                                                                    ACCEPTED
                                                                12-16-00289-CR
                                                    TWELFTH COURT OF APPEALS
                                                                 TYLER, TEXAS
                                                             11/28/2017 6:39 PM
                                                                      Pam Estes
                                                                         CLERK

       CAUSE NO. 12-16-00289-CR

IN THE 12th DISTRICT COURT OF APPEALS FILED IN
                                   12th COURT OF APPEALS
              TYLER, TEXAS              TYLER, TEXAS
                                        11/28/2017 6:39:33 PM
         RON DEVOR BARRETT,                    PAM ESTES
                                                 Clerk

                        APPELLANT
                   V.

         THE STATE OF TEXAS,

                        APPELLEE

 STATE’S REPLY TO APPELLANT’S BRIEF


     ORAL ARGUMENT NOT REQUESTED

                    D. Matt Bingham
                    Criminal District Attorney
                    Smith County, Texas

                    Sarah K. Bales Mikkelsen
                    Assistant Criminal District Attorney
                    Bar I.D. No. 24087139
                    Smith County Courthouse
                    100 N. Broadway
                    Tyler, Texas 75702
                    ph: (903) 590-1720
                    fax: (903) 590-1719
                                         TABLE OF CONTENTS

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       iii

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          1

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       2

REPLY TO APPELLANT’S POINTS OF ERROR . . . . . . . . . . . . . . . . . . . . . . . .                 3

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            4

COUNTERPOINT: BARRETT DID NOT CONFESS TO THE CHARGED
CONDUCT, SO HE WAS NOT ENTITLED TO SELF-DEFENSE AND DEFENSE
OF PROPERTY INSTRUCTIONS. BECAUSE THE TRIAL COURT PROPERLY
REFUSED TO INCLUDE THE REQUESTED INSTRUCTIONS, THERE IS NO
NEED TO CONDUCT HARM ANALYSES.
   STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          4
   APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      6
   ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    8

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   12

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      14

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            14

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       15




                                                      ii
                                       INDEX OF AUTHORITIES

STATUTE/RULES                                                                                         PAGE

Tex. Code Crim. Proc. Ann. (West 2015)
 art. 36.14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    6

Tex. Penal Code Ann. (West 2015)
 § 22.01 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        1

Tex. R. App. P.
 9.4 (i)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   14


STATE CASES                                                                                           PAGE

Clifton v. State, 21 S.W.3d 906
  (Tex. App.—Fort Worth 2000, pet. ref’d) . . . . . . . . . . . . . . . . . . . .                      6

Ex parte Nailor, 105 S.W.3d 272
  (Tex. Crim. App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .             9

Ex Parte Nailor, 149 S.W.3d 125
  (Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Granger v. State, 3 S.W.3d 36
 (Tex. Crim. App. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .             12

Holloman v. State, 948 S.W.2d 349
 (Tex. App.—Amarillo 1997, no pet.) . . . . . . . . . . . . . . . . . . . . . . .                      8

Juarez v. State, 308 S.W.3d 398
  (Tex. Crim. App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 12




                                                      iii
                           INDEX OF AUTHORITIES, CONTINUED

STATE CASES                                                                             PAGE

Kunkle v. State, 771 S.W.2d 435
 (Tex. Crim. App. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 12

Ngo v. State, 175 S.W.3d 738
 (Tex. Crim. App. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 11

Rodriguez v. State, 392 S.W.3d 859
 (Tex. App.—Amarillo 2013, no pet.) . . . . . . . . . . . . . . . . . . . . . . .        7, 8




                                               iv
                        CAUSE NO. 12-16-00289-CR

                IN THE 12th DISTRICT COURT OF APPEALS
                              TYLER, TEXAS

                           RON DEVOR BARRETT,

                                           APPELLANT
                                      V.

                           THE STATE OF TEXAS,

                                           APPELLEE

                 STATE’S REPLY TO APPELLANT’S BRIEF


      The State of Texas respectfully urges this Court to overrule appellant

Ron Barrett’s alleged errors and affirm the judgment of the trial court.


