            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. PD–0498–17



                             WILLIAM ROGERS, Appellant

                                               v.

                                 THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
             FROM THE THIRTEENTH COURT OF APPEALS
                         REFUGIO COUNTY

              K EEL, J., delivered the opinion for a unanimous Court.

                                        OPINION

       A jury convicted Appellant of aggravated assault and burglary of a habitation with

commission or attempted commission of aggravated assault. The court of appeals vacated

the aggravated assault conviction on double jeopardy grounds because it was a lesser

included offense of the burglary. Rogers v. State, 527 S.W.3d 329, 336 (Tex. App. –

Corpus Christi 2017, pet. granted). We granted review of the court of appeals’ holding in

the burglary case that the trial court’s refusal to instruct the jury on self-defense and
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necessity, if error, was harmless. Id. at 333. We conclude that the trial court’s refusal to

instruct on self-defense and necessity, if error, was harmful to the defense. Consequently,

we reverse and remand for the court of appeals to decide whether the trial court’s ruling

was erroneous.

                                   Standard of Review

       When jury charge error is preserved at trial, the reviewing court must reverse if the

error caused some harm. Cornet v. State, 417 S.W.3d 446, 449 (Tex. Crim. App. 2013);

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

harm” means actual harm and not merely a theoretical complaint. Cornet, 417 S.W.3d at

449; Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012); Almanza, 686

S.W.2d at 174. There is no burden of proof associated with the harm evaluation. Reeves

v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). Reversal is required if the error

was calculated to injure the rights of the defendant. Id., quoting Almanza, 686 S.W.2d at

171. The harm evaluation entails a review of the whole record, including the jury charge,

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

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

harm evaluation is case-specific. Cornet, 417 S.W.3d at 451.

       Failure to instruct on a confession-and-avoidance defense is rarely harmless

“because its omission leaves the jury without a vehicle by which to acquit a defendant

who has admitted to all the elements of the offense.” Cornet, 417 S.W.3d at 451. Self-
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defense and necessity are confession-and-avoidance defenses. Gamino v. State, 537

S.W.3d 507, 511 (Tex. Crim. App. 2017) (self-defense); Juarez v. State, 308 S.W.3d

398, 404 (Tex. Crim. App. 2010) (necessity).

       In Cornet, this Court found one of the rare cases in which the trial court’s refusal

to instruct on a confession-and-avoidance defense was harmless. The defendant was

charged with three counts of aggravated sexual assault of a child alleged to have occurred

on or about the same date. He was convicted of digital penetration of the female sexual

organ and oral-anal contact with the child. 417 S.W.3d at 449. The defendant denied the

oral-anal contact but sought to justify the digital penetration with the medical care

defense. This Court reasoned that the trial court’s refusal to instruct on that defense was

harmless because it applied only to digital penetration, and it was “inconceivable” that the

jury would have found the defendant guilty of the oral-anal contact but not guilty of the

digital penetration if given the opportunity to apply the medical care defense. Id. at 452.

Despite the lack of instruction, the prosecution urged rejection of the medical-care

defense, so it appeared “that the jury considered and rejected appellant’s claim that his

contact with the complainant was for her medical care.” Id. at 454. “It is clear that the

jury believed the complainant and disbelieved [the defendant’s] claims that he was only

touching the complainant with his hand to provide medical care.” Id. at 452.

       As we detail below, this case is distinct from Cornet because Appellant’s proposed

defenses applied to both his charges, but unlike Cornet’s jury, Appellant’s never heard
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mention of the defensive issues in any context and had no opportunity to consider them.

This left Appellant with one path to an acquittal for burglary: consent to enter given by

the co-owner. But that path was obstructed by the prosecution’s explanations of and

arguments about the meaning of consent and by the trial court’s exclusion of

corroborating testimony about the co-owner’s consent. Because of the foregoing, the

court of appeals’ reasoning does not hold up to scrutiny. Consequently, unlike in Cornet,

it is not inconceivable that a juror would have harbored a reasonable doubt about

Appellant’s guilt if given the opportunity to consider the defensive issues.

