                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                §
 MANUEL TORRES,                                                No. 08-12-00096-CR
                                                §
                       Appellant,                                   Appeal from
                                                §
 v.                                                        County Criminal Court No. 4
                                                §
 THE STATE OF TEXAS,                                         of El Paso County, Texas
                                                §
                       Appellee.                               (TC # 20090C07495)
                                                §

                                         OPINION

       Manuel Torres appeals his conviction of assault family violence. A jury found Appellant

guilty and the jury/court assessed Appellant’s punishment at confinement in the county jail for

360 days, probated for twenty months, and a fine of $250, a portion of which was probated. We

reverse and remand for a new trial.

                                      FACTUAL SUMMARY

       In 2009, Azucena Batres, the complainant, lived with Appellant, her son, and his

daughter Juliana Torres. On March 4, 2009 at approximately 9:30 p.m., Batres was upstairs with

her six-year-old son and Appellant was downstairs. Appellant became angry because Batres had

not answered his calls to her cell phone and he asked to see her phone. Batres gave her flip-style

phone to Appellant and he broke it in half. Batres went downstairs and asked Appellant why he

had broken her phone. Appellant became angrier and pushed Batres, who was pregnant, onto a
bed and grabbed her by the neck and hair. Batres’ son came downstairs and told Appellant to

stop, but Appellant told him not to interfere. Appellant continued to hold Batres’ down by

placing his hand on her neck which caused her pain. Appellant eventually stopped assaulting

Batres and left the house. After waiting a few minutes to make sure Appellant was not going to

return, Batres called the police. On cross-examination, Batres denied that she had slapped

Appellant because he would not eat what she had prepared for dinner or that she had fabricated

the assault allegation in order to get residency status in the United States.

       Liliana Medina, a Horizon police officer, was dispatched to the residence and met with

Batres who was crying, and appeared to be afraid and distraught. Batres told Medina that

Appellant had become upset and they argued because she did not answer his phone call. Batres

explained to Appellant she had not received a call from him, but Appellant did not believe her,

and he grabbed her, threw her on the bed, and choked her. Medina observed that Batres had

redness and bruising on her neck and scratches on her forearm. The police took Batres to a

women’s shelter where she lived for over a year. The State introduced into evidence a recording

of the 911 call and photographs taken by Officer Medina depicting Batres’s injuries.

       Appellant’s daughter, Juliana Torres, testified about the argument between Appellant and

Batres on March 4, 2009. Batres became upset that evening because Appellant came home a

little later than usual and he would not eat what she fixed for dinner. After cooking his own

dinner, Appellant later went into the bedroom and Batres followed him. During the ensuing

argument, Juliana heard Batres tell Appellant, “Hit me” in Spanish as though she wanted to

provoke Appellant. Appellant came out of the bedroom and he left the house with Juliana.


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Batres did not have any injuries when Juliana left the house with Appellant that evening. Juliana

returned to the house about an hour and a half later and the police were there. Juliana did not

recall whether she told the police that Appellant had not hit Batres or that Batres had asked him

to hit her.

        Appellant testified that he and Batres had previously argued about whether he would help

her get citizenship papers. On the evening in question, she became upset when he would not eat

what she had fixed for dinner. Appellant walked away but Batres followed him to the bedroom

and slapped him. He extended his arms and pushed her away in an effort to keep her away from

him, but he denied grabbing her by the hair, neck, or arm. Batres tried to provoke Appellant by

telling him “Hit me” in Spanish. Appellant walked out of the bedroom and Juliana said, “Let’s

get out of here.” Batres did not have any injuries when he left the house.

                                        CHARGE ERROR

        In his sole issue, Appellant argues that the trial court failed to properly charge the jury on

self-defense because the application paragraph placed the burden on him to prove the defense by

a preponderance of the evidence even though self-defense is not an affirmative defense.

                                        Standard of Review

        Appellate review of alleged jury charge error generally involves a two-step process.

Kirsch v. State, 357 S.W.3d 645, 649 (Tex.Crim.App. 2012); Abdnor v. State, 871 S.W.2d 726,

731 (Tex.Crim.App. 1994); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984)(op.

on reh’g). First, we must determine whether error occurred. Wooten v. State, 400 S.W.3d 601,

606 (Tex.Crim.App. 2013); Abdnor, 871 S.W.2d at 732. When determining whether the charge


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is erroneous, we consider it “as a whole instead of a series of isolated and unrelated statements.”

Dinkins v. State, 894 S.W.2d 330, 339 (Tex.Crim.App. 1995); Miramontes v. State, 225 S.W.3d

132, 145 (Tex.App.--El Paso 2005, no pet.).

