      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-17-00669-CR



                              John Christopher Foster, Appellant

                                                 v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
      NO. D-1-DC-17-201020, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING



                            MEMORANDUM OPINION


               John Christopher Foster was charged with aggravated assault family violence for

allegedly assaulting Sarah Morris, who Foster had a dating relationship with at the time, and for

using a deadly weapon during the offense. See Tex. Penal Code §§ 22.01(a) (listing elements of

offense of assault), .02(a)-(b)(1) (providing that defendant commits aggravated assault if he “causes

serious bodily injury to another” and that offense is first-degree felony if defendant uses deadly

weapon “and causes serious bodily injury to a person whose relationship to or association with the

defendant is described by” provisions of Family Code). During the trial, Foster requested a jury

instruction on self-defense, but the district court denied that request. At the end of the guilt-or-

innocence phase, the jury found Foster guilty of the charged offense and also found that Foster used

a deadly weapon during the offense. At the end of the punishment phase, the jury assessed Foster’s

punishment at seventeen years and six months’ imprisonment. See id. § 12.32 (listing punishment
range for first-degree felony). The district court rendered its judgment of conviction in accordance

with the jury’s verdicts. In two issues on appeal, Foster argues that the district court erred by

denying his request for an instruction on self-defense and by failing to convene a hearing on his

motion for new trial. We will reverse the district court’s judgment of conviction and remand for

further proceedings.


                                              BACKGROUND

                 As set out above, Foster was charged with aggravated assault family violence.

Originally, the indictment alleged that Foster assaulted Morris by “intentionally, knowingly, and

recklessly caus[ing] serious bodily injury to . . . Morris” in the following different ways: (1) “by

grabbing . . . Morris with his hand,” (2) “by squeezing . . . Morris with his hand,” (3) “by striking

. . . Morris with his hand,” (4) “by pulling . . . Morris’[s] hair,” and (5) “by cutting . . . Morris with

a knife.” The indictment also alleged that Foster committed the assault while using and exhibiting

a deadly weapon (a knife). After the various witnesses testified at trial, the State abandoned the first

three alternative assault allegations. Consistent with the remaining allegations, the jury charge

instructed the jury to find Foster guilty if they determined that Foster “cause[d] serious bodily injury

to . . . Morris . . . by . . . pulling . . . Morris’[s] hair[] or . . . cutting . . . Morris with a knife.”

                 During the trial, Foster, Morris, Morris’s neighbor, several medical personnel, and

numerous law-enforcement officials testified. In addition, photographs of Morris’s home and of

injuries that Morris and Foster allegedly sustained were admitted into evidence. The photographs of

Morris’s home show blood, clumps of hair, and feces in several rooms. The photographs of Morris

showed significant injuries to her face and head, including an injury to her scalp. Two photographs

                                                        2
taken of Foster on the day of the offense showed lacerations on his neck, and a photograph taken

well after the offense purportedly showed a scar from an injury to Foster’s armpit.

                 Furthermore, recordings of phone conversations between Foster and two individuals

occurring while he was in jail and of a 911 call made by Morris’s neighbor were admitted into

evidence. On the recording of the 911 call, Morris’s neighbor stated that Foster was beating Morris,

that Morris knocked on the neighbor’s door for help, and that the neighbor could hear Morris

screaming and pleading with Foster to stop. On the recordings of the phone conversations from jail,

Foster stated that he took a knife away from Morris after she held the knife to his throat, that his

throat was cut when he pushed against the knife, that he cut his hand in the process, and that he cut

Morris’s hair.

                 During her testimony, Morris explained that Foster had assaulted her throughout

their relationship by punching her in the face and that this occurred as recently as one week before

the incident in question. Regarding the day of the alleged offense, Morris explained that Foster

brought two knives to her before she was going to take a bath and told her how to kill herself, that

he started yelling at her about the fact that he could not find his cell phone, that he left her home, and

that she locked the door when he left. In addition, Morris related that Foster returned a few minutes

later, “busted [the front door] open” while she was still in the living room, “start[ed] punching” her

in the face, and strangled her neck with two hands. Further, Morris recalled that she felt her life

“slipping away” while she was being strangled, that she thought she “was going to die,” that she

could not breathe, and that she “defecated [her]self” at some point.




