                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                  ________________________

                                       No. 07-14-00145-CR
                                  ________________________

                             CHRISTOPHER EVANS, APPELLANT

                                                   V.

                              THE STATE OF TEXAS, APPELLEE



                            On Appeal from the 52nd District Court
                                    Coryell County, Texas
              Trial Court No. FAM-13-21662; Honorable Trent D. Farrell, Presiding


                                            March 23, 2015

                                MEMORANDUM OPINION
                      Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


        Following a plea of not guilty, Appellant, Christopher Evans, was convicted by a

jury of aggravated assault with an affirmative finding on use of a deadly weapon. 1

Punishment was assessed by the trial court at twenty years confinement.                         By two


        1 TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). As applicable to this case, a person commits
aggravated assault by intentionally or knowingly threatening another with imminent bodily injury while
using or exhibiting a deadly weapon during the commission of that threat. Id. at § 22.02(a)(2). A firearm
is a deadly weapon. Id. at § 1.07(a)(17)(A). As indicted, the offense was a second degree felony
punishable by confinement of not more than twenty years or less than two years and by a fine not to
exceed $10,000. Id. at § 12.33(a).
issues, Appellant asserts the trial court erred by failing to grant his request for a jury

charge instruction as to (1) a self-defense and (2) necessity. We reverse and remand.


                                      BACKGROUND


      Appellant and his former girlfriend, Kimberly, had a son together in 2010. After

their relationship ended in March 2012, they entered into an informal visitation

agreement whereby Appellant would contact Kimberly when he wanted visitation. The

parties would meet and exchange possession of their son. Appellant would then return

his son to her that evening or sometimes a few days later.


      Towards the end of 2012, Kimberly was in a relationship with Kevin Drayton, the

victim in the underlying case.     Appellant and Kevin were not strangers to verbal

altercations—face to face or by phone. On December 26, 2012, the child’s birthday,

Appellant asked for and was granted visitation. He picked the child up from Kimberly’s

apartment and agreed to return him later that day. According to Appellant, his son was

not properly dressed for the cold weather which caused him concern.


      During visitation, Appellant was potty training his son and discovered he had

passed a ball bearing. He took him to the emergency room where an x-ray revealed a

second metallic object still lodged in his intestines. He called Kimberly and informed her

of the situation and asked for his son’s Medicaid information. He also told her CPS and

the police had been called and that he would not be relinquishing possession of his son.

Appellant kept his son during the CPS investigation which eventually ruled out any

neglect.



                                            2
      For approximately two weeks, Kimberly sent numerous text messages to

Appellant asking to see her son.     Kimberly’s requests were refused.    According to

Appellant, during this time period, he received death threats by text messages from

three separate numbers he could not identify but believed one of the numbers belonged

to Kevin. Also during this time frame, Appellant had an attempted break-in at his

apartment.


      Hopeful that allowing Kimberly visitation would end the death threats, Appellant

agreed to a meeting. They met in a grocery store parking lot during the evening hours

of January 7, 2013. Appellant insisted they meet alone—without Kevin—and Kimberly

acquiesced. Kimberly wanted her son returned, but Appellant intended for her to only

visit with him. Once at the parking lot, they struggled for possession of the child and

Appellant tried to take Kimberly’s keys so she would not drive away with the child. At

the moment, the child was not restrained in a car seat or seat belt. Unbeknownst to

Appellant, Kevin was present at the location.    Kevin, a larger man than Appellant,

surprised him and stated something to the effect of “that’s enough.” Appellant, who

testified he was scared, pulled a gun from his jacket and threatened Kevin to back away

or he would die. Kevin complied and Appellant again attempted to take Kimberly’s keys

so she would not drive away with the child. Kevin then jumped Appellant from behind,

wrestled him to the ground and disarmed him. During the scuffle, the gun fell from

Appellant’s grip and landed under his vehicle.


      Patrol officers and an off-duty officer happened to be at a business across the

street when they heard the fighting and responded. When they arrived at the scene,



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Kimberly drove away with her son.2 The officers separated and handcuffed both parties

until the gun could be located.             They interviewed two eyewitnesses, Kevin, and

Appellant’s current girlfriend, who had arrived in her own car during the scuffle.

