Opinion filed March 8, 2013




                                              In The

         Eleventh Court of Appeals
                                            __________

                                      No. 11-11-00023-CR
                                          __________

                       KENNETH ELWOOD MABES, Appellant

                                                 V.

                                STATE OF TEXAS, Appellee


                             On Appeal from the 52nd District Court
                                      Coryell County, Texas
                              Trial Court Cause No. FAM-10-20214


                              M E M O RAN D U M O PI N I O N
       The jury convicted Kenneth Elwood Mabes, Appellant, of the offense of murder and
assessed his punishment at confinement for sixty years and a fine of $7,500. In a single issue on
appeal, Appellant complains of error in the jury charge relating to his claim of self-defense. The
State failed to file a brief. We affirm.
                                           Factual Summary
       It was undisputed at trial that Appellant shot and killed David Eric Minney, the boyfriend
of Appellant’s estranged wife, Donna Gail Mabes (who had changed her name to Donna Gail
Minney about a month before the trial). The shooting occurred outside the home where the
victim and Donna lived with two of Appellant and Donna’s children: a sixteen-year-old daughter
and a fourteen-year-old son. Visitation between Appellant and his children had become an issue
of contention between Appellant and Donna and their teenaged daughter.
       Sometime around 9:00 p.m. on December 28, 2009, Appellant arrived to pick up his son,
K.C.M., for visitation. Donna told Appellant to wait at his vehicle while she got K.C.M. K.C.M.
went outside and got in the pickup with Appellant. Appellant did not leave immediately, and
Donna returned to the door when she heard Appellant honking his horn. She and Appellant
discussed when K.C.M. needed to be brought back, and Appellant got angry and started yelling.
According to K.C.M., Appellant and Donna were yelling at each other. The victim came to the
door and told Appellant to leave. Donna testified that, instead of leaving, Appellant got out of
his pickup and walked toward Donna and the victim. K.C.M. testified that, as Appellant stepped
out of his pickup, Appellant said to the victim, “[Y]ou want to go.” As Appellant approached,
the victim reached inside the house and picked up a small wooden bat. An officer later measured
the length of the bat to be twenty-two inches long and estimated its weight to be less than one
pound. Appellant started yelling at the victim, saying that the visitation issue was none of the
victim’s business. Appellant also repeated a statement that he had made to the victim on a
previous occasion, saying: “You f----d up my family. You mother f----r.” The victim informed
Appellant that he was trespassing and that if he did not leave the victim would call 9-1-1.
       Appellant returned to his pickup, reached over toward the passenger’s side, got back out
of his pickup, and walked toward Donna and the victim. Donna was standing in the doorway,
and the victim was standing on the front porch. As Appellant exited his pickup, he had his hand
tucked behind his leg and said, “You want to call 9-1-1 you mother f----r?” Appellant walked
toward the victim and Donna and raised his hand. Donna saw a gun and screamed, “He’s got a
gun.” As the victim started pivoting to turn back toward the house, Appellant started shooting,
firing consecutive shots. Donna testified that the victim did not in any way attack Appellant, that
Appellant was not defending himself, and that Appellant was the aggressor. K.C.M. likewise
testified that the victim did not swing the bat or threaten Appellant, that the victim just wanted
Appellant to leave, that Appellant was the aggressor, and that Appellant was walking quickly
toward the victim as Appellant began shooting.
       Appellant, however, claimed to have acted in self-defense. Appellant testified that the
victim became angry and agitated, held the bat at shoulder height, and made faces at Appellant.
After Appellant told the victim that what was occurring was none of the victim’s business, the
victim threatened to kill Appellant and started walking toward Appellant’s pickup. Appellant
said that he reached for his keys in the console—so he could back out of the driveway—but
could not find his keys. When he could not find his keys, Appellant “panicked,” reached in the
glove box, and grabbed his pistol. We note that this testimony does not comport with that of
K.C.M., who testified that, when Appellant returned to the pickup, Appellant took the keys out of
the ignition, unlocked the glove compartment, and retrieved the gun from the glove
compartment.
        Appellant said that he was scared and feared for his life, afraid that the victim would hit
Appellant with the bat while he was sitting in his pickup. He got out of his pickup with the
pistol, and the victim was “right on” Appellant. Appellant said that he told the victim to calm
down and held the pistol out where the victim could see it. Appellant testified that the victim
then swung at Appellant with the bat but missed and that, as the victim raised the bat for the
second time, Appellant shot the victim in the leg “[j]ust to stop him.” Appellant said that the
victim kept coming toward him and that Appellant fired five more times, expending all of the
bullets in his revolver.
        After the shooting, both Appellant and Donna called 9-1-1. Appellant remained at the
scene and cooperated with police. The police investigation revealed that there was blood in the
area of the porch, not out in the yard. According to expert testimony, based upon the lack of
gunshot residue on the victim’s shorts, the muzzle of Appellant’s revolver was more than four
feet from the victim when it was fired at the victim’s leg. The victim died as a result of seven
gunshot wounds, including two to the head, one to the chest, one to the trunk, one to the right
arm, one to the left hand, and one to the right leg.
                                         Jury Charge Error
        In his sole issue, Appellant complains about the following portion of the jury charge on
self-defense: “[I]f you believe beyond a reasonable doubt that the State has proven that the facts
giving rise to the presumption of reasonable belief that force was immediately necessary, do not
exist, then you will find against the defendant on his plea of self-defense.” Appellant asserts that
this language was erroneous because the “reasonableness of a self-defense claim is not
exclusively decided by the presumption” and because the instruction did not allow the jury to
“consider whether or not Appellant’s belief that force was immediately necessary” was
reasonable absent the presumption.
       Appellate review of error in a jury charge involves a two-step process. Abdnor v. State,
871 S.W.2d 726, 731 (Tex. Crim. App. 1994). We must first determine whether error occurred.
If so, we must then evaluate whether the error requires reversal. Id. at 731–32. The record
shows that Appellant did not object or otherwise make the trial court aware of the complaint that
he now asserts on appeal. In his brief, Appellant acknowledges the lack of a trial objection and
correctly states that, for an unpreserved error in the jury charge to constitute reversible error, it
