        IN THE COURT OF CRIMINAL APPEALS
                    OF TEXAS

                                     NO. PD-0119-16



                        JOHN CHRISTOPHER IVY, Appellant

                                             v.

                                THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE SEVENTH COURT OF APPEALS
                             HAYS COUNTY

              Per curiam. Keller, P.J., dissents.

                                      OPINION

       Appellant and the complainant were in a dating relationship when the two became

involved in a physical altercation over the complainant’s cell phone. Ivy v. State, No. 07-

15-00023-CR (Tex. App.–Amarillo Jan. 5, 2016)(memorandum opinion not designated

for publication). The complainant testified that appellant snatched the phone out of her

hands because he believed she was “snapchatting” or sending nude photos of herself to
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other men. Appellant left the room with the phone and the complainant followed. The

complainant caught up with appellant, pushed him, and slapped him one or two times to

try and get her phone back. Appellant pushed the complainant to the ground, stepping on

her ribs and stomach. It’s not clear what became of the physical altercation at that point,

but a few minutes later appellant again put the complainant on the ground and struck her

twice in the face. The complainant was able to extricate herself and leave the premises.

The deputy who responded to the complainant’s emergency call testified that she spoke

with appellant on the phone and although he declined to meet with her, he stated that the

complainant had hit him in the face and lip. A friend of appellant’s testified that he saw

appellant an hour or so after the incident and that appellant appeared shaken, angry and

upset, and also that he had observed a knot on the back of appellant’s head and scratches

on his arms and face. Appellant requested a charge on self-defense. T EX. P ENAL C ODE §

9.31. The trial court denied the request.

       Appellant claimed on appeal that the trial court erred by denying the requested

self-defense charge. The State offered a number of reasons why appellant was not entitled

to the charge, but its primary argument was that appellant was not entitled to the charge

because he had provoked the difficulty. The bulk of the court of appeals’ analysis is

devoted to responding to the State’s arguments. Ivy, slip op. at 8-10. After refuting each

of the State’s arguments, the court of appeals held that while there were a number of

potential limitations on appellant’s right to self-defense, those were questions for the jury.
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As a result, the court concluded, the trial court erred in refusing to give the self-defense

charge. Id. at 10. The court then analyzed harm and concluded that the charge error was

reversible. Id. at 11-12.

       The State has filed a petition for discretionary review in which it argues for the

first time that the issue of self-defense was not raised because there was no evidence that

appellant reasonably believed force was immediately necessary to protect himself from

the complainant. See T EX. P ENAL C ODE § 9.31(a) (providing in part 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”); see also Smith v. State, 676 S.W.3d 584, 585 (Tex.

Crim. App. 1984)(recognizing that “in order to justify the submission of a charge to the

jury on the issue of self-defense, there must be some evidence in the record to show that

the defendant was in some apprehension or fear of being the recipient of the unlawful use

of force from the complainant”). Although the State did not make this specific argument

before the trial court, as the prevailing party on the ruling at trial, the State may advance

on appeal and on discretionary review any reason to uphold the trial court’s ruling. See

McClintock v. State, 444 S.W.3d 15, 20 (Tex. Crim. App. 2014)(as prevailing party at

trial, State need not raise particular argument in favor of trial court’s ruling in reply brief

on appeal as predicate to later raising it in discretionary review). The State’s argument

presents a theory of law which could potentially support upholding the trial court’s ruling.
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See Armendariz v. State, 123 S.W.3d 401, 404-06 (Tex. Crim. App. 2003)(where trial

court’s ruling denying motion to suppress was supported by record and correct under a

theory of law applicable to the case, court of appeals was obligated to uphold it), cert.

denied, 541 U.S. 974 (2004); see also State v. Mercado, 972 S.W.2d 75, 77 (Tex. Crim.

App. 1998)(noting this Court’s approval of appellate courts considering alternative

theories of law which support trial court’s decision).

       We grant the State’s petition for discretionary review, vacate the judgment of the

court of appeals, and remand this case to that court to address the State’s argument.


Delivered April 27, 2016
Do not publish