       We turn now to the record before us.

                                        The Record

Evidence Before the Jury

       The complainant, David Watson, testified that Appellant was hiding in his master

bedroom closet and ambushed him with a gunshot to the scrotum when he came home

from work on February 14, 2013. Upon being shot, the complainant grabbed Appellant

with one hand and the pistol with the other, jamming his fingers into the trigger

“mechanism” to prevent Appellant from firing again. He rammed Appellant backwards

into the closet, and then they struggled over the gun throughout the house. During the

struggle the complainant managed to grab a hunting knife, and they struggled over that,

too. Eventually, Appellant escaped the complainant’s grasp and fired at him but missed.

When Appellant retreated to a bedroom, the complainant left via the front door and ran a
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zigzag pattern to his neighbor’s house while Appellant shot at him from the front porch,

again missing him. The complainant and neighbors saw Appellant drive away.

       Appellant, on the other hand, claimed that he had been engaged in an affair with

the complainant’s wife, Sandra Watson, and entered the house that day at her request to

feed her cats. The complainant arrived home unexpectedly, and Appellant could not open

the back door or a window to exit undetected, so he hid in the closet. According to

Appellant, the complainant knew that someone was in the closet and entered it

brandishing a hunting knife. Appellant reached for the .380 pistol that was next to him on

top of the gun safe. The complainant grabbed his hand, and Appellant pulled the trigger.

He and the complainant then struggled throughout the house for control of the knife and

the gun until Appellant dropped the knife, and the complainant twisted the .380 out of his

hand. Appellant then pulled his .45 pistol from his pocket and shot back toward the

complainant to get him to stop. The complainant exited the house through the front door.

Still unable to open the back door, Appellant left through the front door, too. He heard

“pop” and saw the complainant behind a tree. Appellant returned fire in the

complainant’s direction as he tried to flee. He stumbled and dropped his gun, but he

reached his truck and got away.

       Sandra Watson did not testify.

Other Relevant Information

       A singular circumstance underlay the trial of this case: The trial court granted the
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State’s pre-trial motion in limine to prohibit the defense from mentioning any justification

defenses. The State’s position was then and still is that Appellant’s self-defense claim

was barred because he was unlawfully carrying a weapon, and he started the fight. The

State relies on language in the self-defense statute that authorizes a presumption that the

actor’s belief that force was immediately necessary was reasonable if, among other things,

the actor “was not otherwise engaged in criminal activity” more serious than a Class C

misdemeanor. T EX. P ENAL C ODE § 9.31(a)(3). Failure to fulfill the condition for the

presumption, however, does not bar a self-defense claim. The State also fails to

recognize that a defensive issue must be submitted to the jury if it is raised by any

evidence, even if that evidence is contradicted or weak. Krajcovic v. State, 393 S.W.3d

282, 286 (Tex. Crim. App. 2013).

       The trial judge, however, agreed with the State and enforced his ruling on the

motion in limine throughout the trial. The defense could not qualify the venire on any

justification defenses, mention them in opening statement, offer any evidence in support

of them or argue them in closing. This left Appellant with one avenue for acquittal in the

burglary case: Sandra’s consent. As for the aggravated assault charge and the aggravated

assault element of the burglary case, he was left with no avenue for acquittal.1



       1
         Justification defenses like necessity and self-defense apply to “the conduct in question.”
TEX . PENAL CODE § 9.02. “‘Conduct’ means an act or omission and its accompanying mental
state.” § 1.07(10). Justification defenses thus apply to elements that are lesser-included offenses
of the crime charged, as, for example, the aggravated assault element of the burglary charge in
this case.
                                                                                Rogers–Page 7

       The court of appeals acknowledged that the trial court’s rulings prevented

Appellant from incorporating the defensive issues into his case but felt constrained to

“examine the record for harm as it is and not how it might look if the trial court had made

different rulings.” Rogers, 527 S.W.3d at 334, fn. 1. The court of appeals held that

Appellant’s compliance with those rulings, i.e., his failure to rely on self-defense or

necessity before the jury, weighed against a finding of harm. Id., 527 S.W.3d at 333.

