,                                                                           Appellee.


      On appeal from the 156th District Court of Bee County, Texas.


                               MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Yañez and Benavides
                Memorandum Opinion by Justice Yañez

        A jury convicted appellant, Fidencio Flores, of the felony offense of possession of

a deadly weapon in a penal institution1 and assessed his punishment at fourteen years’




         1
           See T EX . P EN AL C OD E A N N . § 46.10 (Vernon 2003). Appellant was also charged with aggravated
assault with a deadly weapon. See id. § 22.02 (Vernon Supp. 2008). The jury charge included a self-defense
instruction, which included a “provoking the difficulty” instruction, as to the aggravated assault offense. The
jury found him not guilty of that offense.
imprisonment.2 In a single issue, appellant contends the trial court committed reversible

error by refusing his request for a self-defense instruction for the possession charge. We

affirm.

                                              Background

          Many of the facts surrounding the offense are not in dispute. On November 13,

2007, appellant, an inmate in the McConnell Unit of the Texas Department of Criminal

Justice, was involved in a fight with Stephen Hernandez, his former cellmate. Appellant

went to Hernandez’s cell to retrieve property he believed Hernandez had stolen. Before

visiting Hernandez’s cell, appellant placed a lock in the sock he was wearing.3 After

appellant entered Hernandez’s cell, he demanded his property and a fight broke out.

During the fight, Hernandez grabbed appellant and held him in a headlock. Appellant

testified that Hernandez was choking him and he became dizzy. According to appellant,

when he was being choked, he couldn’t breathe very well and felt that his “life was in

danger.” He believed if Hernandez kept choking him, he would have been killed. Appellant

testified that he saw a razor on the table, grabbed it, cut Hernandez with it, and Hernandez

released him. Appellant testified that he then flushed the razor down the toilet so he would

not be caught with it. Hernandez testified that appellant must have brought the razor into

the cell with him because he first saw it when appellant flushed it down the toilet. During



          2
          See id. §§ 12.34 (Vernon 2003), 12.42(a)(3) (Vernon Supp. 2008). The trial court ordered the
sentence to run consecutively and com m ence when appellant’s fourteen-year sentence for aggravated assault
with a deadly weapon, an unrelated 2003 conviction, ceased to operate.

          3
          There was conflicting testim ony about the lock. Appellant testified he brought the lock because if
Hernandez was not in his cell, he intended to break the lock on Hernandez’s locker, and if his property was
not inside, he would leave his lock with Hernandez. Hernandez testified that when appellant cam e to his cell,
he was holding the lock like a brass knuckle; Hernandez believed appellant intended to use the lock as a
weapon. After the fight started, the lock fell on the floor.

                                                      2
the fight, Hernandez realized that he was becoming weak and had blood dripping off his

face, but did not realize he had been cut with a razor.4

        At the charge conference, appellant requested jury instructions for self-defense and

necessity as to both the aggravated assault and possession offenses. The trial court

accepted the self-defense instruction as to the assault charge, but denied the self-defense

instruction for the possession charge. However, with respect to the possession charge,

the court allowed the requested instruction on necessity. Appellant objected to the trial

court’s refusal to include a self-defense instruction as to the possession charge.

                               Standard of Review and Applicable Law

        “Our first duty in analyzing a jury-charge issue is to decide whether error exists.”5

If error exists, we then inquire whether the error harmed the defendant.6 When reviewing

a trial court’s decision to deny a requested defensive instruction, we view the evidence in

the light most favorable to the defendant’s requested submission.7

        Appellant was convicted of possession of a deadly weapon in a penal institution.8

Under the statute, a person commits an offense if, while confined in a penal institution, the

person intentionally, knowingly, or recklessly carries on or about his or her person a deadly

weapon, or possesses or conceals a deadly weapon in the penal institution.9


        4
          Hernandez testified that his injuries required fifty-two stitches to his left cheek and thirty-six staples
to his head, neck, and back.