                                                    3
                Next, Morris explained that Foster stopped choking her to continue looking for his

phone and that, at that point, she ran to her neighbor’s house. Moreover, Morris stated that Foster

grabbed her “by [her] hair and drag[ged her] back into the house,” that he used a knife “to cut off

[her] hair,” that she fought for the knife and cut her hands during the struggle, that she held the knife

to his neck and told him to stop, that Foster started laughing and regained possession of the knife,

and that Foster said he was going to kill her. Additionally, Morris testified that she asked Foster to

let her take a bath to clean herself, that Foster agreed but stated that he would stay in the bathroom

with her and hold onto the knife, that Foster passed out because he was intoxicated, that she grabbed

the knives and placed them in the bathtub, that the police showed up shortly thereafter, and that she

left the home when the police arrived. Further, Morris specifically denied attacking Foster first.

                In addition to Morris testifying, the State called Officer Matthew Murphy to the stand

to discuss his observations on the night in question when he responded to a 911 call concerning

Morris. Officer Murphy related that he first noticed blood on the front porch and doorframe, that

he went inside the residence and saw more blood and also clumps of hair in the living room, that he

observed Foster unconscious in the hallway with blood on his hand, that Foster “had long hairs

stuck underneath” his fingernails, and that Foster “had some lacerations to his neck.” Next, Officer

Murphy recalled that he heard Morris call for help; that “she had swelling, discoloration, and blood

covering the majority of her face”; that some of her hair was missing; that she had a laceration on

her head; and that she had “red marks on her neck.” When describing the extent of Morris’s injuries,

Officer Murphy stated that Morris had “significant swelling to the majority of her face” causing

one of her eyes to be nearly swollen shut and that a large “area of skin . . . was completely missing



                                                   4
from her scalp.” In addition, Officer Murphy testified that he found “two, possibly more, knives”

in the bathtub.1

                Following Officer Murphy’s testimony, a paramedic, David Curvin, was called to

the stand to discuss his treatment of Morris. Regarding Morris’s injuries, Curvin explained that she

had swelling to both eyes, had bruising on her face, had lacerations to her throat and left hand, had

bruises on her knees, and “had an area on the back of her head where somebody had sliced a large

portion of her scalp off.” Regarding the last injury, Curvin explained that if the wound was not

treated, it “could [have] become infected” and “could eventually [have] kill[ed] the patient.” In

addition, Curvin related that Morris told him that she had been “repeatedly struck with fists and the

butt or handle of a knife” and that Foster tried to cut her hair off. When discussing the injuries to

Morris’s left hand, Curvin discussed how Morris told him that she injured her hand when “trying to

get the knife away from” Foster and when “fighting off [Foster] . . . with his knife.” Moreover,

Curvin testified that Morris stated that Foster choked her to the point where she “almost passed

out,” that she was so scared during the incident that she defecated on herself, and that she thought

that Foster “was going to kill” her.2

                Next, the State called Detective Alfonso Anderson to the stand, and he testified

that he went to the scene of the offense and spoke with Foster and Morris. When discussing his

conversation with Foster, Detective Anderson related that Foster had long but “very superficial”



       1
        Testimony similar to that of Officer Murphy’s was given by Officer Matthew Hootman,
who also responded to the scene on the night in question.
       2
           One of the nurses who treated Morris on the night in question, Kimberly Conklin, was
called to the stand and provided similar testimony regarding the extent and nature of Morris’s injuries.

                                                   5
“scratch marks along his throat,” that Foster’s hands looked swollen, and that Foster had cuts on

his fingers. Regarding the injuries to Foster’s hands, Detective Anderson stated that swollen hands

can be a sign that the person has hit something with his hands, but Detective Anderson also testified

that some of the injuries might have been defensive in nature. Additionally, Detective Anderson

discussed how when he talked with Morris, she stated that she gathered the knives and placed them

in the tub to hide them because she was afraid Foster was going to kill her. Further, Detective

