Opinion issued January 23, 2014.




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-12-00763-CR
                           ———————————
                   HAROLD WAYNE CHERRY, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                    On Appeal from the 23rd District Court
                          Brazoria County, Texas
                         Trial Court Case No. 65798


                         MEMORANDUM OPINION

      A jury convicted Harold Wayne Cherry of aggravated assault and assessed

punishment at eight years’ imprisonment. 1 In his sole issue on appeal, Cherry

contends that the trial court erred by charging the jury on the law of provocation,


1
      TEX. PENAL CODE ANN. § 22.02(A)(1) (West 2011).
despite his timely objection that there was insufficient evidence to raise the issue.

We affirm.

                                    Background

      Late one summer evening, Harold Cherry went to Deborah Schall’s trailer

home to pick up a paycheck that had been delivered there. Cherry and Schall had

been in a relationship for about eight years. For a portion of that time, Schall, her

nineteen-year-old son, Jeffrey Couchman, and Cherry lived together in Schall’s

trailer home.

      That night, Cherry and Schall got into a heated argument when Schall

refused to give Cherry his paycheck. Couchman testified that when Cherry would

not leave the house, he intervened and asked Cherry to leave. Cherry responded by

starting a fistfight with Couchman. During the fight, the two broke the front porch

railing and tumbled to the ground. While rolling on the ground, Cherry bit off the

tip of Couchman’s right index finger. Cherry then left in his truck.

       Law enforcement officials, including Alvin Police Department Officer C.

Fullen, responded to reports of a domestic disturbance at Schall’s home. While

Couchman waited for emergency medical assistance, he gave an oral statement to

Officer Fullen blaming Cherry for starting the fight. Couchman reported that

Cherry was drunk when he came into the house and demanded Schall to give him

his check. Cherry beat on the door and broke a kitchen window. Despite Schall’s


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repeated requests, Cherry refused to leave. Couchman also reported that Cherry

“man-handled” his mother and shut a door on her arm. Cherry ignored

Couchman’s requests for him to leave, shoved Couchman onto the porch, and

attempted to hit him. Cherry wrestled Couchman to the ground, bit his left middle

finger, and then bit off the tip of his right index finger. Officer Fullen observed

bruises on Schall’s arm consistent with Couchman’s version of the events.

      Almost a year later, Couchman gave a second statement. He recanted his

first version of the fight and instead took responsibility for starting the fight.

Couchman reported that he was holding Cherry to the ground when Cherry bit his

finger. Couchman also said that Cherry was not drunk when he arrived at the

house.

      At trial, only Couchman and two law enforcement officers testified.

Couchman testified that he feared “get[ting] in trouble” for starting the fight with

Cherry, so he lied in his statement to Officer Fullen. He testified that he provoked

Cherry and hit him 15 to 20 times before Cherry was able to escape. Couchman

also testified that he had visited Cherry in jail and did not want Cherry to be

prosecuted.

      Over Cherry’s objection, the jury charge regarding self-defense included a

provocation instruction. The charge stated:

      In this case, if you find and believe from the evidence beyond a
      reasonable doubt that the defendant, HAROLD WAYNE CHERRY,
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      immediately before the difficulty, then and there did some act, or used
      some language, or did both, as the case may be, with intent on his, the
      defendant’s part, to produce the occasion for the injury of Jeffery
      Couchman, Jr., and to bring on the difficulty with Jeffery Couchman,
      Jr., and that such words and conduct on the defendant’s part, if there
      were such, were reasonably calculated to, and did provoke the
      difficulty, and that on such account Jeffery Couchman, Jr., attacked
      defendant, or reasonably appeared to defendant to so attack him or to
      be attempting to so attack him, and that the defendant then injured the
      said Jeffrey Couchman, Jr., by the use of force, to wit, by biting
      Jeffery Couchman, Jr.’s, finger in pursuance of his original design, if
      you find there was such a design, then you will find the defendant
      guilty of Aggravated Assault.

      On the other hand, if you find from the evidence that the acts done or
      language used by the defendant, if any, were not, under the
      circumstances, reasonably calculated or intended to provoke a
      difficulty or an attack by Jeffery Couchman, Jr., upon defendant, or if
      you have a reasonable doubt thereof, then, in such event, defendant’s
      right of self-defense would in no way be abridged, impaired, or
      lessened, and if you find, or if you have a reasonable doubt thereof
      you will decide the issue of self-defense in accordance with the law on
      that subject given in other portions of this charge, wholly disregarding
      and without reference to the law on the subject of provoking the
      difficulty.

