Opinion issued October 29, 2013.




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                         ————————————
                            NO. 01-12-00638-CR
                          ———————————
                   ROLLIN CALVIN O’NEAL, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 232nd District Court
                          Harris County, Texas
                      Trial Court Case No. 1279130


                        MEMORANDUM OPINION

      Rollin Calvin O’Neal appeals a judgment convicting him of murder. See

TEX. PENAL CODE ANN. § 19.02 (West 2011). A jury found O’Neal guilty and

assessed his punishment at fifty years’ confinement. O’Neal raises one issue on
appeal. He maintains the trial court erred in denying his request to instruct the jury

on defense of a third person. See TEX. PENAL CODE ANN. § 9.33 (West 2011). We

affirm.

                                    Background

      On May 21, 2010, Shardell Banks engaged in an act of prostitution with

Santos Fuentes at her home. The next day, while Banks was standing in her

driveway, Banks saw Fuentes walking in the street. Banks was talking to a man

she knew as “Tiger,” and she told Fuentes “to go on about his business” or “[g]o

away.” Suddenly, without Banks’s prompting, Tiger crossed the street and started

beating Fuentes with his fists. Fuentes fought back. Sometime later, Banks saw

the appellant, O’Neal, replace Tiger in the fight. The fight took place in the street

in front of Banks’s home and lasted about three minutes. When the fight ended,

Fuentes walked a short distance before collapsing. Fuentes died at the scene from

what the medical examiner later determined were sharp force injuries with

penetration of the heart.    The medical examiner testified that the source of

Fuentes’s injuries was a knife or other sharp object. Anthony Daniel, a witness,

testified that he saw O’Neal stab Fuentes with a knife. Banks testified that O’Neal

showed her a bloody knife immediately following the fight. Daniel and Banks

both testified that Fuentes was unarmed.




                                           2
      At trial, O’Neal asked Banks whether she had feared a threat to her life or

serious bodily injury during the fight. Banks responded that she had. On redirect,

the State attempted to clarify Banks’s response to O’Neal’s question.        Banks

explained that she had misunderstood O’Neal’s question and that she had not been

afraid of Fuentes.

      O’Neal asked the trial court to instruct the jury on defense of a third

person—Banks. The trial court refused. O’Neal objected, and the trial court

overruled his objection. This appeal followed.

                                    Applicable Law

      We apply a two-step analysis to jury-charge issues. See Love v. State, 199

S.W.3d 447, 455 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (citing Ngo v.

State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005)). “[W]e first determine if

error actually exists in the jury charge and, if we find error, we determine whether

it harmed the appellant.” Id. “We review a trial court’s decision not to include an

instruction on a defensive issue in the charge for an abuse of discretion, and we

view the evidence in the light most favorable to the defendant’s requested

submission.” Reynolds v. State, 371 S.W.3d 511, 522 (Tex. App.—Houston [1st

Dist.] 2012, pet. ref’d) (citing Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim.

App. 2006)); Love, 199 S.W.3d at 455.




                                         3
      The Texas Code of Criminal Procedure requires the trial court to “deliver to

the jury . . . a written charge distinctly setting forth the law applicable to the case.”

TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007); see also McGregor v. State,

394 S.W.3d 90, 123 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). “The issue

of the existence of a defense is not submitted to the jury unless evidence is

admitted supporting the defense.” TEX. PENAL CODE ANN. art. 2.03(c) (West

2011). “[A] judge must give a requested instruction on every defensive issue

raised by the evidence without regard to its source or strength, even if the evidence

is contradicted or is not credible.” Krajcovic v. State, 393 S.W.3d 282, 286 (Tex.

Crim. App. 2013) (citing Juarez v. State, 308 S.W.3d 398, 404-05 (Tex. Crim.

App. 2010)). A defense is raised by the evidence “if there is some evidence, from

any source, on each element of the defense that, if believed by the jury, would

support a rational inference that that element is true.” Shaw v. State, 243 S.W.3d

647, 657–58 (Tex. Crim. App. 2007).

      Section 9.33 of the Texas Penal Code provides that a person is justified in

using deadly force to protect a third person if he reasonably believes the third

person would be justified in using deadly force to protect himself and if he

reasonably believes deadly force is immediately necessary to protect the third

person. TEX. PENAL CODE ANN § 9.33; see also Smith v. State, 355 S.W.3d 138,

145 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). A reasonable belief is “a

                                           4
belief that would be held by an ordinary and prudent man in the same

circumstances as the actor.” TEX. PENAL CODE ANN. § 1.07(42) (West Supp.