Anderson testified that Morris stated that Foster tripped her, got on top of her, punched her, and

strangled her for two minutes, and Detective Anderson recalled that Morris also recounted that she

defecated when she was being strangled, that Foster let her go for a moment, that she ran to her

neighbor’s home seeking help, that Foster brought her back to the house, that Foster picked up a

knife, that Foster started “cutting her hair off,” that he held the knife to her throat, and that he

threatened to kill her. In addition, Detective Anderson recalled that Morris initially expressed concern

that she might be charged for cutting Foster’s neck.3

                During his case in chief, Foster elected to testify and was called to the stand two

times. In his first appearance on the stand, Foster admitted that he was seeing another woman

and testified that on the night before the alleged offense, Morris wanted him to watch her have

sex with another man to punish him for the affair. Further, Foster stated that he decided to leave

Morris’s home but that before he left, Morris grabbed his stuff and tackled him in the front yard in

order to keep him from leaving. Regarding the day of the offense, Foster related that they had sexual




       3
        In his testimony, Detective Anderson provided testimony similar to that given by other
witnesses describing the scene and Morris’s injuries.

                                                   6
intercourse but started to argue afterwards. When describing the argument, Foster recalled that he

was “being a jerk to her” by saying “mean” things, that she threatened to kill herself, that she

grabbed a knife, and that she “started to cut her hair off.” Next, Foster recalled that Morris attacked

him by cutting his neck, hand, and armpit with a knife.

                Additionally, Foster testified that he defended himself because he believed that

Morris was going to kill him, that they struggled for the knife, that she was holding the knife very

close to herself, and that she sustained injuries from the knife during their struggle to get control of

the knife. Regarding those injuries, Foster related that the knife made contact with Morris’s body

more than once resulting in a cut to her chin. When asked about some of the injuries to Morris’s

head, Foster denied “scalp[ing] her” but stated that “her hair could have gotten cut” during their

struggle because she was holding the knife “close to her.” In addition, Foster stated that he hit her

and tried to hold her down by the neck when trying to get the knife, that he gained control of the

knife, and that he threw the knife away. Finally, he denied assaulting her in the past but admitted

that he hit her a couple of times after she hit him first.

                After Foster finished testifying the first time, the district court stated that Foster

“messed up [his] self-defense” because, according to the district court, the indictment charged Foster

“with stabbing [Morris] with a knife and cutting her hair off,” “because [he had] to admit to the

conduct” to get the instruction, and because Foster did not admit to committing the charged conduct.

Following that exchange, Foster was called to the stand again. In his testimony, Foster admitted

that he cut Morris’s “hair with a knife” during “the struggle.”




                                                   7
                Following his second round of testimony, Foster again requested an instruction on

self-defense in light of the district court’s prior explanation for why Morris was not entitled to a self-

defense instruction and in light of Morris’s subsequent testimony admitting to cutting Morris’s hair

with a knife. In response, the district court denied the request and stated that Foster’s admission that

he cut Morris’s hair was “not enough” because Foster did not testify that he cut her hair in response

to her aggression.

                After the jury charge was prepared and after the jury considered the evidence

presented during the trial, the jury found Foster guilty of the charged offense.


                                            DISCUSSION

                In his first issue on appeal, Foster contends that the district court erred by denying his

request for a jury instruction on self-defense. In his second issue on appeal, Foster argues that the

district court erred by failing to convene a hearing on his motion for new trial. Given our resolution

of Foster’s first issue on appeal, we need not reach the second issue.


Self-Defense Instruction

                As indicated above, Foster contends that there was error in the jury charge. When

reviewing an alleged jury-charge error, appellate courts first determine whether error exists and

then, if so, ascertain whether the resulting harm is sufficient to warrant a reversal. See Price v. State,

457 S.W.3d 437, 440 (Tex. Crim. App. 2015); Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App.

2005). The amount of harm needed for a reversal depends on whether a complaint regarding “that

error was preserved in the trial court.” Swearingen v. State, 270 S.W.3d 804, 808 (Tex. App.—Austin



                                                    8
2008, pet. ref’d). If the defendant made a timely objection, reversal is required if there has been

“some harm.” Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g).

However, if no objection was made, a reversal is warranted only if the error resulted in “egregious

harm.” See Neal v. State, 256 S.W.3d 264, 278 (Tex. Crim. App. 2008).