       If there is error in the charge, we must then analyze whether sufficient harm resulted from

the error to require reversal. Wooten, 400 S.W.3d at 606. Under this second step, the degree of

harm necessary for reversal usually depends on whether the appellant properly preserved the

error by objection. Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App. 2003). If the

appellant objected to the charge, we determine whether there is “some harm.” Sakil v. State, 287

S.W.3d 23, 25-26 (Tex.Crim.App. 2009). If the appellant did not object, as in this case, we will

not reverse unless the record demonstrates “egregious harm.” Id. at 26.

                                  Law Applicable to Self-Defense

       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

person’s use or attempted use of unlawful force. TEX.PENAL CODE ANN. § 9.31(a)(West 2011).

When The initial burden to produce evidence supporting a claim of self-defense is on the

defendant. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003). Once the defendant

produces some evidence, the State bears the ultimate burden of persuasion to disprove the raised

defense.   Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App. 1991).               This burden of

persuasion does not require that the State produce evidence directly refuting the claim of self-

defense, but it does require that the State prove its case beyond a reasonable doubt.       Id. The

issue of self-defense is a fact issue to be determined by the jury, which is free to accept or reject


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any defensive evidence on the issue. Id. at 913-14. A jury’s verdict of guilt is an implicit

rejection of the defendant’s self-defense theory. Id. at 914.

                                            The Charge

       The trial court’s charge included the standard instructions on the presumption of

innocence and the burden of proof beyond a reasonable doubt. More specifically, the charge

instructed the jury that:   “The burden of proof in all criminal cases rests upon the State

throughout the trial.” Additionally, the jury was instructed that:

              All persons are presumed to be innocent and no person may be convicted
       of an offense unless each element of the offense is proved beyond a reasonable
       doubt. The fact that a person has been arrested, confined, or indicted for, or
       otherwise charged with the offense gives rise to no inference of guilt at his trial.
       The law does not require a Defendant to prove his innocence or produce any
       evidence at all. The presumption of innocence alone is sufficient to acquit the
       Defendant.

              The prosecution has the burden of proving the Defendant guilty and it
       must do so by proving each and every element of the offense charged beyond a
       reasonable doubt and if it fails to do so, you must acquit the Defendant.

              It is not required that the prosecution prove guilt beyond all possible
       doubt; it is required that the prosecution’s proof excludes all ‘reasonable doubt’
       concerning the defendant’s guilt.

              In the event you have reasonable doubt as to the Defendant’s guilt after
       considering all the evidence before you, and these instructions, you will acquit
       him and say by your verdict ‘not guilty.’

       Appellant’s argument is based on the highlighted portion of the application paragraph

related to self-defense:

       Now, bearing in mind the foregoing definitions and instructions, if you believe
       from the evidence beyond a reasonable doubt that the Defendant MANUEL
       TORRES, in the County of El Paso, State of Texas, on or about the 4th day of
       March, 2009, did then and there use force on Azucena Batres, if he did commit

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        the offense of assault as alleged in the information, but you further find by a
        preponderance of the evidence that the Defendant reasonably believed, from his
        standpoint, that such force when and to the degree was (sic) used, was
        immediately necessary to protect himself against the use or attempted use of
        unlawful force by the complainant, and that the use of force, if any, by the
        Defendant was not in response to verbal provocation alone, then you will acquit
        the Defendant and say by your verdict ‘not guilty.’1 [Emphasis added].

Under Section 2.03(d) of the Penal Code, when a defense, such as self-defense, is submitted to

the jury, the trial court is required to instruct the jury that a reasonable doubt on the issue

requires that the defendant be acquitted. TEX.PENAL CODE ANN. § 2.03(d)(West 2011); Luck v.

State, 588 S.W.2d 371, 375 (Tex.Crim.App. 1979)(op. on reh’g). Section 2.04(d), addresses the

burden of proof for affirmative defenses and provides: “If the issue of the existence of an

affirmative defense is submitted to the jury, the court shall charge that the defendant must prove

the affirmative defense by a preponderance of the evidence.” TEX.PENAL CODE ANN. § 2.04(d)

(West 2011).

        The application paragraph is erroneous because it incorporates Section 2.04’s

“preponderance of the evidence” burden of proof even though self-defense is not an affirmative

defense. Self-defense is a defense under Section 2.03. Saxton v. State, 804 S.W.2d 910, 912 n.5

(Tex.Crim.App. 1991). The application paragraph instructed the jury to acquit if they found self-

defense had been proven by a preponderance of the evidence. While the charge does not

explicitly place this burden of proof on Appellant, the only logical interpretation is that it was

Appellant’s burden.

        As noted by the State, the application paragraph must be considered together with other


1
   The charge also defined “preponderance of the evidence” as “the greater weight and degree of the credible
testimony and evidence admitted before you in this case.”
                                                   -6-
instructions contained in the charge before it can be determined that there is error in the charge.