        5
            Ngo v. State, 175 S.W .3d 738, 743 (Tex. Crim . App. 2006).

        6
            Id.

        7
            Bufkin v. State, 207 S.W .3d 779, 782 (Tex. Crim . App. 2006).

        8
            See T EX . P EN AL C OD E A N N . § 46.10.

        9
            See id.

                                                         3
        “All statutory affirmative defenses ‘justify the defendant’s admitted participation in

the act itself.’”10 A defendant has a right to a jury instruction on any defensive issue that

has been raised by the evidence, regardless of whether the evidence is weak or strong,

unimpeachable or contradicted, and regardless of what the trial court may think of its

credibility.11 “This rule is designed to insure that the jury, not the judge, will decide the

relative credibility of the evidence.”12 A defendant need not testify in order to raise a

defense.13 Defensive issues may be raised by the testimony of any witnesses, even those

called by the State.14 In deciding whether a defensive theory is raised, the evidence is

viewed in the light most favorable to the defense.15 If the testimony or other evidence

viewed in a light most favorable to the defendant does not establish self-defense, an

instruction is not required.16

        Necessity and self-defense are separate defenses.17 The necessity defense is

contained in section 9.22 of the penal code, which states:

        Conduct is justified if:


        10
          East v. State, 76 S.W .3d 736, 738 (Tex. App.–W aco 2002, no pet.) (quoting Sanders v. State, 707
S.W .2d 78, 81 (Tex. Crim . App. 1986)).

        11
          Ferrel v. State, 55 S.W .3d 586, 591 (Tex. Crim . App. 2001) (citing Granger v. State, 3 S.W .3d 36,
38 (Tex. Crim . App. 1999); Hamel v. State, 916 S.W .2d 491, 493 (Tex. Crim . App. 1996)).

        12
             Granger, 3 S.W .3d at 38.

        13
          Boget v. State, 40 S.W .3d 624, 626 (Tex. App.–San Antonio 2001), aff’d, 74 S.W .3d 23, 31 (Tex.
Crim . App. 2002).

        14
           Jackson v. State, 110 S.W .3d 626, 631 (Tex. App.–Houston [14th Dist.] 2003, pet. ref’d); Shelvin
v. State, 884 S.W .2d 874, 878 (Tex. App.–Austin 1994, pet. ref’d).

        15
             Granger, 3 S.W .3d at 38.

        16
             Ferrel, 55 S.W .3d at 591; Granger, 3 S.W .3d at 38.

        17
             Bowen v. State, 162 S.W .3d 226, 229 (Tex. Crim . App. 2005).

                                                       4
        (1) the actor reasonably believes the conduct is immediately necessary to
        avoid imminent harm;

        (2) the desirability and urgency of avoiding the harm clearly outweigh,
        according to ordinary standards of reasonableness, the harm sought to be
        prevented by the law proscribing the conduct; and

        (3) a legislative purpose to exclude the justification claimed for the conduct
        does not otherwise plainly appear.18

         Self-defense is defined in section 9.31(a) of the penal code, which 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.”19 By its express terms, the statute’s

application is for a defendant accused of using force against another.20

                                                   Discussion

        The State argues that the trial court did not err in refusing appellant’s requested self-

defense instruction regarding his possession offense because force is not an element of


        18
           See T EX . P EN AL C OD E A N N . § 9.22 (Vernon 2003). Here, appellant received the following necessity
instruction as to the possession offense:

                 You are instructed that conduct is justified if the defendant reasonably believes the
        conduct is im m ediately necessary to avoid im m inent harm ; and the desirability and urgency
        of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness,
        the harm sought to be prevented by the law proscribing the conduct. “Ordinary standards of
        reasonableness” m eans the standards that an ordinary and prudent person would apply to
        the circum stances that the defendant faced.

                 Now, if you find from the evidence that the defendant reasonably believed his
        conduct was im m ediately necessary to avoid im m inent harm , and you further find that the
        desirability and urgency of avoiding the harm clearly outweighed, according to ordinary
        standards of reasonableness, the harm sought to be prevented by the law proscribing the
        conduct, then you should acquit the defendant; or, if you have a reasonable doubt as to
        whether or not the defendant acted reasonably or the desirability and urgency of avoiding the
        harm was unreasonable under the circum stances, then you should give the defendant the
        benefit of that doubt and say by your verdict, “not guilty” as to Count 2 in paragraph 6.