                During trial, Foster requested an instruction on self-defense. “Self-defense is a

justification for otherwise unlawful conduct.” Torres v. State, 7 S.W.3d 712, 714 (Tex. App.—

Houston [14th Dist.] 1999, pet. ref’d). Under the Penal Code, “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’s use or attempted use of unlawful force.” Tex. Penal

Code § 9.31(a). “‘Reasonable belief’ means a belief that would be held by an ordinary and prudent

man in the same circumstances as the actor.” Id. § 1.07(a)(42).

                When determining whether a defensive instruction should have been provided,

appellate courts “view the evidence in the light most favorable to the defendant’s requested”

instruction. Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006). In general, a defendant

is entitled to a jury instruction on a defensive issue if the defensive issue “is raised by the evidence,

regardless of the strength or credibility of that evidence.” Farmer v. State, 411 S.W.3d 901, 906

(Tex. Crim. App. 2013). However, an instruction “is not required” if the evidence “does not establish

the defense.” Williams v. State, Nos. 03-14-00228—00229-CR, 2016 WL 370019, at *4 (Tex.

App.—Austin Jan. 27, 2016, no pet.) (mem. op., not designated for publication). “A defendant’s

testimony alone may be enough to require a self defense instruction.” Maxwell v. State, No. 03-06-

00473-CR, 2007 WL 2274883, at *2 (Tex. App.—Austin Aug. 6, 2007, pet. struck) (mem. op., not



                                                   9
designated for publication). “A trial court errs in denying a self defense instruction if there is some

evidence, from any source, when viewed in the light most favorable to the defendant, that will

support the elements of self defense.” Gamino v. State, 537 S.W.3d 507, 510 (Tex. Crim. App.

2017). “Whether a defense is supported by the evidence is a sufficiency question reviewable on

appeal as a question of law.” Shaw v. State, 243 S.W.3d 647, 658 (Tex. Crim. App. 2007).

                “In determining whether a defense is thus supported, a court must rely on its own

judgment, formed in the light of its own common sense and experience, as to the limits of rational

inference from the facts proven.” Id. “[W]hen the defensive evidence merely negates the necessary

culpable mental state, it will not suffice to entitle the defendant to a defensive instruction.” Id. at 659.

“Rather, a defensive instruction is only appropriate when the defendant’s defensive evidence essentially

admits to every element of the offense including the culpable mental state, but interposes the

justification to excuse the otherwise criminal conduct.” Id.; see also Juarez v. State, 308 S.W.3d 398,

404 (Tex. Crim. App. 2010) (explaining that doctrine of confession and avoidance “requires an

admission to the conduct, which includes both the act or omission and the requisite mental

state”). However, “[a]dmitting to the conduct does not necessarily mean admitting to every element

of the offense.” Gamino, 537 S.W.3d at 512. “For example, a defendant” can essentially admit to

the commission of murder but still deny “an intent to kill.” Id.

                Viewing the evidence in the light most favorable to Foster’s requested instruction,

evidence was presented during the trial indicating that Morris had physically tackled Foster on the

day before the alleged offense; that Morris initiated an assault on the day in question by using a knife

to cut Foster on his neck, hand, and armpit; and that Morris expressed concern that she might be



                                                    10
charged for the injuries that she inflicted on Foster. In addition, photographs were admitted into

evidence showing that Foster had a laceration on his neck on the night in question and showing that

Foster had a scar near his armpit. Furthermore, Foster testified that he believed that Morris was

going to try and kill him and decided to try to take the knife from Morris by wrestling it away from

her. Additionally, Foster admitted that as a result of that struggle, Morris sustained cuts to various

parts of her body.

                In its brief, the State asserts that the evidence summarized above is insufficient to

have warranted a self-defense instruction because Foster “did not admit to scalping” Morris, which

the State urges Foster was required to do in order to be entitled to an instruction. As support for this

proposition, the State notes that Foster was charged with aggravated assault, which requires proof

of serious bodily injury, see Tex. Penal Code § 22.02 (providing that person commits aggravated

assault by committing assault that “causes serious bodily injury to another”), and urges that “the only

injury that qualified as ‘serious bodily injury’” based on testimony given at trial “was an injury on

the back of [Morris]’s head where someone sliced off a large portion of her scalp,” see also id.