                           STATEMENT OF THE CASE

      On November 20, 2015, Ron Devor Barrett was charged by information

with misdemeanor assault family violence in Cause No. 002-83264-15, filed

in County Court at Law #2, Smith County, Texas. Tex. Penal Code Ann.

§ 22.01 (a)(1) (West 2015); (1 C.R. at 2). Barrett retained Clifton Roberson to

represent him and pleaded not guilty. (1 C.R. at 4, 67.) On October 18, 2016,

the jury convicted Barrett and sentenced him to six months’ confinement in the

county jail, with a $2,000 fine. (C.R. at 44.) On June 28, 2017, the court

                                      1
appointed appellate counsel Austin Jackson. (Supp. C.R. at 1.) He filed a brief

on October 12, 2017, and the State’s response is due by November 28, 2017.


                             STATEMENT OF FACTS

      On October 16, 2015, Tiffany Pinkerton begrudgingly drove to an

auto shop in Tyler to return the Suburban that Ron Barrett had loaned

her earlier that fall. (2 R.R. at 157.) Incensed over losing access to Barrett’s

vehicle, Pinkerton stepped out with a combination axe/sledgehammer

and began to attack the hood. (2 R.R. at 161.) At some point after Barrett

disarmed Pinkerton, he repeatedly punched her in the face with a closed fist.

(2 R.R. at 163; 3 R.R. at 30.) From across the street, Jeffrey Hayes watched

as Barrett doggedly pursued his victim down the street, kicking, punching,

and choking her when she tried to escape. (3 R.R. at 46, 51.) After

Officer Robert Main arrived in response to Hayes’s 911 call, Barrett angrily

complained about the property damage to his Suburban. (2 R.R. at 216.) And

while he acknowledged that they fought after he took the axe from Pinkerton,

Barrett never admitted to striking or injuring her. (2 R.R. at 217, 222.)

      At trial, Barrett did not take the stand. However, his friend,

Cedric Nobles, claimed that Barrett was trying to protect himself when he

                                       2
grabbed Pinkerton during their initial struggle over the axe. (3 R.R. at 75, 80.)

However, Nobles never indicated that Barrett struck or injured Pinkerton.

What’s more, he denied seeing or hearing any aspect of the second incident.

(3 R.R. at 82.) And according to Pinkerton, the deep gash over her forehead

was caused not by being punched, but by the axe striking her during their

initial struggle. (3 R.R. at 90.) In fact, she maintained that Barrett did not

intentionally, knowingly, or recklessly cause her injuries. (2 R.R. at 202.)

Beyond that, Pinkerton claimed not to remember whether he had kicked, hit,

or choked her during the second incident. (3 R.R. at 91.) Instead, she merely

acknowledged that he laid hands on her after she took a swing at him.

(3 R.R. at 91, 100.)


                    REPLY TO APPELLANT’S POINTS OF ERROR

COUNTERPOINT:     BARRETT DID NOT CONFESS TO THE CHARGED CONDUCT, SO HE WAS
                  NOT ENTITLED TO SELF-DEFENSE AND DEFENSE OF PROPERTY
                  INSTRUCTIONS. BECAUSE THE TRIAL COURT PROPERLY REFUSED TO
                  INCLUDE THE REQUESTED INSTRUCTIONS, THERE IS NO NEED TO
                  CONDUCT HARM ANALYSES.




                                       3
                            SUMMARY OF ARGUMENT

      In his first and second issues, Barrett complains about the trial court’s

refusal to include his requested self-defense and defense of property

instructions in the jury charge. To be entitled to either of these instructions, he

must have admitted to the act alleged in the information—that he

intentionally, knowingly, or recklessly injured Tiffany Pinkerton by striking her

with his hands. Instead, Barrett claimed that Pinkerton was accidentally injured

by the axe. Therefore, the confession and avoidance doctrine was not satisfied,

and he was not entitled to his requested instructions.

      Finally, Barrett complains in his third ground that he was harmed by the

trial court’s failure to include his requested instructions. But the trial court’s

refusal to include the instructions was proper, and harm analyses are only

conducted if there is charge error.