Before reviewing the specific instructions discussed in the State’s brief, we observe that the

application paragraph fails to instruct the jury as required by Section 2.03(d) to acquit Appellant

if they have a reasonable doubt whether he acted in self-defense. See Barrera v. State, 982

S.W.2d 415, 416 (Tex.Crim.App. 1998)(observing that the court of appeals “properly concluded

that the failure to apply the law of self-defense to the facts of the case and to instruct the jury to

acquit if they held a reasonable doubt on self-defense was error”); Russell v. State, 834 S.W.2d

79, 82 (Tex.App.--Dallas 1992, pet. ref’d)(finding charge error where application paragraph

failed to instruct the jury to acquit the defendant if they had a reasonable doubt on self-defense).

Appellant has not raised this particular error in an issue on appeal, but we cannot ignore the

impact of this error in the application paragraph on the claimed error since it directly relates to

self-defense.

       The charge instructed the jury that Appellant was presumed innocent and he was not

required to produce any evidence at all. Appellant testified and presented other evidence that he

acted in self-defense and the jury would necessarily look to the charge for instructions on how to

evaluate the defensive evidence. The application paragraph erroneously instructed the jury to

acquit Appellant if self-defense had been proven by a preponderance of the evidence and it failed

to instruct the jury to acquit if they had a reasonable doubt whether Appellant acted in self-

defense. The charge also made clear that the State had the burden to prove each element of the

offense beyond a reasonable doubt, the burden remained on the State throughout the trial, and the

jury was required to acquit Appellant if the State failed to prove his guilt beyond a reasonable


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doubt. These general instructions regarding the State’s burden of proof with respect to the

elements of the offense do not offset the erroneous instruction related to self-defense in the

application paragraph.

       The State also directs our review to an instruction in the charge which required the jury to

acquit Appellant if they had a reasonable doubt as to Appellant’s guilt after considering all of the

evidence and the instructions contained in the charge. This instruction directly conflicts with the

application paragraph which informs the jury that they should acquit if self-defense had been

proven by a preponderance of the evidence. We conclude that the jury charge, when read as a

whole, impermissibly shifted the burden of proof to Appellant to prove he acted in self-defense.

                                         Egregious Harm

       The remaining question is whether the record demonstrates harm sufficient to require

reversal. 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

to be established, the error must affect the very basis of the case, deprive the defendant of a

valuable right, or vitally affect a defensive theory. Cosio, 353 S.W.3d at 777; Ngo v. State, 175

S.W.3d 738, 743-44 (Tex.Crim.App. 2005). The degree of harm is determined in light of the

entire jury charge, the state of the evidence, including the contested issues and weight of

probative evidence, the argument of counsel and any other relevant information revealed by the

record of the trial as a whole. See Almanza, 686 S.W.2d at 171.

       As discussed above, the charge, when read as a whole, shifted the burden to Appellant to

prove he acted in self-defense. The State argues that the charge error is harmless because the


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jury could have reasonably determined that Appellant’s self-defense claim was not credible since

he denied causing her injuries. The information alleged that Appellant assaulted Batres by

squeezing her neck with his hands, grabbing her by the arm, and pulling her hair. Batres testified

Appellant grabbed her by the neck and the jury had before it photographs depicting scratches on

Batres’s arms and redness on her neck. Appellant presented two defensive theories at trial: self-

defense and fabrication. With regard to self-defense, Appellant denied grabbing Batres by the

hair, throat, or arm, but he testified that she slapped him and he extended his arms and pushed

her away in an effort to defend himself. Appellant expressly denied causing any of Batres’

injuries and both Appellant and his daughter insisted Batres did not have any of these injuries

when they left the house. Appellant also presented a defensive theory that Batres fabricated the

story about Appellant grabbing her by the neck and she self-inflicted her injuries so she could get

residency status. Ordinarily, a defendant’s denial that he caused the complainant’s injuries

would be fatal to a claim of self-defense but Appellant admitted to conduct which could have

caused some of her injuries. The jury was required to determine the credibility of the witnesses

and resolve these conflicts in the evidence in light of the erroneous instruction which required

the jury to reject Appellant’s claim of self-defense if he failed to prove it by a preponderance of

the evidence. Further, the charge did not permit the jury to acquit Appellant if they had a

reasonable doubt as to whether he acted in self-defense. Based on the record before us, we

conclude that the erroneous application paragraph resulted in egregious harm because it vitally

affected a defensive theory. Accordingly, we sustain Issue One, reverse the judgment of the trial

court, and remand the cause for a new trial.


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September 18, 2014
                                    ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.
(Rivera, J., not participating)

(Do Not Publish)




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