Appellant was placed in a patrol car.                After statements were taken, Kevin and

Appellant’s girlfriend were released. Appellant was arrested for aggravated assault and

transported to jail.


        Appellant’s trial strategy was that he pulled his gun on Kevin to defend himself

and that his conduct was justified. During the charge conference, defense counsel

asked for a self-defense instruction, although her emphasis was on a necessity

instruction. The trial court denied both defensive instructions.


        Appellant contends by two issues that the trial court erred in denying his requests

for these defensive jury instructions.          The State argues the trial court’s ruling was

proper, and if charge error exists, there is no showing of harm to Appellant. Because

both issues require similar analysis, we will review them simultaneously.


                                        STANDARD OF REVIEW


        We review a trial court’s denial of a requested jury instruction under an abuse of

discretion standard of review. Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim.

App. 2004). A trial court does not abuse its discretion when its decision is within the

zone of reasonable disagreement. See Casey v. State, 215 S.W.3d 870, 879 (Tex.

Crim. App. 2007). The denial of a defensive instruction is an abuse of discretion if the




       2 One of the officers instructed Kevin to call Kimberly and request that she return to the scene to

answer questions. Kimberly left her son nearby with a cousin and returned to the scene.
                                                     4
defensive theory is raised by the evidence from any source and a charge is properly

requested. Shaw v. State, 243 S.W.3d 647, 662 (Tex. Crim. App. 2007).


                                   JURY CHARGE ERROR


       An appellate court should review a claim of charge error pursuant to the

standards discussed in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).

Review is a two-step process. First, a reviewing court must determine whether charge

error occurred.   Secondly, the reviewing court must determine whether the error is

harmless. Charge error requires reversal when a proper objection has been made and

the reviewing court finds “some harm,” i.e., error that is calculated to injure the rights of

the defendant. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). If the

court finds error that is not harmless, reversal is called for if the error has been properly

preserved.   Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013) (citing

Almanza, 686 S.W.2d at 171).


                         JURY INSTRUCTIONS—DEFENSIVE ISSUES


       A defendant is entitled, upon a timely request, to an instruction on any defensive

issue raised by the evidence provided that (1) the defendant timely requests an

instruction on that specific theory and (2) the evidence raises that issue. Rogers v.

State, 105 S.W.3d 630, 639 (Tex. Crim. App. 2003). A defendant is entitled to an

instruction on every defensive issue raised regardless of whether the evidence is

strong, feeble, unimpeached or contradicted, and even when the trial court thinks that

the testimony is not worthy of belief. Walters v. State, 247 S.W.3d 204, 209 (Tex. Crim.

App. 2007). This rule is designed to insure that the jury, not the judge, will decide the

                                             5
relative credibility of the evidence. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App.

1999); Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991).


       To determine whether a defense issue has evidentiary support, we review the

record in the light most favorable to the defendant. Bufkin v. State, 207 S.W.3d 779,

782 (Tex. Crim. App. 2006). Additionally, a defendant’s testimony alone is sufficient to

raise a defensive issue. Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987)

(op. on reh’g). In analyzing whether a defendant was entitled to an instruction, the issue

is not the truth or credibility of the defendant’s testimony; the issue is whether the jury

should have been instructed to decide those questions under the applicable law. Id. at

808.


                                             SELF-DEFENSE


       Self-defense is the use of 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. See TEX. PENAL CODE ANN. § 9.31(a)

(West 2011).3 Entitlement to a self-defense instruction requires the defendant to admit

the act alleged, including the culpable mental state, and produce evidence supporting

the defense. Juarez v. State, 308 S.W.3d 398, 399 (Tex. Crim. App. 2010). However,

even if the evidence raises a claim of self-defense, a trial court does not err by refusing

submission of that issue if the evidence conclusively establishes one of the exceptions

listed in section 9.31(b) (listing circumstances where the use of force is not justified).

Dyson v. State, 672 S.W.2d 460, 463-65 (Tex. Crim. App. 1984).                         Here, the State



       3   All future references to “§” or “section” are to the Texas Penal Code Annotated (West 2011).
                                                         6
contends Appellant’s use of force was not justified because it was in response to verbal

provocation alone. See § 9.31(b)(1).