2012); see also Walters v. State, 247 S.W.3d 204, 213 (Tex. Crim. App. 2007).

Deadly force is “force that is intended or known by the actor to cause, or in the

manner of its use or intended use is capable of causing, death or serious bodily

injury.” TEX. PENAL CODE ANN. § 9.01(3) (West 2011); see also Ferrel v. State,

55 S.W.3d 586, 591–92 (Tex. Crim. App. 2001).

                                      Analysis

      O’Neal contends that the jury could have believed Banks’s original

statement, that she feared a threat to her life or serious bodily injury during the

fight, and, therefore, he was entitled to an instruction on defense of a third person.

“[W]hen a witness recants prior testimony, it is up to the fact finder to determine

whether to believe the original statement or the recantation.” Eubanks v. State, 326

S.W.3d 231, 241 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (quoting

Saldana v. State, 287 S.W.3d 43, 60 (Tex. App.—Corpus Christi 2008, pet. ref’d)).

Here, however, whether the jury could have believed Banks’s original testimony is

inapposite.

      The Texas Penal Code requires the trial court to instruct the jury on a

defense only if there is some evidence on each element of the defense to support a

rational inference that the element is true. See TEX. PENAL CODE ANN. § 2.03(c);

                                          5
Shaw, 243 S.W.3d at 657–58. Thus, the issue for the trial court was whether there

was some evidence to support a rational inference that O’Neal reasonably believed

Banks would have been justified in using deadly force to protect herself and that

O’Neal reasonably believed using deadly force was immediately necessary to

protect Banks. See TEX. PENAL CODE § 9.33; see also Smith, 355 S.W.3d at 145.

Banks’s original testimony might support a rational inference that Banks feared a

threat to her life or serious bodily injury, but it does not establish that O’Neal

reasonably believed Banks would have been justified in using deadly force to

protect herself. Nor does it establish that O’Neal reasonably believed using deadly

force was immediately necessary to protect Banks. See Morales v. State, 357

S.W.3d 1, 8 (Tex. Crim. App. 2011) (“We also point out that the focus of the

defense-of-third-persons defense is upon what the actor reasonably believes

concerning the situation of the third person.”) (emphasis added).

      Indeed, nothing in the record supports a rational inference that an ordinary

and prudent person in O’Neal’s situation would have believed that Banks was

threatened by Fuentes such that deadly force was justifiable and immediately

necessary to protect Banks. The record does not make clear whether O’Neal

observed Banks tell Fuentes to go away. Even if O’Neal had, nothing about that

interaction supports a reasonable belief on the part of O’Neal that Fuentes was

threatening Banks so as to justify the use of deadly force. Cf. Hamel v. State, 916

                                         6
S.W.2d 491, 492, 494 (Tex. Crim. App. 1996) (holding defendant was entitled to

instruction on defense of third person in part because victim threatened to shoot

third person and victim gave impression he was retrieving his gun). The same

holds true if O’Neal did not know that Banks had told Fuentes to go away, and

O’Neal believed Banks to be a mere bystander. See, e.g., Madrigal v. State, 347

S.W.3d 809, 817–18 (Tex. App.—Corpus Christi 2011, pet. ref’d) (concluding

evidence was insufficient to raise defense of third person where defendant testified

he had feared for third party’s safety and had pushed third party aside, but where

victim was unarmed and there was no evidence that victim had threatened third

party); Pena v. State, 635 S.W.2d 912, 914 (Tex. App.—Eastland 1982, writ ref’d)

(holding evidence did not entitle appellant to defense of third person instruction

where victim was armed, victim threatened to shoot appellant, and appellant

testified he had feared for third party’s safety and had moved third party aside, but

where there was no evidence that victim had threatened third party). In sum,

because no evidence supports a rational inference that Fuentes threatened Banks so

as to justify a belief on the part of O’Neal that deadly force was justified, we hold

that the trial court did not abuse its discretion in refusing to instruct the jury on

defense of a third person.

      We overrule O’Neal’s sole point of error.




                                         7
                                      Conclusion

      We affirm the trial court’s judgment.




                                                        Rebeca Huddle
                                                        Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           8