A.    STANDARD OF REVIEW

      1. The standard of review for when a trial court improperly denies a
         requested instruction depends on whether the defendant preserved error.

      On appeal, the court reviews alleged charge error by considering

(1) whether error existed in the charge; and (2) whether sufficient harm


                                        4
resulted from the error to compel reversal. Ngo v. State, 175 S.W.3d 738, 744

(Tex. Crim. App. 2005). In cases where the evidence fails to raise a defensive

issue, the trial court commits no error in refusing a requested instruction, and

the reviewing court will not conduct a harm analysis. Id. at 743;

Kunkle v. State, 771 S.W.2d 435, 444 (Tex. Crim. App. 1986).

      When the trial court improperly refuses a requested instruction, the

degree of harm necessary for reversal depends on whether the appellant

preserved the error by objection. Ngo, 175 S.W.3d at 743. Under Almanza, jury

charge error requires reversal when the defendant has properly objected to the

charge and the reviewing court finds “some harm” to his rights. Ibid. However,

when the defendant either fails to object or affirmatively states that he has no

objection to the charge, reversal is not required unless the error caused the

defendant “egregious harm.” Id. at 743-44.


      2. Barrett properly preserved his jury charge complaints for appellate
         review. Therefore, reversal will be required if this Court finds charge
         error that caused “some harm” to his rights.

      In his argument, Barrett expresses concern that the Court will find that

he failed to preserve error because (1) he did not submit his charge objections

in writing; and (2) the State’s proposed jury charge is not included in the

                                       5
record. (Appellant Br. at 5.) But his lawyer clearly explained his requests for

self-defense and defense of property instructions, and the trial court even

suspended the charge conference so that the lawyers could research and

present case law in support of their respective positions. (3 R.R. at 111, 119.)

Additionally, the record is clear that the State’s original proposed jury charge

contained self-defense instructions, and the requirement that charge objections

be in writing is satisfied if they are “dictated to the court reporter in the

presence of the court and the State’s counsel, before the reading of the court’s

charge to the jury.” Tex. Code Crim. Proc. Ann. art. 36.14 (West 2015).

Therefore, the State concedes that Barrett properly preserved his objections to

the jury charge.


B.    APPLICABLE LAW

      1. A defendant must satisfy the confession and avoidance doctrine before
         he is entitled to a jury instruction on self-defense.

      Before an instruction on self-defense is warranted, the defendant has the

burden of coming forward with evidence that sufficiently raises the issue.

Clifton v. State, 21 S.W.3d 906, 907 (Tex. App.—Fort Worth 2000, pet. ref’d).

Under the confession and avoidance doctrine, a self-defense instruction is only


                                       6
appropriate when the defendant admits to every element of the offense,

including the culpable mental state, but introduces a justification that excuses

the otherwise criminal conduct. Ex Parte Nailor, 149 S.W.3d 125, 132 (Tex.

Crim. App. 2004). Once this burden is met, the defendant has the right to a

self-defense instruction, whether the evidence is “weak or strong, unimpeached

or contradicted, and regardless of what the trial court may or may not think

about the credibility of the evidence.” Ibid. But if the evidence, viewed in the

light most favorable to the defendant, does not establish self-defense, the

defendant is not entitled to an instruction on the issue. Ibid.


      2. A defendant must satisfy the confession and avoidance doctrine before
         he is entitled to a jury instruction on defense of property.

      Like self-defense, defense of property is a confession-and-avoidance type

of defense in which a defendant claims that his conduct was immediately

necessary to prevent a crime against his property. Rodriguez v. State,

392 S.W.3d 859, 860-61 (Tex. App.—Amarillo 2013, no pet.). But before he

is entitled to use the defense, he must admit to committing the act with the

requisite culpable mental state. Juarez v. State, 308 S.W.3d 398, 404 (Tex.

Crim. App. 2010). By definition, a justification defense does not rest upon the


                                       7
negation of a specific element of the charged offense, but instead excuses what

would otherwise constitute criminal conduct. Rodriguez, 392 S.W.3d at 861.


