                             NUMBER 13-13-00626-CR

                              COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG

DEDRICK ROY BONNER,                                                       Appellant,

                                           v.

THE STATE OF TEXAS,                                                       Appellee.


                      On appeal from the 24th District Court
                           of Victoria County, Texas.


                         MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Benavides and Perkes
             Memorandum Opinion by Justice Benavides

          By one issue, appellant Dedrick Roy Bonner alleges the trial court committed

reversible error by not including an instruction on self-defense in the jury charge. We

affirm.
                                             I.       BACKGROUND

          Bonner and a co-defendant, Donnell Dilworth, were both charged by a shared

indictment with two counts.              The first count was for the capital murder of Jerry Paul

James, and the second count was for the aggravated assault of Allaceia Stephany.                           See

TEX. PENAL CODE ANN. §§ 19.03, 22.02. (West, Westlaw through Chapter 46 2015 R.S.)

Both co-defendants pleaded not guilty and were tried together in a consolidated trial

before a jury.1

          The evidence showed that on April 24, 2012, Bonner and Dilworth visited James’s

apartment because, according to Bonner, James had wanted to fight Dilworth for calling

him a “snitch.” The men resolved their differences and everyone left.                     However, Bonner

asserts that James later called him and told Dilworth and Bonner to return because he

wanted to fight Dilworth after all.          Bonner and Dilworth returned and approached James’s

apartment.          Although the events that followed were disputed by witnesses at trial, all

concede that Dilworth and James were going to engage in a physical fight to resolve their

differences.

          Bonner testified during the jury trial and stated that James ran out of his apartment

at Dilworth, but then turned and came at Bonner, clutching knives in both hands. Bonner

testified that he started “backpedaling”, fearing for his life, pulled the handgun he carried

out of his waistband, and shot at James.               Bonner also testified he saw Stephany coming

at him and shot in her direction.




          1   Although both defendants were tried in a consolidated trial, this appeal only applies to defendant
Bonner.

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       Stephany disputed Bonner’s testimony and said that Dilworth and James were

“squaring off” to fight when Bonner walked up and “just shot James in the head”. She

stated she yelled at Bonner, and he turned, pointed the gun at her, and shot her in the

leg.

       At the conclusion of the trial, both Bonner and Dilworth requested a self-defense

instruction in the jury charge and filed their shared version of the proposed instruction

with the trial court. The State objected to the proposed instruction arguing that both

defendants had committed actions that denied their right to raise a self-defense claim.

The trial court agreed with the State and did not include a self-defense instruction in the

jury charge.   The jury found Bonner guilty of capital murder and aggravated assault.   He

was sentenced to life without parole and thirty-five years imprisonment, respectively, in

the Texas Department of Criminal Justice—Institutional Division.     This appeal followed.

                        II.      SELF DEFENSE IN THE JURY CHARGE

       By his sole issue, Bonner alleges that the trial court committed reversible error by

not including his requested instruction on self-defense in the jury charge.

       A.      Standard of Review

       “In analyzing a jury-charge issue, our first duty is to decide if error exists.”

Rodriguez v. State, 456 S.W.3d 271, 280 (Tex. App.—Houston [1st Dist.], no pet.) (citing

Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh’g)).       Only if

error is found do we then consider whether an objection to the charge was made and

analyze for harm.     Id.     “The degree of harm necessary for reversal depends upon

whether the error was preserved.”     Id. (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex.

Crim. App. 1996)).   If “an error is preserved with a timely objection…then the jury-charge

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error requires reversal if the appellant suffered some harm as a result of the error.”

Sanchez v. State, 376 S.W.3d 767, 774 (Tex. Crim. App. 2012) (citing Almanza, 686

S.W.2d at 171). The Court of Criminal Appeals “has interpreted this to mean that any

harm, regardless of degree, is sufficient to require reversal.”    Rodriguez, 456 S.W.3d at

280. If the appellant “failed to preserve jury-charge error, then we would have reviewed

the record for egregious harm.”    Id. The failure to preserve jury-charge error is not a

bar to appellate review, but rather it establishes the degree of harm necessary to the

reversal.     Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008).               When

determining whether a defendant suffered harm, “the reviewing court must consider: (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 relevant

information revealed by the record of the trial as a whole.”      Id. To establish harm, the

“appellant must have suffered actual, rather than theoretical, harm.”       Warner v. State,

245 S.W.3d at 461. Neither the State nor the appellant bears the burden on appeal to

prove harm.     Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).

       B.      Applicable Law

       Self-defense is defined by the use of force.

       (a) 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.
       The actor’s belief that the force was immediately necessary as described
       by this subsection is presumed to be reasonable if the actor:

       ....

       (2) did not provoke the person against whom the force was used; and (3)
       was not otherwise engaged in criminal activity, other than a Class C
       misdemeanor that is a violation of a law or ordinance regulating traffic at the

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         time the force was used.

TEX. PENAL CODE ANN. § 9.31(a)(2),(3).

         (b) The use of force against another is not justified:

         ....

         (4) if the actor provoked the other’s use or attempted use of unlawful force

          ....

         or (5) if the actor sought an explanation from or discussion with the other
         person concerning the actor’s differences with the other person while the
         actor was:

         (A) carrying a weapon in violation of Section 46.02; or

         (B) possessing or transporting a weapon in violation of Section 46.05.