A jury convicted Cherry of aggravated assault and, because of three prior

convictions, assessed punishment at eight years’ imprisonment. Cherry timely

appealed.

                             Provocation Instruction

      Cherry contends that the trial court erred by including a provocation

instruction because there was insufficient evidence that he provoked the fight with

Couchman. We disagree. We conclude that there was sufficient evidence for a jury


                                         4
to find that Cherry provoked Couchman. The trial court did not err by instructing

the jury on provocation.

A.    Standard of review

      We follow a two-step process when reviewing jury charges. Ngo v. State,

175 S.W.3d 738, 744 (Tex. Crim. App. 2005); Cornett v. State, 405 S.W.3d 752,

757 (Tex. App.—Houston [1st Dist.] 2013, pet ref’d.). First, we determine whether

there is an error in the charge. Cornett, 405 S.W.3d at 757. Second, if there is an

error, we determine whether the error caused harm requiring reversal of the

conviction. Id. We first address whether there was any error in the charge.

B.    The trial court did not err by including a provocation instruction

      The Texas Penal Code states that a person may justifiably use force against

another when he reasonably believes that the force is immediately necessary to

protect himself from the other person’s attempted or actual use of unlawful force.2

A defendant, however, may forfeit his right to self-defense if he provokes the

attack. Smith v. State, 965 S.W.2d 509, 512 (Tex. Crim. App. 1998). When a

criminal defendant provokes the attack, he may not rely on the excuse of self-

defense unless (1) the defendant “abandons the encounter or clearly communicates

to the other [person] his intent to do so reasonably believing he cannot safely

abandon the encounter and (2) the other [person] nevertheless continues or

2
      TEX. PENAL CODE ANN. §§ 9.02, 9.31(a) (West 2011).

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attempts to use unlawful force against [him] . . . .” TEX. PENAL CODE ANN.

9.31(b)(4) (West 2013).

      An instruction on the law of provocation or “provoking-the-difficulty” limits

a defendant’s right to claim self-defense. Smith, 965 S.W.2d at 512. When

reviewing a challenge to a jury charge that includes a provocation instruction, the

appellate court considers whether there was “sufficient evidence from which a

rational jury could have found provocation beyond a reasonable doubt, viewing the

evidence in the light most favorable to giving the instruction.” Id. at 514–15; see

also Reeves v. State, No. 01-10-00395-CR, 2012 WL 5544770, at *3 (Tex. App.—

Houston [1st Dist.] Nov. 15, 2012) (mem. op., not designated for publication),

aff’d, No. PD-1711-12, 2013 WL 5221142, at *1 (Tex. Crim. App. 2013). There is

sufficient evidence of provocation when (1) the defendant did some act or used

some words that provoked the attack on him, (2) the act or words were reasonably

calculated to provoke the attack, and (3) the act was done or the words were used

for the purpose and with the intent that the defendant would have a pretext for

inflicting harm upon the other. Smith, 965 S.W.2d at 513. The three elements of

provocation are questions of fact and may be proven by circumstantial evidence.

Id. at 513, 516. Cherry argues that the evidence was insufficient to prove all of the

elements.




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      We turn now to consider the first element—whether Cherry provoked

Couchman’s attack.

      1.    Evidence of Cherry’s actions and words was sufficient for a jury
            to find that he provoked Couchman’s attack

      The first element of provocation requires that the defendant do some act or

use some words to provoke an attack. Smith, 965 S.W.2d at 514. While the acts or

words causing the attack are normally directed at the victim, they may be directed

at a third party. Id. at 514. Cherry concedes that “a man arguing with another

man’s mother” could have provoked a son to respond as Couchman did. Cherry,

however, asserts that Schall initiated the argument by not returning his check and

he responded to her refusal to return his property. According to Cherry, he was not

the first aggressor, and, as a result, there was insufficient evidence that he

provoked Couchman’s attack.

