Opinion filed October 23, 2014




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-12-00356-CR
                                     __________

               DREW ANTHONY NICKASON, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 441st District Court
                            Midland County, Texas
                        Trial Court Cause No. CR39587


                      MEMORANDUM OPINION
      The jury convicted Appellant, Drew Anthony Nickason, of the offense of
aggravated assault with a deadly weapon and found, in a special verdict, that
Appellant had attacked the victim because of Appellant’s bias or prejudice against
the victim’s race. Appellant elected to have the trial court assess punishment, and
he entered a plea of “true” to an enhancement allegation. After the trial court heard
evidence on punishment, it assessed punishment at confinement for twenty-five
years and then sentenced Appellant accordingly. Appellant asserts in a single issue
that the trial court erred when it denied his request for a self-defense instruction to
the jury. We affirm.
                                      I. Evidence at Trial
         Appellant has not challenged the sufficiency of the evidence, so we outline
only those facts pertinent to his single issue on appeal. The grand jury indicted
Appellant for aggravated assault with a deadly weapon. 1 The indictment included
an enhancement allegation that Appellant targeted the victim, Levi Drone, because
of Appellant’s bias or prejudice against the victim’s race. 2 The State provided
notice of an additional enhancement: a prior felony conviction of aggravated
robbery. 3 Appellant pleaded “not guilty,” and the case proceeded to trial.
         Two groups of men—one group of approximately six to eight white males
and one group of four African-American males: namely, Drone; Johnny Taylor,
Jr.; Marcus Lairis Davis; and Christopher Jerel Moore—were in the parking lot at
the Buffalo Wild Wings restaurant in Midland. The white males used profanity,
“‘F’-bombs,” to address Drone, Taylor, Davis, and Moore and shouted racial slurs,
like “freaking n----rs” at the four men. The four men had just exited the restaurant
after finishing their meals.
         Drone responded to the white males by asking if the white males were
talking to them. A short white male took his shirt off to show a Confederate flag
tattoo, while another white male pulled out a semiautomatic handgun and said,
“Y’all don’t want these problems today.” After seeing the gun, Drone and his
friends tried to leave, but a white male rushed Davis and hit him on the head.

         1
          TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011).
         2
          TEX. PENAL CODE ANN. § 12.47 (West 2011); TEX. CODE CRIM. PROC. ANN. art. 42.014 (West
2006).
         3
          TEX. PENAL CODE ANN. § 12.42(b) (West Supp. 2014).

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Several white males then rushed Drone, Taylor, and Moore, and a fight ensued.
Appellant and Drone fought, as did Appellant and Moore. The white male with the
gun hit Davis in the mouth and the back of the head, and Davis went to the ground
bleeding and later vomited blood. All but two of the white males then left the
scene in pickups.
        As Drone turned his attention to Davis, who was on the ground shaking and
vomiting, the two white males, Dallas Decker and Appellant, ran behind a
building,4 but they soon came back with knives and were ready to fight. They
shouted, “We’ll beat you n----rs up.” The short white male yelled, “Heil Hitler,”
while the other white male shouted, “Ha, ha, yeah n----rs. Ha, ha, we got y’all.”
Drone told Appellant that Davis was hurt, and Appellant responded that he did not
care.
        Drone warned Appellant not to approach him. Appellant backed off, then
drew a knife, and moved again toward Drone. Drone then removed his belt and
swung it to defend himself. Taylor stood up from assisting Davis to prevent the
short white male from attacking Drone. As Appellant moved toward Drone and
brandished a knife, Appellant yelled, “N----r, f--k you, motherf----r, you n----r,”
and similar racial epithets. While defending himself from Appellant, Drone fell
down; Appellant then stabbed Drone on the underside of his arm near the triceps.
Decker and Appellant then ran away a second time but were later apprehended by
police.
        After Appellant was arrested and taken to the police station, he waived his
Miranda 5 rights and spoke to Kay Therwhanger, a detective with the Midland
Police Department who had begun the investigation into the parking lot
        4
         Jeremy Shaw, an employee at Buffalo Wild Wings who was taking out the trash, saw two white
males running and heard them say, “We got them,” as the two males ran behind the building. Shaw then
went to the parking lot where he saw a man on the ground bleeding.
        5
          Miranda v. Arizona, 384 U.S. 436 (1966),