must have resulted in “egregious harm” to Appellant. See Almanza v. State, 686 S.W.2d 157, 171
(Tex. Crim. App. 1985); see also TEX. CODE CRIM. PROC. ANN. art. 36.19 (West 2006). We must
determine whether the error was so egregious as to deprive appellant of a fair and impartial trial.
Cartwright v. State, 833 S.W.2d 134, 136 (Tex. Crim. App. 1992); Almanza, 686 S.W.2d at 171.
An egregious harm determination must be based on a finding of actual rather than theoretical
harm. Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011). For actual harm, the charge
error must have affected the very basis of the case, deprived the defendant of a valuable right, or
vitally affected a defensive theory. Id.; Almanza, 686 S.W.2d at 172. The degree of harm is
determined by considering the charge; the state of the evidence, including contested issues and
the weight of the probative evidence; the parties’ arguments; and all other relevant information in
the record. Cosio, 353 S.W.3d at 777.
       The trial court’s charge reads in relevant part as follows:
                                                 V.
               Now, bearing in mind the foregoing instructions, if you find from the
       evidence beyond a reasonable doubt that on or about the 28th day of December,
       2009, in Coryell County, Texas, the defendant, KENNETH ELWOOD MABES,
       did then and there, without justification intentionally or knowingly cause the
       death of an individual, namely, David Minney, by shooting David Minney, you
       will find the defendant guilty of murder and so say by your verdict, but if you do
       not so believe, or if you have a reasonable doubt thereof, you will acquit the
       defendant and say by your verdict “Not Guilty.”
                                                VI.
               Upon the law of self[-]defense you are instructed that a person is justified
       in using force against another when and to the decree [sic] he reasonably believes
       the force is immediately necessary to protect himself against the other’s use or
       attempted use of unlawful force.
              The use of force against another is not justified in response to verbal
       provocation alone.
       A person is justified in using deadly force against another:
               (1) If the person would be justified in using force against
       the other; and
              (2) When and to the degree the person reasonably believes
       the deadly force is immediately necessary;
                       (A) To protect himself against the other’s
               use or attempted use of unlawful deadly force; or
                      (B) To prevent the other’s imminent
               commission of aggravated kidnapping, murder,
               sexual assault, aggravated sexual assault, robbery,
               or aggravated robbery.
The defendant’s belief that the deadly force was immediately necessary is
presumed to be reasonable if the defendant:
             (1) Knew or had reason to believe that the person against
       whom deadly force was used:
                       (A) unlawfully and with force entered, or
               was attempting to enter unlawfully and with force,
               the actor’s occupied habitation, vehicle, or place of
               business or employment;
                       (B) unlawfully and with force removed, or
               was attempting to remove unlawfully and with
               force, the defendant from the defendant’s habitation,
               vehicle, or place of business or employment; or
                      (C) was committing or attempting to commit
               aggravated kidnapping, murder, sexual assault,
               aggravated sexual assault, robbery, or aggravated
               robbery.
               (2) the defendant did not provoke the person against whom
       the force was used; and
               (3) the defendant 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 time the force was used.
A person who has a right to be present at the location where the deadly force is
used, who has not provoked the person against whom the deadly force is used,
and who is not engaged in criminal activity at the time the deadly force is used is
not required to retreat before using deadly force.
In determining whether an actor reasonably believed that the use of deadly force
was necessary, a finder of fact may not consider whether the actor failed to retreat.
“Reasonable belief” means a belief that would be held by an ordinary and prudent
person in the same circumstances as the defendant.
         “Deadly force” means force that is intended or known by the person using it to
         cause, or in the manner of its use or intended use is capable of causing death or
         serious bodily injury.
                   ....
                The presumption of reasonable belief applies unless the State proves
         beyond a reasonable doubt that the facts giving rise to the presumption do not
         exist.
                 If the State fails to prove beyond a reasonable doubt that the facts giving
         rise to the presumption do not exist, the jury must find that the presumed facts
         exist.
                Even though the jury may find the presumed fact does not exist, the State
         must prove beyond a reasonable doubt each of the elements of the offense
         charged.
                 If the jury has a reasonable doubt as to whether the presumed facts exist,
         the presumption applies and the jury must consider the presumed fact to exist.
                   ....
                You are further instructed, however, that if you believe from the evidence
         beyond a reasonable doubt that at the time and place in question David Minney
         was not using or attempting to use unlawful deadly force on the defendant, or if
         you believe beyond a reasonable doubt that the State has proven that the facts
         giving rise to the presumption of reasonable belief that force was immediately
         necessary, do not exist, then you will find against the defendant on his plea of self-
         defense.
                Now, therefore, bearing in mind the foregoing definitions, instructions,
         and presumption, if you believe from the evidence beyond a reasonable doubt that
         on or about the 28th day of December, 2009, in Coryell County, Texas, the
         defendant, KENNETH ELWOOD MABES, did then and there, intentionally or
         knowingly cause the death of an individual, namely, David Minney, by shooting
         David Minney, as alleged in the indictment; but you further find from the
         evidence, or have a reasonable doubt thereof, that the defendant reasonably
         believed, or is presumed to have reasonably believed as viewed from his
         standpoint alone that deadly force when and to the degree used, if it was, was
         immediately necessary to protect himself against the use or attempted use of
         unlawful deadly force by the said David Minney you will acquit the defendant
         and say by your verdict “Not Guilty” (emphasis added).
Appellant’s contention is that the italicized portion of the jury charge 1 was erroneous because the
“reasonableness of a self-defense claim is not exclusively decided by the presumption” and
because the instruction did not allow the jury to consider whether, absent the presumption,