§ 1.07(a)(46) (defining “‘[s]erious bodily injury’” as “bodily injury that creates a substantial risk of

death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the

function of any bodily member or organ”).4


       4
          As support for these arguments, the State primarily relies on two prior opinions from this
Court. See Guzman v. State, No. 03-13-00131-CR, 2015 WL 2400238 (Tex. App.—Austin May 13,
2015, pet. ref’d) (mem. op., not designated for publication); Maxwell v. State, No. 03-06-00473-CR,
2007 WL 2274883 (Tex. App.—Austin Aug. 6, 2007, pet. struck) (mem. op., not designated for
publication). In both of those cases, the defendants admitted to some conduct, but they both denied
that their actions injured the alleged victims. See Guzman, 2015 WL 2400238, at *11 (observing
that “although appellant admitted that he struggled with Gay for the gun, he did not admit that he

                                                  11
                As an initial matter, we note that the indictment did not allege that Foster caused an

injury to Morris’s scalp; rather, the indictment asserted alternative means in which Foster allegedly

committed aggravated assault, including cutting Morris with a knife. Moreover, as described above,

Foster admitted that as a result of his struggle to get the knife away from Morris, Morris sustained cuts

from the knife, including cuts to her chin and to “her hair.” Accordingly, although his testimony is

inconsistent, Foster admitted to the criminal conduct alleged in the indictment of cutting Morris with

a knife and arguably admitted to causing an injury to her scalp. Cf. Miller v. State, 312 S.W.3d 209,

213 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (explaining that determination regarding

whether injury constitutes serious bodily injury is “a question of fact for the jury to decide”).

                Moreover, assuming for the sake of argument that Foster did not admit to causing

the injury to Morris’s scalp that served as the focus for much of the testimony presented at trial, that

would not compel a conclusion that Foster was not entitled to a self-defense instruction in the

circumstances present here, particularly where Foster did admit, consistent with the charges

presented in the indictment, that his actions resulted in Morris being cut with a knife. On the

contrary, the court of criminal appeals has indicated that a defendant is “‘not required to concede

the State’s version of the events’ in order to be entitled to a self defense instruction.” See Gamino,



committed the assaultive conduct alleged” because he “repeatedly denied ever hitting or kicking Gay,
adamantly maintained that he did not cause her injuries, asserted that the injuries were self-inflicted
by Gay, and suggested that the injuries were caused by other objects (such as the mailboxes) during
their struggle over the gun”); Maxwell, 2007 WL 2274883, at *2 (noting that “although Maxwell
admitted that he struggled for a gun, he did not admit that he fired the gun or that he fired the shot
that killed Ramirez”). In contrast, in this case, although his testimony was inconsistent, Foster did
admit that his actions resulted in Morris being cut multiple times with a knife when he struggled with
Morris in order to take the knife away from her, and the indictment in this case alleged that Foster
cut Morris with a knife.

                                                   12
537 S.W.3d at 512 (quoting Gamino v. State, 480 S.W.3d 80, 88 (Tex. App.—Fort Worth 2015),

aff’d, 537 S.W.3d 507). Moreover, opinions by our sister courts of appeals have also indicated that

if a defendant admits to using force against an alleged victim, as provided under the self-defense

provision of the Penal Code, see Tex. Penal Code § 9.31(a), he should not “be denied the defense

simply because he refused to admit to using the type of force alleged by the State,” see Holloman

v. State, 948 S.W.2d 349, 352 (Tex. App.—Amarillo 1997, no pet.) (commenting that “[i]t would

be nonsensical to prohibit the defendant from claiming self-defense” if he admitted to using force

in manner different from that alleged in indictment); see also Hubbard v. State, 133 S.W.3d 797,

801-02 (Tex. App.—Texarkana 2004, pet. ref’d) (stating that “even if a defendant denies the specific

allegations in the indictment, he or she is not necessarily precluded from raising defensive issues as

long as he or she sufficiently admits conduct underlying the offense and provides evidence justifying

a defensive instruction”); Torres, 7 S.W.3d at 716 (determining that defendant raised issue of self-

defense even though he denied “intentionally and knowingly causing bodily injury to” his wife

because he admitted “to grabbing his wife by her hair, possibly hitting her in the face . . . , struggling

with her, and pushing her away”).