       We used similar reasoning in Cornet. “Appellant’s counsel did not mention the

medical-care defense expressly or implicitly, and he appeared to disavow it by

characterizing appellant’s conduct as ‘definitely inappropriate behavior,’ and by arguing

that ‘inappropriate is not the question.’” Cornet, 417 S.W.3d at 454. But we also noted

that the prosecution argued against the medical-care defense, suggesting that the jury

considered and rejected it. Id. In this case, however, the jury had no opportunity to

consider or reject either necessity or self-defense because the trial court’s rulings

prohibited any mention of them. Those rulings are other relevant information that may

inform the harm analysis and should be considered as such.

       The court of appeals instead looked to the punishment verdict for other relevant

information and held that the 40-year sentence assessed by the jury for first degree

burglary demonstrated “that the jury felt appellant bore substantial blame for the events

inside [the complainant’s] house.” Id. at 334. Although the jury did not assess the life

sentence urged by the prosecution, it did assess “a sentence substantially above the
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minimum” which indicated its belief “that appellant was significantly blameworthy.” Id.,

quoting Gonzales v. State, 474 S.W.3d 345, 353 (Tex. App. — Houston [14 th Dist.] 2015,

pet. ref’d).

       Assuming for the sake of argument that a heavy sentence might suggest

harmlessness from an erroneous failure to instruct on a defensive issue, the life sentence

in Gonzales is substantially higher than the 40-year sentence assessed here, and

Appellant’s prior California conviction for fatal child abuse and the victim impact

testimony in the punishment phase likely played a significant role in the jury’s sentencing

calculus. More importantly, however, it is difficult to draw any reliable conclusions

about the jury’s assessment of Appellant’s blameworthiness when it was prevented from

hearing any defensive theories, evidence or argument.

The Jury Charge

       “Owner” was defined as “a person who has title to the property, possession of the

property, or a greater right to possession of the property than the person charged.”

“Effective consent” was defined in the abstract as “assent in fact, whether express or

apparent, and includes consent by a person legally authorized to act for the owner.” The

application paragraph authorized conviction if the jury found beyond a reasonable doubt

that Appellant entered a habitation “without the effective consent of David Watson, the

owner, and therein attempted to commit or committed the felony of aggravated assault

against the said David Watson[.]” Appellant’s testimony conceded his commission of the
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offense as defined in the application paragraph.

Contested Issue: Consent

       The defense did not mention consent in voir dire but argued in closing that Sandra

could and did consent to his entry into the house and that the evidence of her consent was

uncontroverted.

       The prosecutor spent considerable time on consent in voir dire. He correctly

defined consent but also asserted that “the law in Texas is that consent, if any, of any

party other than the owner named in the indictment is irrelevant in a burglary case.” That

assertion is wrong. See Villanueva v. State, 711 S.W.2d 739 (Tex. App. — San Antonio

1986), pet ref’d, 725 S.W.2d 244 (Tex. Crim. App. 1987) (per curiam) (evidence was

insufficient to support burglary conviction where defendant entered house with consent of

a co-owner). The prosecutor further muddied the waters by asking hypothetical questions

designed to illustrate the immaterial proposition that consent to enter a home does not

equate to consent to commit crimes in the home. He repeated that theme in closing,

telling the jury that Sandra may have consented to defendant entering the house for the

purpose of feeding the cats, “but she sure as heck never gave any kind of effective

consent for William Rogers to go into the house and shoot her husband.”