          1
            We note that the paragraph containing the complained-of instruction tracked Section 106.8A of the Criminal Forms
and Trial Manual of the Texas Practice Series. 8 MICHAEL J. MCCORMICK ET AL., TEXAS PRACTICE SERIES: CRIMINAL FORMS AND
TRIAL MANUAL § 106.8A (11th ed.) (self-defense—converse on presumption of reasonable belief).
Appellant’s belief was reasonable.      We agree with Appellant that the reasonableness of a
defendant’s belief that deadly force was immediately necessary to protect himself is not limited
to situations in which the presumption of reasonableness applies. A defendant’s belief may be
reasonable absent the presumption.
         The same argument made by Appellant in this appeal was made in Gonzalez v. State, No.
08-11-00147-CR, 2012 WL 4101900 (Tex. App.—El Paso Sept. 19, 2012, no pet. h.) (not
designated for publication). In that case, the El Paso court assumed, without deciding, that the
charge was erroneous and addressed the issue of harm, holding that the defendant failed to
demonstrate egregious harm because the jury charge “as a whole” did not misinform the jury on
the law of self-defense. 2012 WL 4101900, at *2. We reach the same conclusion in this case.
         With the exception of the paragraph about which Appellant complains, the jury charge
tracked the language of the applicable statutes and was otherwise correct regarding the law of
self-defense. See TEX. PENAL CODE ANN. §§ 9.01, 9.31, 9.32 (West 2011). In the application
paragraph that immediately followed the complained-of instruction, the trial court correctly
applied the law to the facts by instructing the jury to find Appellant “Not Guilty” if it found or
had a reasonable doubt that Appellant, as viewed from his standpoint, “reasonably believed, or is
presumed to have reasonably believed” (emphasis added) that deadly force was immediately
necessary to protect himself against the use or attempted use of unlawful deadly force by the
victim. The jury was also instructed in the first paragraph set out above to find Appellant guilty
only if it found beyond a reasonable doubt that he acted “without justification.” Immediately
following that paragraph, the trial court informed the jury that a person is “justified” in using
force against another person when and to the degree he “reasonably believes” such force is
immediately necessary to protect himself against the other’s use or attempted use of unlawful
force.
         Furthermore, the state of the evidence does not weigh in Appellant’s favor when
considering egregious harm. With respect to the issue of self-defense, Appellant’s version of the
events surrounding his shooting of the victim was contradicted by the other witnesses and by the
physical evidence. In addition to the evidence set out above, there were other witnesses who
contradicted Appellant’s version. There was also testimony that Appellant had been employed
by the Texas Department of Criminal Justice for over nine years and, as part of that employment,
had been trained in the use of force, firearms, and defensive tactics.
       During his argument to the jury, defense counsel argued that the presumption applied
because the victim was attempting to enter Appellant’s vehicle. He also argued in general terms
regarding Appellant’s reasonable belief that deadly force was necessary. The prosecutor argued
that, based upon the evidence, Appellant was not acting in self-defense. However, the prosecutor
did not address the presumption of reasonable belief or the converse of that presumption and did
not point out or rely upon the objectionable portion of the jury charge.
                                            Conclusion
       After reviewing the entire jury charge; the state of the evidence, including the contested
issues and the weight of the probative evidence; the arguments of counsel; and other relevant
information, we conclude that the complained-of error in the jury charge was not so egregious as
to deny Appellant a fair and impartial trial. Appellant’s sole issue is overruled.
       The judgment of the trial court is affirmed.




                                                              MIKE WILLSON
                                                              JUSTICE


March 8, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.