TEX. PENAL CODE ANN. § 9.31(b)(4),(5)(A,B). “Reasonable belief” is defined as “a belief

that would be held by an ordinary and prudent man in the same circumstances as the

actor.” TEX. PENAL CODE ANN. § 1.07(a)(42).         In order to invoke the use of deadly force,

Bonner must show he met the elements under § 9.31 in addition to the elements under

§9.32.    See TEX. PENAL CODE ANN. § 9.31, 9.32.        The elements of self-defense involving

the use of deadly force are:

         (a) a person is justified in using deadly force against another: (1) if the actor
         would be justified in using force against another under Section 9.31 and (2)
         when and to the degree the actor reasonably believes the deadly force is
         immediately necessary:

         (A) to protect the actor against the other’s use or attempted use of unlawful
         deadly force.

TEX. PENAL CODE ANN. § 9.32(a)(1),(2)(A).        However, the belief that:

         (b) deadly force was immediately necessary as described by that
         subdivision is presumed to be reasonable if the actor:


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        ....

        (2) did not provoke the person against whom the force was used; and (3)
        was not otherwise engaged in criminal activity, other than a Class C
        misdemeanor that is a violation of a law. . . .”

Id. at (b)(2),(3).

        It is well settled that if the evidence raises the issue of self-defense, the accused

is entitled to have it submitted to the jury.   Dyson v. State, 672 S.W.2d 460, 463 (Tex.

Crim. App. 1984) (en banc). However, even if the evidence viewed in the light most

favorable to the defendant raises a “prima-facie defense, no error is shown in the denial

of a defensive instruction if the evidence establishes as a matter of law that the defendant

is not entitled to rely on this defense.”   Johnson v. State, 157 S.W.3d 48, 50 (Tex. Crim.

App.—Waco 2004, no pet.); see Dyson, 672 S.W.2d at 463-65. A defendant is “not

entitled to a self-defense instruction if the evidence establishes as a matter of law that

one of the exceptions to self-defense listed in section 9.31(b) applies.”    Id.; see also TEX.

PENAL CODE ANN. § 9.31(b).

        C.      Analysis

        Bonner argues that he was entitled to a self-defense instruction in the jury charge,

his attorney requested one, and the trial court erred in denying the instruction. The State

challenges that assertion stating that Bonner was not entitled to a self-defense instruction

based on the exceptions found in section 9.31(b) of the penal code.         Id. We agree with

the State’s assertions.

        Although there were factual disputes in the testimony as to how the shooting

occurred, Bonner himself testified to facts that did not entitle him to a self-defense

instruction. Bonner testified that he and Dilworth went over the James’s apartment to

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“resolve an issue” of Dilworth calling James a “snitch.” Both defendants believed that

James had spoken to the police regarding a robbery that occurred a short time before this

altercation.    Bonner testified that Dilworth and he were involved in that robbery and

thought James had “snitched” to the police. Bonner also testified that he was in “a bad

life” and always carried a gun for his protection.    He admitted he was affiliated with a

gang, although he stated he was not a member.

       Even though Bonner initially claims the men resolved their differences, Dilworth

and Bonner returned to James’s apartment again because James wanted to “fight it out”.

In other words, Bonner and Dilworth returned to James’s apartment knowing that an

altercation would take place.    A “defendant is not entitled to a self-defense instruction if

the evidence establishes as a matter of law that one of the exceptions to self-defense

listed in section 9.31(b) applies.”   Johnson, 157 S.W.3d at 50; Williams v. State, 35

S.W.3d 783, 786 (Tex. App.—Beaumont 2001, pet. ref’d); see also TEX. PENAL CODE ANN.

§ 9.31(b).     And “force used in self-defense is not justified…if the actor provoked the

other’s use or attempted use of unlawful force.”         Dyson, 672 S.W.2d at 463.         By

returning to James’s apartment, Dilworth and Bonner both provoked the victim’s use of

force, thereby extinguishing any possible claim of self-defense.     See id.

       Additionally, by going to the apartment, Dilworth and Bonner sought out the victim

to discuss their differences while Bonner was carrying a handgun.              Under Section

9.31(b)(5)(A), the use of force or deadly force would not be justified.    TEX. PENAL CODE

ANN. § (5)(A). If the “evidence is undisputed that force was not justified as a matter of

law because of section 9.31(b)(5), then a self-defense instruction is barred.”      Williams,

35 S.W.3d at 786. In contrast, if Bonner had sought out another person to discuss a

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problem with, and gotten into an altercation with James, he could have been entitled to

the self-defense instruction.     In Johnson v. State, the court found the defendant was

entitled to a self-defense instruction.      Johnson, 157 S.W.3d at 51-52.       Johnson had

gone to his ex-girlfriend’s residence looking to speak with her, and got into an altercation

with her current boyfriend who was residing there.       Id. A scuffle ensued, and Johnson

shot the boyfriend.    Id.   The Waco Court held that because Johnson had gone to

discuss an issue with a person other than the victim, he was entitled to a self-defense

instruction in the jury charge.     Id.     Here, Bonner testified that the men went to the

apartment seeking out James, so the proper scenario that would have entitled Bonner to

the instruction does not apply.

       Even though Bonner’s attorney requested a defensive instruction on self-defense,

the testimony from Bonner himself solidified the fact that he was not entitled to such

instruction.   See TEX. PENAL CODE ANN. §9.31.            The trial court did not abuse its

discretion in refusing to include the proposed instruction in the jury charge.   Because we

do not find error, there is no need to further evaluate for harm.   Almanza, 686 S.W2d at

174.

                                     III.      CONCLUSION

       We affirm the judgment of the trial court.


                                                            GINA M. BENAVIDES,
                                                            Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
9th day of July, 2015.


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