C.    ARGUMENT

      1. Barrett’s case is distinguished from Holloman.

      In his brief, Barrett cites Holloman v. State in support of his argument

that a defendant charged with assault is not required to admit to the “exact

manner and means alleged” to be entitled to a defensive instruction.

(Appellant Br. at 10.) But in that case, Holloman took the stand and admitted

to fighting with his wife, so the Seventh Court of Appeals found “evidence in

the record from which it could reasonably be said that he conceded striking

her.” Holloman v. State, 948 S.W.2d 349, 352 (Tex. App.—Amarillo 1997, no

pet.). In fact, the only real question in that case seemed to concern whether

Holloman injured his wife using his legs or hands. Ibid.

      This case bears little resemblance to Holloman, because Barrett never

admitted to intentionally, knowingly, or recklessly injuring Pinkerton.

(2 R.R. at 150, 202, 222; 3 R.R. at 149.) Instead, his defense consistently

maintained that Pinkerton’s injuries were caused by accident when she was

struck with the axe. (2 R.R. at 150; 3 R.R. at 90, 149.) By denying the

                                      8
applicable culpable mental state, Barrett’s discrepancies with the charges

against him extend well beyond mere quibbles over the “exact manner and

means alleged.” Consequently, Holloman is inapplicable.


      2. In Ex parte Nailor, the defendant claimed that he acted in self-defense
         but denied the act that the State alleged caused his victim’s injury
         (striking her with his hand). As a result, the confession and avoidance
         doctrine was not satisfied, and he was not entitled to a charge
         instruction on necessity.

      Another case clearly answers the question of whether Barrett was entitled

to his requested charge instructions. In that case, the State charged

Mark Nailor with misdemeanor assault after he punched his girlfriend,

Ella Vines. Ex parte Nailor, 149 S.W.3d 125, 132 (Tex. Crim. App. 2004). At

trial, the defendant denied punching Vines and instead provided a version of

events that bore little resemblance to the charges laid out in the information.

Ex parte Nailor, 149 S.W.3d 125, 132 (Tex. Crim. App. 2004). According to

Nailor, he raised his arms to protect himself when Vines raised a brass eagle

over her head and threatened him. Ex parte Nailor, 105 S.W.3d 272, 274 (Tex.

Crim. App. 2003). When he knocked the eagle out of her hands, Nailor claimed

that it accidentally struck and injured her face. Ibid.



                                        9
      Based on Nailor’s testimony, the Court of Criminal Appeals concluded

that he “did not, at least overtly, rely on the law of self-defense; he testified to

the lack of a culpable mens rea, and he denied that the act the State alleged as

causing her injury—striking Ella with his hand—was, in fact, the cause of her

injury.” Ex parte Nailor, 149 S.W.3d 125, 132-33 (Tex. Crim. App. 2004). In

other words, because Nailor’s position was that the victim was accidentally

injured and that he did not strike the victim with his hand as alleged by the

State, his defense was “more in the nature of a denial of two of the State’s

alleged elements, rather than an admission of those elements with a legal

justification for them.” Ibid. Therefore, Nailor was not entitled to a jury

instruction on the defense of necessity. Ibid.


      3. In this case, Barrett claimed that he acted in self-defense and defense of
         property. However, he denied the act that the State alleged caused his
         victim’s injury (striking Pinkerton with his hand). As a result, the
         confession and avoidance doctrine was not satisfied, and he was not
         entitled to charge instructions on self-defense and defense of property.

      The circumstances of Nailor and Barrett’s crimes are remarkably similar,

and this Court should likewise conclude that the trial court properly refused to

include Barrett’s requested instructions in the jury charge based on the

following:

                                        10
• Like Nailor, Barrett was charged by information with misdemeanor assault
  for intentionally, knowingly, and recklessly causing bodily injury by striking
  the victim with his hands. Ex parte Nailor, 149 S.W.3d 125, 132-33 (Tex.
  Crim. App. 2004); (1 C.R. at 2).