                                  NECESSITY DEFENSE


      Under the defense of necessity, unlawful conduct is justified if (1) the actor

reasonably believes the conduct is immediately necessary to avoid imminent harm; (2)

the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary

standards of reasonableness, the harm sought to be prevented by the law proscribing

the conduct; and (3) the legislative purpose to exclude the justification claimed for the

conduct does not otherwise plainly appear. See § 9.22. To raise a necessity defense,

a defendant admits violating the statute under which he is charged and then offers

necessity as a justification which weighs against imposing a criminal punishment for the

acts which violated the statute. Young v. State, 991 S.W.2d 835, 838 (Tex. Crim. App.

1999). Admission of the violation of a statute includes every element including the

culpable mental state. Juarez, 308 S.W.3d at 409.


                                       ANALYSIS


      To be entitled to a defensive instruction pertaining to either self-defense or

necessity, Appellant had to reasonably believe his conduct was “immediately

necessary” to protect himself against a perceived threat of the use or attempted use of

unlawful force by Kevin. See § 9.31(a). A “reasonable belief” is one that would be held

by an ordinary and prudent person in the same circumstances as Appellant. Walters v.




                                            7
State, 247 S.W.3d 204, 213 (Tex. Crim. App. 2007).4 A necessity defense adds that the

conduct be immediately necessary to avoid “imminent” harm. “Imminent” has been

defined as ready to take place, near at hand; impending; mediate rather than

immediate; close rather than touching, on the point of happening; threatening;

menacing; perilous. Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989)

(citing various authorities including Black’s Law Dictionary 676 (5th ed. 1979)).


        As previously stated, in determining whether a defense issue has evidentiary

support, we review the evidence in the light most favorable to the defendant. Here,

Appellant had served in the military from 1997 until he was honorably discharged in

2005, after receiving various service medals. He attended Temple College with a goal

of obtaining a business management degree. He has a ten percent disability from his

work in the military and has been diagnosed with PTSD, depression, personality

disorder and alcohol dependency.


        Appellant testified that when he and Kimberly first separated, their relationship

was amicable but later became strained. He first encountered Kevin when returning his

son’s diaper bag and car seat after a period of visitation.                    Despite a few verbal

confrontations between them, they did not really know each other.


        As recited earlier, while Appellant was withholding possession of his son from

Kimberly, he received death threats by text messages and a phone call from a man

        4 Under certain circumstances not applicable here, an actor’s reasonable belief is presumed if the
actor is not otherwise engaged in certain criminal activity. See § 9.31(a)(3). The State argues that based
on the statute, Appellant was not entitled to a self-defense instruction because he was unlawfully carrying
a weapon in violation of section 46.02, a Class A misdemeanor. The State’s argument is incorrect.
Criminal activity eliminates a presumption of reasonableness; it does not extinguish the opportunity for a
self-defense instruction. See Villarreal v. State, No. PD-0332-13, __ S.W.3d __, 2015 Tex. Crim. App.
LEXIS 136, at *26-29 (Tex. Crim. App. Feb. 4, 2015) (concluding statutory presumption of
reasonableness inapplicable).
                                                       8
which he could not positively identify as Kevin. There was also an attempted break-in at

his apartment during the same time frame.


        When Appellant agreed to meet Kimberly, he conditioned the meeting on Kevin

not accompanying her.5          During trial, Appellant admitted he had consumed alcohol

before the meeting. He further testified he saw Kevin “creeping up” on him from the

corner of his eye. His testimony continued, “I was scared and I pulled a gun out.” He

then admitted threatening Appellant by saying: “back the fuck up because this ain’t got

nothing to do with you or somebody going to die tonight . . . .” After Kevin backed away,

Appellant discontinued his encounter with Kevin and again tried to get Kimberly’s keys

so she would not drive away with their son. It was then that Kevin jumped Appellant

from behind and the two struggled.


