                              Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION

                                        No. 04-18-00295-CR

                                          Michael FANT,
                                            Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the 290th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2018CR1422
                           Honorable Melisa C. Skinner, Judge Presiding

Opinion by:      Rebeca C. Martinez, Justice

Sitting:         Sandee Bryan Marion, Chief Justice
                 Rebeca C. Martinez, Justice
                 Irene Rios, Justice

Delivered and Filed: February 13, 2019

AFFIRMED

           Michael Fant was convicted by a jury of murder and sentenced to eighteen years’

imprisonment. The sole issue presented on appeal is whether the trial court erred in including an

instruction on provoking the difficulty in the jury charge. We affirm the trial court’s judgment.

                                           BACKGROUND

           Viewing the evidence in the light most favorable to the jury charge, Mya’ne Wright,

Sham’pagne Jackson, Sherika Strother, Jonathan Rankin, and the victim, Damariae Harrison, were

at Jackson’s apartment when Fant arrived and began to loudly demand to see Wright, who he
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referred to as his daughter. Wright testified Fant was not her father but was married to her

stepmother when she was about ten. Although Wright lived with her stepmother and Fant at some

point, Wright testified it was a long time ago.

       Fant was intoxicated, and Wright did not want to speak to him. Rankin went outside, and

Fant continued to loudly demand that Wright leave with him. At some point, Jackson, Strother,

Rankin, and Harrison decided to walk Wright back to the apartment where she was staying in the

same complex. Fant either followed them or encountered them during the walk, and the decision

was made to return to Jackson’s apartment instead. At that point, Fant left for about twenty or

thirty minutes before reappearing at Jackson’s apartment and continuing to loudly demand that

Wright leave with him. Fant ignored all requests for him to leave.

       Jackson testified that Fant then walked up to where Harrison was sitting on a chair outside

the apartment and “was like, What are you going to do?” When Harrison stood up, Fant pushed

him. In response, Harrison punched Fant, and the two men continued to punch each other. After

a short time, Rankin also jumped into the fight. Jackson testified she did not see any weapons, but

after Fant ran away, Harrison raised up his shirt, and she could see blood where he had been

stabbed.

       Wright testified she saw Fant push Harrison before Harrison hit Fant and the two men

started fighting. The two men fell to the ground, and Rankin started fighting Fant when Fant stood

up. Harrison also stood up, and Fant ran away when they went to assist Harrison who had been

stabbed.

       Strother testified that after Fant returned to Jackson’s apartment, he started antagonizing

Harrison by calling him a little boy and stating Harrison could not do anything to him because he

was a grown man. After Fant walked up to Harrison and pushed him, Harrison punched him, and

the two men began fighting. Strother saw Fant with a knife and saw him stab Harrison.


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       Rankin testified Fant reappeared while they were walking Wright back to her apartment,

and he began arguing with Harrison. Rankin intervened and told Fant he was not going to allow

him to fight Harrison who was much younger and smaller. Fant said, “All right, that’s how you

all want to do it,” and turned and walked away. When Fant returned to Jackson’s apartment about

thirty minutes later, Rankin saw Fant’s hands were in his pockets, and he continued to demand to

see Wright. While Harrison and Rankin were arguing with Fant, Fant made a statement that

Rankin believed was an indication that he wanted to fight. After Fant pushed Harrison, Harrison

hit him, and the two men started fighting. Rankin stated he intervened when Fant tried to grab

Harrison to pick him up and slam him on the ground. As Rankin and Harrison were hitting Fant,

Rankin saw Fant reach in his pocket and pull out a box cutter or switch blade which he swung in

the direction of Harrison.

       Fant fled the scene but was arrested a short time later. A crime scene investigator was

dispatched to take photographs of Fant after he was arrested. The photographs were admitted into

evidence. The only visible injury to Fant depicted in the photographs was an injury to his lip.

       The medical examiner testified Harrison was nineteen years old, five feet five inches tall,

and weighed approximately 140 pounds. Harrison sustained stab wounds across his chest, on his

left hip, and on his left back. He also sustained a two-inch deep stab wound on his left chest which

entered his chest cavity, cutting his heart and left lung. Finally, Harrison sustained cuts or incise

wounds on his left back and near his right wrist. Harrison died as a result of the stab wounds.

Photographs from the crime scene were admitted into evidence depicting the severity of Harrison’s

stab wounds.