                In light of the preceding and given the standard by which we are required to review

this type of alleged jury-charge error, we conclude that evidence was presented that Foster reasonably

believed that his use of force was immediately necessary to protect himself against Morris’s use of

unlawful force and conclude that the district court erred by not submitting a self-defense instruction.

Cf. Alonzo v. State, 353 S.W.3d 778, 780, 783 (Tex. Crim. App. 2011) (determining that testimony

from defendant that victim “attacked him with . . . a metal object, that the two engaged in a struggle,”



                                                   13
that victim grabbed spike, that victim attacked defendant with spike, that they struggled for control

of spike, and that next thing defendant knew was that victim had “a hole in his chest” that “must

have happened during the struggle” when they “were so close fighting” was sufficient “to raise the

issue of self-defense”); VanBrackle v. State, 179 S.W.3d 708, 714 (Tex. App.—Austin 2005, no pet.)

(noting that “[w]hether the events in question actually transpired in the manner described by the

defensive testimony and whether appellant’s conduct was reasonable under the circumstances are

fact issues to be determined by a jury”).

                Having determined that there was error in the jury charge, we must now determine

whether Foster was harmed by the error. As set out above, Foster’s request for the instruction was

denied by the district court, and we, accordingly, assess whether Foster suffered some harm by the

omission. See Jiminez v. State, 953 S.W.2d 293, 299 (Tex. App.—Austin 1997, pet. ref’d). In this

type of analysis, reviewing courts “consider: (1) the jury charge as a whole, (2) the arguments of

counsel, (3) the entirety of the evidence, and (4) other relevant factors present in the record.” Reeves

v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). Although the standard is less stringent than

the analysis performed when an objection is not made, the reviewing court must still “find that the

defendant ‘suffered some actual, rather than merely theoretical, harm from the error.’” Id. (quoting

Warner v. State, 245 S.W.3d 458, 462 (Tex. Crim. App. 2008)). If there has been an objection, a

reversal is warranted when the error is “calculated to injure the rights of the defendant.” Id. (quoting

Almanza, 686 S.W.2d at 171). “In other words, a properly preserved error will require reversal as

long as the error is not harmless.” Gamino, 480 S.W.3d at 90.




                                                  14
                Moreover, we note that the absence of a confession-and-avoidance-defense instruction

“is generally harmful because its omission leaves the jury without a vehicle by which to acquit a

defendant who has admitted to all the elements of the offense.” Cornet v. State, 417 S.W.3d 446,

451 (Tex. Crim. App. 2013); see also id. (stating that “[i]n general, when there is a single offense

tried before a jury, it is impossible to determine how a jury would have weighed the credibility of

the evidence on a defensive issue, and, therefore, appellate courts have reversed convictions in

order to permit the jury to decide whether it believes the defensive evidence”). In addition, we note

that if the issue of self-defense is raised by the evidence, the State has the burden of proving “beyond

a reasonable doubt that the defendant did not act in self-defense.” VanBrackle, 179 S.W.3d at 717

(citing Tex. Penal Code § 2.03(d)). In other words, “[h]ad the jury in this cause been properly

instructed, it needed only to have a reasonable doubt as to whether [Foster]’s actions were justified

by self-defense to render an acquittal.” Id.

                Turning to the first factor, the district court denied Foster’s request for an instruction

on self-defense. As a result, the jury was not given the opportunity to consider whether the evidence

regarding Foster’s alleged use of force could be legally justified as self-defense and had no option

of acquitting Foster of the charges in light of his admissions. See Dugar v. State, 464 S.W.3d 811,

822 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) (explaining that when self-defense “instruction

was taken away from the jury, appellant was left without his only defensive theory, making his

conviction a virtual inevitability”). Accordingly, this factor weighs in favor of a determination that

Foster was harmed by the error.