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altercations and the stabbing of Drone. When asked by Detective Therwhanger if
he had brandished a knife and stabbed Drone, Appellant denied that he had a knife
or that he had stabbed anyone.
      Later in the interview, Appellant admitted that he had a knife but maintained
that he had not stabbed anyone. Later still, Appellant said he acted in self-defense,
but he did not remember stabbing Drone.            Still later in the interview, after
Detective Therwhanger confronted Appellant with other witnesses’ statements,
Appellant continued to maintain that he had acted in self-defense but that he did
not remember that he stabbed anyone. Appellant also said that he did not dispute
what others had said but that he had no memory that he stabbed anyone.
      Dallas Decker, Brandon Orr, and Matthew Blain invoked their Fifth
Amendment rights and refused to testify. Appellant also did not testify at trial.
Appellant asserted that the trial court must include a self-defense instruction when
evidence adduced at trial demonstrated that Drone pulled out and swung his belt
around before Appellant drew his knife to defend himself and that Appellant acted
in self-defense because he was in fear of his life during the altercations. The State
argued that, because there was no testimony from anyone that Appellant had
admitted that he stabbed Drone, but did so in self-defense, Appellant was not
entitled to a self-defense instruction. The trial court agreed and denied Appellant’s
request.
                                    II. Analysis
      Texas law provides that a trial court shall “deliver to the jury . . . a written
charge distinctly setting forth the law applicable to the case [and] not expressing
any opinion as to the weight of the evidence.” TEX. CODE CRIM. PROC. ANN.
art. 36.14 (West 2007). A trial court is required to instruct the jury on statutory
defenses, affirmative defenses, and justifications when they are raised by the
evidence. Walters v. State, 247 S.W.3d 204, 208–09 (Tex. Crim. App. 2007).
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When we review a claim of jury charge error, we engage in a two-step process.
First, we determine whether error exists, and then we “determine whether
sufficient harm resulted from the error to require reversal.” Abdnor v. State, 871
S.W.2d 726, 731–32 (Tex. Crim. App. 1994); Almanza v. State, 686 S.W.2d 157,
171 (Tex. Crim. App. 1985).
      Self-defense is a justification for conduct that would otherwise be criminal.
See PENAL §§ 9.02, 9.31, 9.32. “A defendant is entitled to an instruction on self-
defense if the issue is raised by the evidence, whether that evidence is strong or
weak, unimpeached or contradicted, and regardless of what the trial court may
think about the credibility of the defense.” Ferrel v. State, 55 S.W.3d 586, 591
(Tex. Crim. App. 2001). A defensive issue is “raised by the evidence” if there is
sufficient evidence to permit a reasonable jury to find in the defendant’s favor on
the issue. Ferrel, 55 S.W.3d at 592 (citing Mathews v. United States, 485 U.S. 58,
63 (1988)). A defendant need not testify for a defensive issue to be sufficiently
raised.   Smith v. State, 676 S.W.2d 584, 585–87 (Tex. Crim. App. 1984);
Johnson v. State, 271 S.W.3d 359, 362 (Tex. App.—Beaumont 2008, pet. ref ’d).
      Appellant complains of the trial court’s failure to charge the jury on the law
of self-defense. The defendant has the burden to produce sufficient evidence at
trial to raise the issue of self-defense. Harris v. State, No. 11-11-00045-CR, 2013
WL 655223, at *6 (Tex. App.—Eastland Feb. 21, 2013, no pet.) (mem. op., not
designated for publication) (citing Hill v. State, 99 S.W.3d 248, 250 (Tex. App.—
Fort Worth 2003, pet. ref’d)). Because self-defense is a justification defense, the
defendant essentially is required to admit that he committed the conduct that
resulted in the indictment in order to be entitled to a charge on self-defense. Hill,
99 S.W.3d at 250; see Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007)
(stating that, as to necessity and self-defense, “a defensive instruction is only
appropriate when the defendant’s defensive evidence essentially admits to every
                                         5
element of the offense”); see also Anderson v. State, 11 S.W.3d 369, 372 (Tex.
App.—Houston [1st Dist.] 2000, pet. ref’d) (a defendant must admit the offense to
be entitled to an instruction on self-defense).
      During her interview of Appellant, Detective Therwhanger asked Appellant
questions about his altercation with Drone. The following exchange then occurred:
             Detective Therwhanger: “Did you stab the chunky black male?”

             Appellant: “Stab him? No.”

            Detective Therwhanger: “I have got three probably six
      witnesses who say you had a knife in your hand and you stabbed him
      under his arm.”

             Appellant: “I didn’t stab anybody.”

Detective Therwhanger asked Appellant additional questions about the evidence
against him, and the following exchange occurred:
             Detective Therwhanger: “Why would they make this up?”

             Appellant: “I didn’t have any knife.”

             Detective Therwhanger: “They said you had one.”

             Appellant: “If I had a knife, I’d tell you I had a knife. But I
      didn’t have a knife.”

Throughout the remainder of her interview, Detective Therwhanger continued to
ask Appellant if he had a knife and whether he used it to defend himself.
Appellant repeatedly either denied that he had pulled a knife on the victim or
claimed to have no memory of such action.            Appellant also claimed, in his
interview, that he acted in self-defense and admitted that he had a knife with him,
and he also said that he did not dispute what others had said but that he had no
memory that he pulled a knife on the victim or stabbed him. Appellant did not


                                           6
testify at trial. Because Appellant denied that he committed the conduct charged in
the indictment and because there was no evidence from any other source to show
that he was entitled to a charge on self-defense, he was not entitled to a charge on
self-defense. We overrule Appellant’s sole issue.
                              III. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                    MIKE WILLSON
                                                    JUSTICE

October 23, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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