        19
             See T EX . P EN AL C OD E A N N . § 9.31(a) (Vernon Supp. 2008).

        20
             See id.

                                                          5
possession of a deadly weapon in a penal institution. According to the State, appellant’s

issue should be overruled because “[t]here is no authority that says self[-]defense is

applicable to a possession charge.”

        Citing Boget v. State, appellant argues that self-defense can be asserted when the

defendant is accused of an offense not involving the use of force.21 In Boget, the

defendant was charged with criminal mischief for breaking a truck’s windshield with a

flashlight; the defendant offered evidence that the truck had been driving towards him and

almost hit him.22 The court held that “the criminal mischief was part and parcel of [Boget’s]

‘use of force against another.’ In other words, without Boget’s use of force[,] there would

have been no criminal mischief.”23 Under those circumstances, the Boget court held that

self-defense could apply to the offense of criminal mischief when the “mischief [arose] out

of the accused’s use of force against another.”24

        The court contrasted the circumstances in Boget to those in Johnson v. State.25 In

Johnson, the defendant was convicted of unlawfully carrying a handgun on licensed

premises.26 The Boget court noted the distinctions between Boget and Johnson as follows:


        21
             See Boget v. State, 74 S.W .3d 23 (Tex. Crim. App. 2002).

        22
             Id. at 25.

        23
             Id. at 27.

        24
             Id. at 24, 31.

        25
             Id. at 26 (discussing Johnson v. State, 650 S.W .2d 414, 416 (Tex. Crim . App. 1983)).

        26
            See Boget, 74 S.W .3d at 26 (“The defendant in Johnson was involved in a bar-room gun fight and
was subsequently convicted of unlawfully carrying a handgun on licensed prem ises. Johnson had gone to
the bar with his girlfriend, who was carrying her handgun. W hen he entered the bar, Johnson spotted W ilbur
W illiam s. Johnson had previously been in an argum ent with W illiam s and heard that W illiam s was ‘after him ’
with a loaded shotgun and pistol. After W illiam s told Johnson he wanted to talk to him , Johnson pocketed his
girlfriend’s gun. Johnson was later attacked by W illiam s and W illiam s’ brother. Johnson brandished his
girlfriend’s gun and fired it several tim es, killing W illiam s and wounding several others.”).

                                                        6
      Both Boget and Johnson used force against another in response to an
      alleged attack. Both were charged with an offense other than an offense
      against the person. But in Boget’s case, the criminal mischief was part and
      parcel of his “use of force against another.” In other words, without Boget’s
      use of force[,] there would have been no criminal mischief. In contrast,
      Johnson’s offense did not arise out of his use of force. Even if Johnson had
      not [used force against the victim], he could have still been charged with
      carrying a handgun on licensed premises.27

In Johnson, the court found that Johnson was not entitled to an instruction on self-

defense.28

      The question before us is whether appellant’s possession charge was “part and

parcel” of his use of force against Hernandez. In other words, as the Boget court framed

the issue, without appellant’s use of force—like the defendant in Johnson—could appellant

have still been charged with possession?29 As the court noted, “[t]he relevant inquiry is

whether [appellant] directed his force against [Hernandez].”30

      Appellant testified as follows:

      Q [appellant’s counsel]: When did you see the razor?

      A [appellant]: I was becoming dizzy, and I told him three times to let me go.
      Naturally I saw a knife of shaving [sic] that he had in the table. I took it, I cut
      him, he let me go.

      Q: When you first saw the razor was he already choking you?

      A: Yes.

      We conclude that under appellant’s version of the facts, his force was directed

against Hernandez. Based on appellant’s testimony, he “possessed” the razor only long

      27
           Boget, 74 S.W .3d at 27.

      28
           Id. (citing Johnson, 650 S.W .2d at 416.)

      29
           See id.

      30
           Id. at 31.

                                                       7
enough to cut Hernandez; immediately thereafter, he flushed it down the toilet. Without

appellant’s use of force, there would have been no possession-of-a-deadly-weapon

charge.

        In Bowen v.State, the court of criminal appeals held that in the context of resisting

arrest, the defendant was entitled to a necessity instruction, even though the trial court had

submitted an instruction on self-defense.31 In doing so, the court stated, “[w]e have

recognized the independence of separate defenses by holding that a defendant is entitled

to the submission of every defensive issue raised by the evidence, even if the defense may

be inconsistent with other defenses.”32 Viewing the record in the light most favorable to the

defense, we conclude appellant was entitled to a self-defense instruction as to the

possession charge.