      We review the record evidence in the light most favorable to the instruction,

deferring to the “jury’s credibility and weight determinations because the jury is

the sole judge of the witnesses’ credibility and the weight to be given their

testimony.” Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013); see

also Juarez v. State, 409 S.W.3d 156, 161 (Tex. App.—Houston [1st Dist.] 2013,

pet ref’d.). The State does not have to prove the exact words or acts that provoked

the attack; rather, “the jury must merely be able to find that there was some

provoking act or words.” Smith, 965 S.W.2d at 515. Couchman gave two different

                                        7
accounts of the fight with Cherry. We conclude that a reasonable jury could have

found Couchman’s first statement more credible and that it provided sufficient

evidence that Cherry provoked Couchman.

      Shortly after the fight, Couchman gave a statement to Officer Fullen.

Couchman said that Cherry drunkenly man-handled Schall and then shut a door on

her arm. Couchman told the officer that he also asked Cherry to leave. Cherry

refused and shoved Couchman, initiating a physical fight that ended when Cherry

bit off the tip of Couchman’s finger. Based on Couchman’s first statement to

Officer Fullen, there is some evidence that Cherry provoked the fight with

Couchman.

      Despite this evidence, Cherry relies on Trevino v. State, 204 S.W. 996, 999

(Tex. Crim. App. 1918) to support his contention that he did not provoke

Couchman. The Trevino court held that there was no evidence of provocation when

there was uncontested evidence that the other party initiated the fight. Id. at 998–

99. The Court of Criminal Appeals explained,

       [W]here the accused is not in the wrong originally, but during the
      progress of the difficulty he uses such language, it would not be
      considered as provoking a difficulty. Provoking a difficulty, as before
      stated, is based upon the proposition that the accused does some act or
      performs some conduct, or uses such words as would occasion or
      provoke a difficulty, and with that purpose in view.

Id. at 999. The facts in Trevino are distinguishable from this case. There was no

evidence that the Trevino defendant initiated the difficulty. Id. at 998. Rather, the

                                         8
dancehall fight began when another man put his hand on or struck Trevino’s

shoulder for “interfering with the dancing.” 204 S.W. 997. The two men exited the

dance hall and began to fight. Id. During the fight, Trevino shot and killed the

other man. Id. The court held that while Trevino’s words were offensive—he

called the other a “son of a harlot”—he did not provoke the fight because the

argument began when the other man put his hand on Trevino’s shoulder. Id.

      Unlike Trevino, there is evidence that Cherry provoked the difficulty with

Couchman. Cherry was drunk when he arrived at Schall’s house and refused to

leave, despite Schall’s multiple requests to do so. Cherry “man-handled” Schall in

front of her son. Furthermore, in his first statement, Couchman told police that

Cherry instigated the fight by pushing Couchman, swinging at him, and wrestling

him to the ground.

      Because there is evidence that Cherry initiated the difficulty with Schall and

with Couchman, we hold that a rational jury could find Cherry provoked

Couchman.

      2.    Cherry’s actions and words were reasonably calculated to
            provoke Couchman

      The second element of provocation asks whether Cherry’s acts or words

were reasonably calculated to provoke the attack. Smith, 965 S.W.2d at 513. To

provoke an attack, the act or words must have a “reasonable tendency to cause an

attack.” Id.; see also Morrison v. State, 256 S.W.2d 410, 411 (Tex. Crim. App.

                                         9
1953) (“. . . words alone may provoke a difficulty, they must clearly be designed to

do so.”). Cherry argues that his actions and words were not reasonably calculated

to provoke Couchman because his initial argument was with Schall and there is no

evidence that he knew Couchman was home when that argument began. We

conclude that Cherry’s actions were reasonably calculated to provoke the fight

with Couchman.

      A jury may rely on circumstantial evidence to find beyond a reasonable

doubt that defendant’s actions and words were reasonably capable of or had a

reasonable tendency to cause an attack. Smith, 965 S.W.2d at 517. A jury may also

find provocation based on the words or acts “in conjunction with the relations of

the parties. . . .” Id. Word or acts directed at a third party may also provoke a

difficulty. Bennett v. State, 726 S.W.2d 32, 36 n.3 (Tex. Crim. App. 1986).

      According to Couchman’s original statement, Cherry “man-handled” Schall,

shut the door on her arm, and refused to leave the house when she asked him to go.