        Although Appellant’s girlfriend failed to show for trial, the patrol car videos played

for the jury show her arriving at the scene and being detained and placed in a patrol car

until the situation could be resolved. She is heard on the officer’s microphone stating

that when she arrived, Kevin had a hold of Appellant from behind and Kevin had the

gun. The officer questioned her story as being uncorroborated because other witnesses

had named Appellant as the person holding the gun.


        Upon realizing that Kevin was being released and he was being arrested,

Appellant became upset and agitated.               He yelled profanities and accused Kevin of


        5  The State argues that Appellant was not entitled to a self-defense instruction because use of
force is not justified under section 9.31(b)(5) when the actor is carrying a weapon in violation of section
46.05 and he seeks an explanation from or discussion with the other person about their differences. In its
brief, the State asserts Appellant knew Kevin would be at the meeting. The testimony, however, shows
that Kimberly agreed to Appellant’s condition that Kevin not attend the meeting. There is no support in
the record for the State’s contention that Appellant knew Kevin would be at the meeting or that Appellant
“sought an explanation from or discussion with” Kevin concerning their differences.
                                                      9
attacking him. He was also angry that his son, whom he believed at that time was being

neglected, was being taken from him.


       The officer who interviewed Kevin believed his version of events and relayed that

to the other officer. The second officer asked who started the fight and questioned

whether Kevin should be charged with disorderly conduct for his part in the scuffle. The

first officer discounted the idea of charging Kevin with the following explanation: “when

someone pushes on your old lady you gonna stand there and say no, cut it out?” As a

result, Kevin was never charged with any offense arising out of the incident.


       An eyewitness who was walking to his truck at the time observed Kevin arrive in

the parking lot and get out of his car. He described Kevin as sprinting across the

parking lot. Kevin’s “sprinting” must have appeared menacing because the witness

anticipated a fight was about to occur. Before any confrontation between Appellant and

Kevin started, he got into his truck and began honking his horn to get everyone’s

attention in hopes of averting a fight.


       Evidence which raises a defensive issue, regardless of its strength or source,

justifies the submission of an instruction as to that defense. Juarez, 308 S.W.3d at 404-

05. Even a minimum quantity of evidence is sufficient if the evidence presented would

support an affirmative finding pertaining to that defense by a rational jury. Shaw, 243

S.W.3d at 657-58.         Here, Appellant has a much smaller stature than Kevin.6            He

testified he pulled his gun because he was scared. He admitted to threatening Kevin




       6   The officer who detained and handcuffed Kevin commented he had “big old hands.”

                                                  10
and stating “somebody going to die tonight.”7 Given his strained relationship with his

former girlfriend, his past encounters with Kevin, prior death threats, and the attempted

break-in of his residence, it is not inconceivable that, at the time of the incident,

Appellant reasonably believed Kevin’s conduct posed an “imminent” threat to him.

Furthermore, Kevin surprised Appellant by showing up for a meeting when he had been

specifically asked to stay away.            Therefore, it is reasonable to conceive Appellant

believed use of force was immediately necessary to protect himself when he was

confronted by Kevin. Given Appellant’s testimony, his girlfriend’s comments recorded

on the patrol car video, the relative stature of each party, and the eyewitness’s account

concerning Kevin’s “sprinting” across the parking lot, we believe a rational juror could

have found Appellant reasonably believed harm was imminent and the use of force was

reasonably necessary to protect himself from Kevin’s use of force against him. Viewing

the evidence in the light most favorable to Appellant, we conclude the record supports

Appellant’s request for the submission of both defensive instructions. Accordingly, the

trial court abused its discretion by denying the requested instructions. Finding error in

the court’s charge, we proceed to a harm analysis.


                                  HARM ANALYSIS UNDER ALMANZA


        When, as here, a defendant objects to the charge at trial, he will obtain relief if

the record shows he suffered “some harm.” Reeves, 420 S.W.3d at 816. A reviewing

court is required to consider the following: (1) the jury charge as a whole, (2) the

arguments of counsel, (3) the entirety of the evidence and (4) other relevant factors


          7 The State urges that Appellant did not admit he violated a statute because he later testified he

“didn’t feel like [he] assaulted anybody.” This testimony merely presents a credibility issue because other
evidence supports a finding that Appellant admitted each element of the offense.
                                                      11
present in the record. Id. This less-stringent standard still requires the reviewing court

to find the defendant “suffered some actual, rather than merely theoretical, harm from

the error.” Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012); Warner v.