                                                            Harm

        An erroneous or incomplete jury charge, however, does not result in automatic

reversal of a conviction.33 Properly preserved charge error requires reversal if the error

was “calculated to injure the rights of [the] defendant,” which means no more than that

there must be some harm to the accused from the error.34 In other words, a properly

preserved error will call for reversal as long as the error is not harmless.35 In making this



        31
             Bowen, 162 S.W .3d at 230.

        32
             Id.

        33
           Pennington v. State, 54 S.W .3d 852, 858 (Tex. App.–Fort W orth 2001, pet. ref’d); see also Fox v.
State, No. 13-03-230-CR, 2006 Tex. App. LEXIS 7898, at *12 (Tex. App.–Corpus Christi 2006, pet. ref’d)
(m em . op., not designated for publication).

        34
             T EX . C OD E C R IM . P R O C . A N N . art. 36.19 (Vernon 2006).

        35
             Almanza v. State, 686 S.W .2d 157, 171 (Tex. Crim . App. 1985) (op. on reh’g).

                                                                8
determination, “the actual degree of harm must be assayed in light of the entire jury

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

evidence, the argument of counsel and any other relevant information revealed by the

record of the trial as a whole.”36 In conducting a harm analysis under Almanza, neither

party has the burden of proof or persuasion.37 Rather, “the record must show that a

defendant has suffered actual, rather than merely theoretical, harm from jury instruction

error.”38 Here, appellant timely objected to the trial court’s refusal to submit a self-defense

instruction as to his possession charge; thus, his conviction must be reversed if the record

shows some harm.39

          Here, appellant argues that “[t]he harm is apparent in the trial record.” Appellant

points to two notes that the jury sent to the judge during deliberations. The first note

requested a definition of “possession”; the judge provided a definition from the penal code.

The jury later sent a second note asking whether, regarding the possession count,

appellant was being charged with bringing the razor to Hernandez’s cell, or for using the

razor, regardless of ownership. The judge directed the jury to make a judgment based on

the testimony, evidence, and instructions. According to appellant, this establishes that

“[t]he jury was clearly conflicted on convicting [a]ppellant on the possession charge.”

Appellant makes no other argument and points to no authority establishing that under

these circumstances, appellant was harmed by the trial court’s refusal to include a self-

          36
               Id.; see also Ovalle v. State, 13 S.W .3d 774, 786 (Tex. Crim . App. 2000).

          37
               W arner v. State, 245 S.W .3d 458, 464 (Tex. Crim . App. 2008).

          38
               Id. (quoting Ngo v. State, 175 S.W .3d 738, 750 (Tex. Crim . App. 2005)).

          39
               Almanza, 686 S.W .2d at 171. W e note that the written requested instruction is not included in the
record.

                                                          9
defense instruction on the possession charge.         We fail to see how a self-defense

instruction as to the possession charge would have clarified any confusion the jury may

have had regarding the distinction between appellant’s bringing the razor to Hernandez’s

cell or simply using it, regardless of ownership.

       The jury received a necessity instruction as to the possession offense, which

instructed the jury that if it found that appellant reasonably believed his conduct

(possessing a razor long enough to cut Hernandez with it) was immediately necessary to

avoid imminent harm (to himself from being choked by Hernandez) and the desirability and

urgency of avoiding the harm (to himself) clearly outweighed the harm sought to be

prevented by the law proscribing the conduct (possessing a razor in a penal institution),

then appellant should be found “not guilty.”        The jury found appellant guilty of the

possession offense. We fail to see how appellant was harmed by the failure to include a

self-defense instruction as to the possession offense.

       We conclude that the record does not show that appellant suffered actual harm as

a consequence of the trial court’s refusal to submit a self-defense instruction as to the

possession offense. Accordingly, we overrule appellant’s issue and affirm the trial court’s

judgment.40


                                                         LINDA REYNA YAÑEZ,
                                                         Justice

Do not publish.
TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 1st day of October, 2009.


       40
            See W arner, 245 S.W .3d at 464.

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