• Like Nailor, Barrett’s defense denied that striking Pinkerton with his hand
  caused her injury. Ex parte Nailor, 149 S.W.3d 125, 132-33 (Tex. Crim. App.
  2004); (3 R.R. at 90).

• Like Nailor, Barrett’s position was that the victim was accidentally injured,
  caused by the struggle over the axe. In that way, his defense was akin to a
  denial of two of the State’s alleged elements, rather than an admission of
  those elements backed by a legal justification for them. Ibid.

• Like Nailor, Barrett denied committing the charged offense when he denied
  having the requisite intent or committing the act alleged in the information.
  Ibid.

• Like Nailor, Barrett was not entitled to his requested charge instructions
  because he failed to satisfy the confession and avoidance doctrine.



      4. The trial court properly denied Barrett’s requested charge instructions,
         so there is no need for harm analyses.

      In his third and final point of error, Barrett complains that he was

harmed by the trial court’s refusal to submit his requested self-defense and

defense of property instructions. But in Ngo, the Court of Criminal Appeals

explained that it conducts a harm analysis only if it has already concluded that

the trial court committed charge error. Ngo, 175 S.W.3d at 743. As previously

established, the trial court did not commit charge error because Barrett was not

                                       11
entitled to his requested instructions after he denied committing the charged

offense. Therefore, there is no need for harm analyses, and Barrett’s third and

final point of error should be overruled. See Kunkle, 771 S.W.2d at 444.


                                 CONCLUSION

      In his first two issues, Barrett complains that the trial court erred when

it denied his requests for self-defense and defense of property instructions in

the jury charge. Although a defendant is entitled to a charge instruction on any

defensive issue raised by the evidence, certain conditions must be met.

Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). First, the defendant

must admit not only to the act, but also to the requisite mental state. Juarez,

308 S.W.3d at 406. Therefore, Barrett was required to admit that he

intentionally, knowingly, and recklessly injured Tiffany Pinkerton by striking

her with his hand. But Barrett never admitted to striking Pinkerton with his

hand, and he contended that her injury was caused accidentally during a

struggle over the axe. As a consequence, the confession and avoidance doctrine

was not satisfied and Barrett was not entitled to self-defense and defense of

property instructions. Because the trial court properly refused to submit the



                                      12
requested instructions, there is no need for a harm analysis. In conclusion, each

of Barrett’s three points of error is without merit and should be overruled.




                                       13
                                   PRAYER

        The State asks the Court to overrule Ron Barrett’s three points of error

and affirm the judgment of County Court at Law #2, Smith County, Texas.

                                    Respectfully submitted,

                                    D. Matt Bingham
                                    Smith County Criminal District Attorney




                                    Sarah K. Bales Mikkelsen
                                    Asst. Criminal District Attorney
                                    Bar No. 24087139
                                    100 N. Broadway, 4th Fl.
                                    Tyler, Texas 75702
                                    (903) 590-1720
                                    (903) 590-1719 (fax)
                                    smikkelsen@smith-county.com


                        CERTIFICATE OF COMPLIANCE

        In compliance with Texas Rule of Appellate Procedure 9.4 (i)(3), this

document contains 3,247 words.




                                    Sarah K. Bales Mikkelsen



                                     14
                           CERTIFICATE OF SERVICE

      On November 28, 2017, the following have been completed:

(1)   The original legible copy of the State’s Response to Appellant’s Brief in
      the above numbered cause has been sent via electronic filing to the
      Clerk of the Court of Twelfth Court of Appeals.

(2)   A legible copy of the State’s Response to Appellant’s Brief in the above
      numbered cause has been sent has been sent via electronic filing to
      Austin Jackson at JLawAppeals@gmail.com




                                    Sarah K. Bales Mikkelsen
                                    Asst. Criminal District Attorney
                                    Bar No. 24087139
                                    100 N. Broadway, 4th Fl.
                                    Tyler, Texas 75702
                                    (903) 590-1720
                                    (903) 590-1719 (fax)
                                    smikkelsen@smith-county.com




                                      15