State, 245 S.W.3d 458, 462 (Tex. Crim. App. 2008).


       (1) ENTIRE JURY CHARGE


       In the underlying case, the charge contains an abstract as well as an application

section. It sets forth and defines the elements for aggravated assault and also instructs

the jury on the lesser-included offense of assault by threat.      It does not, however,

contain any defensive instructions, which we have concluded were raised by the

evidence. The jury was not given the opportunity to decide the relative credibility of

Appellant’s defensive theories and whether to reject or apply them in this case.

Therefore, we find the charge as presented to the jury weighs heavily in favor of finding

that Appellant was harmed.


       (2) ARGUMENTS OF COUNSEL


       During its opening argument, the State explained the evidence would show that

Appellant and Kimberly fought over possession of their son and Kevin intervened. The

argument continued, “[Kevin] grabs the defendant to stop this physical tug of war . . . the

defendant pulls a gun, points it at him and says you’re going to die tonight.” The State

referred the jury to patrol car videos that would be presented and asked it to assess the

credibility of the parties involved to determine what occurred that night.          When

presented, the patrol car video showed Appellant becoming upset, yelling profanities,

and being in an agitated mood when he realized that Kevin was being released and he

                                            12
was being arrested. The State wanted the jury to believe that Appellant’s state of mind

implicated him as the aggressor.      However, Appellant testified he was upset and

agitated because his son, whom he believed was being neglected, was being taken

from him.


       Closing arguments are not particularly informative—Appellant was denied

defensive instructions during the charge conference so arguments did not reference

self-defense or necessity. The State emphasized the offense of aggravated assault as

opposed to the lesser offense of assault by threat and reminded the jury that Appellant

admitted he exhibited a deadly weapon. Without any defensive instructions, defense

counsel had no choice but to argue that Appellant did not intend to commit aggravated

assault notwithstanding Appellant’s admission of the offense during his trial testimony.

Therefore, overall, counsel’s arguments at trial weigh in favor of finding that Appellant

suffered some harm.


       (3) ENTIRETY OF THE EVIDENCE


       Self-defense and necessity were contested issues.          Appellant testified he

committed aggravated assault. He testified to his history with his former girlfriend and

expressed his concern regarding his son’s well-being.          Even Kevin’s testimony

confirmed that concern.    Additionally, a disinterested third-party eyewitness sensed a

confrontation was imminent based solely upon Kevin’s demeanor when he arrived at the

parking lot.   Finally, Appellant’s and his girlfriend’s testimony, credible or not, were

alone sufficient to raise these defensive issues. Depriving Appellant of a defensive

instruction and the opportunity for the jury to evaluate the credibility of his defensive

theories weighs heavily in favor of a finding of some harm.
                                            13
      (4) OTHER RELEVANT EVIDENCE


      Appellant claims that interviews conducted at the scene determined his fate

without being given an opportunity to explain his conduct. He testified he was visibly

upset and agitated in the patrol car video, not because he was an aggressive individual,

but because his son was being taken from him. Kevin, on the other hand, was released

without any culpability notwithstanding the fact that one officer questioned whether he

should have been charged with disorderly conduct.


      In sum, Appellant’s rights were violated by being denied the opportunity to have

the jury consider the credibility of a defensive issue, a vital aspect of his case. Cf.

Villarreal, 2015 Tex. Crim. App. LEXIS 136, at *29-31 (deciding that the appellant was

not egregiously harmed by omission of one of two alternative defenses).             After

evaluating the Almanza factors under the less-stringent standard of “some harm,” we

find that the record supports Appellant’s contention that he was harmed by the trial

court’s refusal to include these defensive instructions in the charge. Issues one and two

are sustained.


                                      CONCLUSION


      The trial court’s judgment is reversed and the cause is remanded for further

proceedings.


                                                Patrick A. Pirtle
                                                    Justice


Do not publish.


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