       The only direct evidence of Sandra’s consent was Appellant’s testimony because

the trial court excluded the corroborating testimony of Sandra’s daughter, Catarina

Rosheck, that she heard Sandra tell Appellant to feed the cats while she was out of town.
                                                                             Rogers–Page 10

The prosecution capitalized on that ruling by pointing out in closing argument that the

only evidence of Sandra’s consent was Appellant’s testimony. “And all that we have is

just her – excuse me, the defendant’s testimony that he had her permission to go there to

feed the cats that day.” Appellant’s claim that Sandra consented to his entry into the

house was supported circumstantially by the lack of forced entry into the house, his

apparent deactivation of the burglar alarm with a code, and his possession of a key to the

Watson house when he was arrested.

Physical Evidence

       Investigators found, among other things, three shell casings outside the front door,

two fired rounds embedded in walls inside the house, one of which passed through the

complainant’s thigh when Appellant shot him, a live round and a shell casing in the

kitchen, a hunting knife in the utility room area and blood throughout the house.

       The court of appeals cited three examples of physical evidence that it claimed

favored the prosecution and supported its conclusion that any jury charge error was

harmless. Rogers, 527 S.W.3d at 334. First, it cited a lack of shell casings found by the

tree from behind which Appellant claimed the complainant shot at him. Id. But there

was no evidence that anyone searched the yard for shell casings. Second, it cited the

presence of shell casings outside the front door. Id. But Appellant admitted shooting at

the complainant from that location as he fled the house. Finally, the court cited the lack

of blood in areas where Appellant claimed he struggled with the complainant in the
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house, thus contradicting his testimony in those respects. The court’s opinion did not

specify where the blood was lacking, but the State argued in closing that there was no

blood in the photos of the front door or the gun cabinet. Id. But the lack of blood by the

front door would also arguably contradict the complainant’s testimony that he exited the

front door after having been shot. Moreover, the exact locations of the two men’s

struggle shed no light on the only issue contested before the jury, i.e., Sandra’s consent to

Appellant’s entry into the house, or on the viability of the defensive issues rejected by the

trial court. Thus, the lack of blood in the photographs does not assist the harm analysis.

                                          Analysis

       This case is distinct from Cornet. Appellant’s jury, unlike Cornet’s, had no

opportunity to consider the defensive issues; and unlike the medical care defense at issue

in Cornet, necessity and self-defense applied to both charges that Appellant faced. Thus,

the logic of the Cornet opinion does not apply here; it is not inconceivable that a juror

would have had a reasonable doubt about Appellant’s guilt if given the opportunity to

consider the defensive issues.

       The trial court’s embargo of the defensive issues left Appellant with a single path

to acquittal of burglary: Sandra’s consent. The jury was prevented from fairly

considering the issue because the State erroneously claimed that Sandra’s consent was

irrelevant. That claim was superficially supported by the application paragraph and by

Appellant’s admission that he had no consent from the named complainant to enter the
                                                                                Rogers–Page 12

house. Further, the trial court excluded the proffered corroboration of Appellant’s

testimony about Sandra’s consent, a ruling that the prosecution exploited by arguing that

Appellant was the sole source of testimony about Sandra’s consent. The State further

undermined the jury’s fair consideration of the consent issue by conflating consent to

enter with consent to commit a crime. Given these circumstances, the jury’s implicit

rejection of Appellant’s claim about Sandra’s consent does not support a conclusion that

it also would have rejected his justification defenses.

       Similarly, the jury’s punishment verdict is not persuasive evidence of harmlessness

of any guilt phase jury charge error since the jury’s assessment of Appellant’s

blameworthiness was made without any consideration of the defensive evidence.

Deprived of any mention of possible defenses, the jury could not have made an informed

decision about blameworthiness.

       On this record, the trial court’s refusal to instruct the jury on the defensive issues,

assuming it was error, was calculated to injure the rights of the defendant.

                                         Conclusion

       We reverse the court of appeals’ judgment and remand for a determination of

whether the trial court erred in refusing to instruct the jury on self-defense and necessity.




Delivered: June 27, 2018
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