As Cherry concedes in his brief, it is reasonable to conclude that such actions

would provoke a son to defend his mother. Further, according to Couchman’s first

statement, after he asked Cherry to leave, Cherry shoved him onto the porch,

initiating a fistfight during which Cherry bit off his finger.

      We hold that the evidence of Cherry’s words and actions toward Schall, as

well as his acts of physical violence toward Couchman support the jury’s


                                           10
conclusion that Cherry’s acts and words were reasonably calculated to provoke

Couchman.

      3.    Cherry intended to provoke Couchman

      We turn now to the third element of provocation: whether there was

evidence that Cherry intended his words or acts to have the purpose and intent of

providing a pretext for assaulting Couchman. Smith, 965 S.W.2d at 518. The

record must show that Cherry intended his acts to have a provocative effect “as a

part of a larger plan of doing the victim harm.” Smith, 965 S.W.2d at 518. We

conclude it does.

      Even if a defendant acts wrongly and provokes an attack by another, he will

not lose his right to self-defense if he did “no[t] inten[d] that the act would have

such an effect as a part of a larger plan” of harming the victim. Id. Whether a

defendant had the requisite intent is a question of fact for the jury that can be

determined based on the totality of the circumstances. Id. (citing Hernandez v.

State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991). Intent can be identified by

reviewing the defendant’s actions during or after the alleged provocation and his

prior acts. Smith, 965 S.W.2d at 518; see Matthews v. State, 708 S.W.2d 835, 838

(Tex. Crim. App. 1986) (stabbing victim 24 times established intent). Because

intent is a fact issue, we generally defer to the jury’s determination that there is

evidence that the defendant acted with a “certain craftiness and design” in injuring


                                        11
his victim. Smith, 965 S.W.2d at 518 (quoting Gray v. State, 114 S.W. 635, 645

(Tex. Crim. App. 1908)). A guilty verdict is “an implicit finding rejecting the

defendant’s self-defense theory.” Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim.

App. 1991).

      In a few “exceptional and extraordinary situations,” the Court of Criminal

Appeals has held there was insufficient evidence to support a jury’s finding of

intent. Smith, 965 S.W.2d at 519. For example, in Bennett, there was insufficient

evidence of provocation when “it was inconceivable that the defendant

orchestrated [a] set of events as a ploy to kill a man he did not even know.” Id. at

518 (citing Bennett, 726 S.W. at 36). The Court of Criminal Appeals has also held

evidence was insufficient to include a provocation instruction when the defendant

did not arrange or intend to bring on an attack. Wampler v. State, 234 S.W.2d 1009

(Tex. Crim. App. 1950). In Wampler, the defendant was a night watchman

conducting a routine inspection of a door when the victim occupant, fearing an

invader, opened the door and shot at the watchman. Id. at 1009–10. The watchman

returned fire, killing the occupant. Id. The Court reasoned that there was

insufficient evidence that the defendant meant to provoke the occupant by

inspecting the door. Id. The record in this case does not reflect such extraordinary

circumstances.




                                        12
      Cherry argues he did not intend to provoke Couchman: he did not know

Couchman was home; there is no evidence that he had a strained relationship with

Couchman; and there is no evidence that Cherry had committed domestic violence

against Schall or Couchman in the past. We disagree that these matters

conclusively show Cherry did not act with a “certain craftiness and design” when

injuring his victim.

      According to Couchman’s first statement, Cherry was drunk, man-handled

Schall, and hit her arm with the door. Couchman also reported that despite repeated

requests to leave, Cherry remained at the trailer. When Couchman asked Cherry to

leave, he did not leave and instead pushed Couchman. Cherry’s refusal to leave

and pushing Couchman support the jury’s conclusion that Cherry intended to harm

Couchman.

      We hold that the evidence was sufficient that a rational jury could find

beyond a reasonable doubt that Cherry’s actions and words provoked Couchman,

were reasonably calculated to provoke Couchman, and were done with the intent to

harm Couchman. The trial court, therefore, did not err by submitting the

provocation instruction to the jury.

      We overrule Cherry’s sole issue.

                                       Conclusion

      We affirm.


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                                                _____________________________
                                                Harvey Brown
                                                Justice



Panel consists of Justices Jennings, Sharp, and Brown.
Do Not Publish. TEX. R. APP. P. 47.2(b).




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