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                         STANDARD OF REVIEW AND APPLICABLE LAW

        In analyzing a jury-charge issue, we first decide whether error exists. Ngo v. State, 175

S.W.3d 738, 743 (Tex. Crim. App. 2005). “Then, if we find error, we analyze that error for harm.”

Id.

        “A defendant is entitled to an instruction on self-defense if the issue is raised by the

evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of

what the trial court may think about the credibility of the defense.” Elizondo v. State, 487 S.W.3d

185, 196 (Tex. Crim. App. 2016) (internal quotation omitted). “However, a defendant may forfeit

his right to self-defense if he provokes the attack.” Id. “‘The rule of law is that if the defendant

provoked another to make an attack on him, so that the defendant would have a pretext for killing

the other under the guise of self-defense, the defendant forfeits his right of self-defense.’” Id.

(quoting Smith v. State, 965 S.W.2d 509, 512 (Tex. Crim. App. 1998)).

        A charge on provocation is required when there is sufficient evidence from which a rational

jury could find each of the following elements of provocation beyond a reasonable doubt:

        (1) that the defendant did some act or used some words that provoked the attack on
        him,

        (2) that such act or words were reasonably calculated to provoke the attack, and

        (3) that the act was done or the words were used for the purpose and with the intent
        that the defendant would have a pretext for inflicting harm upon the other.

Id. at 197 (citing Smith, 965 S.W.2d at 513). In reviewing whether the trial court erred in including

a charge on provoking the difficulty, an appellate court “‘asks if there was sufficient evidence from

which a rational jury could have found provocation beyond a reasonable doubt, viewing the

evidence in the light most favorable to giving the instruction.’” Id. (quoting Smith, 965 S.W.2d at

514).




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                                           DISCUSSION

       With regard to the first element, “there must be some evidence from which a rational jury

could find beyond a reasonable doubt that some act or words of the defendant actually caused the

attack on him.” Id. at 199. In this case, Strother testified Fant was antagonizing Harrison, and

Jackson and Rankin testified Fant approached Harrison indicating he intended to fight with him.

All of the witnesses then testified that Fant pushed Harrison. From this testimony, a jury could

find beyond a reasonable doubt that Fant’s acts or words caused Harrison to start fighting with

him.

       With regard to the second element, “the defendant’s actions or words [must be] reasonably

calculated to provoke the attack” because they had “‘a reasonable tendency to cause an attack.’”

Id. (quoting Smith, 985 S.W.2d at 517). Based on the testimony that Fant antagonized and pushed

Harrison at a time when Fant had repeatedly been asked to leave, the jury could find beyond a

reasonable doubt that Fant’s acts or words were reasonably calculated to provoke Harrison to fight.

       With regard to the third element, evidence must have been presented from which a rational

jury could find beyond a reasonable doubt that Fant “possessed an intent to provoke so he would

have a pretext to harm [Harrison] under the guise of self-defense.” Id. at 201. “A defendant’s

intentions can be determined from his words, acts, and conduct, occurring before, during, or after

the provocation.” Id. The defendant’s “prior acts can also give character to what he said or did at

the time of the homicide.” Id. at 202. The evidence must imply “a certain craftiness or design”

such that the defendant “orchestrated” the events “as a ploy.” Smith, 965 S.W.2d at 518.

       In this case, the evidence established Fant was angry that Wright refused to leave with him,

and the jury could infer that he was angry at Harrison and the others for supporting her decision.

Rankin testified Fant already appeared to want to fight with Harrison when they tried to walk

Wright back to her apartment. The jury could have inferred Fant left the apartment area and


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retrieved the knife or weapon he used to stab Harrison and concealed the weapon on his return to

Jackson’s apartment. Fant then continued to antagonize Harrison and pushed him in order to

provoke him into a fight before stabbing him multiple times. Therefore, the evidence, taken as a

whole, could lead a rational jury to find beyond a reasonable doubt that Fant had the necessary

intent to provoke Harrison so Fant would have a pretext to harm him.

       Viewing the evidence in the light most favorable to giving the charge, we hold the trial

court did not err because there was sufficient evidence from which a rational jury could have found

all three elements of provocation beyond a reasonable doubt.

                                          CONCLUSION

       The trial court’s judgment is affirmed.

                                                  Rebeca C. Martinez, Justice

DO NOT PUBLISH




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