                Regarding the parties’ arguments, Foster discussed self-defense during his opening

and closing statements. In particular, he asserted during his opening statement that the evidence

                                                   15
would show that Morris was the aggressor, that Morris assaulted Foster with a knife first, and that

Foster fought back to “protect his life,” and Foster also related that the jury should consider his

“evidence of self-defense” when making their determination. In his closing arguments, Foster

attacked the victim’s credibility and urged that the State had not proved its case beyond a reasonable

doubt, but Foster also noted that there was no self-defense instruction in the jury charge and that he

could not argue self-defense in this case. Moreover, the State in its closing referenced the portions

of Foster’s testimony in which he admitted that his actions resulted in Morris being cut. Accordingly,

this factor would seem to weigh in favor of a determination that Foster was harmed by the absence

of a self-defense instruction in the jury charge.

                Turning to other portions of the record, we note that during voir dire, the State and

Foster both emphasized self-defense. In particular, the State listed the elements of the defense and

provided examples of when self-defense might and might not be warranted. Additionally, Foster

focused on self-defense and extensively questioned the panelists about whether they could entertain

a self-defense instruction when the defendant is a man and when the alleged victim is a woman.

Further, the district court explained during voir dire what the elements of self-defense are and stated

that if the elements were met, then there would be an instruction for that defense in the jury charge.

Later, the district court went through the elements again after displaying the statutory provision for

the jury panelists to examine, questioned the panel about whether they thought that “a man can’t ever

have a self-defense claim against a woman,” and discussed what types of force would be considered

a reasonable response to an attack. Given the focus on self-defense and in light of the district court’s

statement that an instruction would only be provided if the evidence warranted an instruction, we



                                                    16
believe that this factor weighs in favor of a determination that Foster was harmed by the omission.

Cf. Johnson v. State, 271 S.W.3d 359, 368 (Tex. App.—Beaumont 2008, pet. ref’d) (noting as part

of harm analysis that defendant questioned jury panel on defensive theory).

                Regarding the evidence presented at trial, we note, as summarized above, that Foster

admitted in his testimony to using force against Morris that resulted in Morris being injured and

asserted that he was defending himself against Morris’s alleged assault, and photographs of injuries

that Foster purportedly sustained on the night in question were admitted into evidence and shown

to the jury. In addition, Detective Anderson testified that Foster may have had defensive wounds

to his hands and that Morris expressed concern that she might be charged for her conduct on the

night in question. Moreover, on the recordings of Foster’s phone conversations, Foster stated that

Morris held the knife to his throat.

                Unquestionably, other evidence was presented during trial indicating that Morris

did not assault Foster on the night in question and significantly undermining Foster’s claim of self-

defense. However, in light of the evidence raising the issue of self-defense, of our resolution of the

factors discussed above, and of the governing case law indicating that the denial of a defensive

instruction in cases involving a single offense is generally harmful, see Cornet, 417 S.W.3d at

451, we cannot conclude that the absence of a self-defense instruction was harmless under the

circumstances present here.

                For all of these reasons, we conclude that the district court erred by denying Foster’s

request for a self-defense instruction and that the failure to provide that instruction resulted in some

harm to Foster. Cf. Johnson, 271 S.W.3d at 368-69 (determining that defendant was harmed by



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absence of defensive instruction where defendant admitted that she stabbed victim “to stop him

from jumping on her or hitting her” but where “jury was not instructed to consider” defensive

theory, which prevented jury from considering acquitting defendant “by reason of her immediate

need to defend herself”); VanBrackle, 179 S.W.3d at 717 (concluding that trial “court’s refusal to

instruct the jury on self-defense caused some harm to appellant” despite significant deficiencies in

defensive evidence). Accordingly, we sustain Foster’s first issue on appeal.

               Having sustained Foster’s first issue on appeal, we need not address Foster’s second

issue on appeal.


                                         CONCLUSION

               Having sustained Foster’s first issue on appeal, we reverse the district court’s

judgment of conviction and remand for further proceedings consistent with this opinion.



                                              __________________________________________

                                              David Puryear, Justice

Before Justices Puryear, Pemberton, and Bourland

Reversed and Remanded

Filed: July 24, 2018

Do Not Publish




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