Opinion filed November 30, 2015




                                        In The


        Eleventh Court of Appeals
                                     __________

                               No. 11-13-00361-CR
                                     __________

                 CECIL WELDON HOLLAND, Appellant
                               V.
                   THE STATE OF TEXAS, Appellee

                     On Appeal from the 104th District Court
                             Taylor County, Texas
                         Trial Court Cause No. 18199B

                                    OPINION
      Cecil Weldon Holland appeals his jury conviction for aggravated assault with
a deadly weapon. The jury assessed Appellant’s punishment at confinement in the
Institutional Division of the Texas Department of Criminal Justice for a term of
forty-eight years. In four issues on appeal, Appellant asserts that the trial court erred
when it refused his requests for a charge on a lesser included offense and various
defensive instructions. We reverse and remand for a new trial.
                                  Background Facts
      On April 23, 2011, Appellant attended a barbecue at a friend’s house in
Abilene. Clifton Burnett, a neighbor, just showed up at the barbecue. He appeared
to be intoxicated and was asked to leave by the homeowner. Burnett left the house,
only to return later with his fiancée, Rochelle Lawrence. A verbal altercation then
ensued between Jacky Davenport, a guest at the barbecue, and Burnett and
Lawrence. Davenport lived next door to the host of the barbecue and was eight
month’s pregnant at the time of the altercation.       As the argument escalated,
Davenport apparently retreated to her yard.       Burnett and Lawrence followed
Davenport into her yard where the altercation continued. Davenport purportedly
slapped Lawrence, which Appellant asserted that he did not see. Appellant testified
that he then saw Davenport fall to the ground, clutching her stomach and screaming
in anguish.
      Appellant testified that he believed Davenport had been struck and that he
feared for the life of Davenport and her unborn child. Appellant also testified that
Burnett continued to yell at Davenport while she was on the ground. Claiming that
he feared for the life of Davenport and her unborn child, Appellant attacked Burnett
with a small knife, cutting his throat. Burnett testified that, due to the cut to his
throat, he spent nine days in the hospital, underwent numerous surgeries, and lost
30% of his memory. He further testified that he has trouble breathing, sustained
nerve damage to his throat, and will require at least one more surgery.
      Appellant was charged with aggravated assault with a deadly weapon in a
two-paragraph indictment. The jury convicted him of the offense as it was alleged
in Paragraph One of the indictment. Specifically, Appellant was found guilty of
intentionally or knowingly using a deadly weapon—a knife—that in the manner of
its use and intended use was capable of causing death or serious bodily injury, and
intentionally or knowingly causing bodily injury to Burnett by cutting him on or
about the throat with the knife.




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                                        Analysis
      In Appellant’s second issue, he contends that the trial court erred when it
refused his requested instruction on the defense of Davenport’s unborn child. See
TEX. PENAL CODE ANN. § 9.33 (West 2011). Appellant requested multiple jury
instructions on defensive issues, including separate instructions for the defense of
third persons pertaining to both Davenport and her unborn child. Over the State’s
objection, the trial court included an instruction for the defense of Davenport.
However, the trial court denied Appellant’s requested instruction for the defense of
the unborn child. In announcing its ruling, the trial court advised the parties that it
believed that the instruction for the defense of Davenport “would apply both to Jacky
Davenport and to her unborn child.” However, the trial court further advised
Appellant’s trial counsel that “this charge doesn’t have anything to do with the
unborn child” and that “if you start to make some legal arguments regarding the
unborn child, and [the prosecutor] objects, then I’m likely to sustain his objection.”
      We review a complaint of jury-charge error under a two-step process,
considering first whether error exists. See Ngo v. State, 175 S.W.3d 738, 743 (Tex.
Crim. App. 2005). If error does exist, we then analyze that error for harm under the
procedural framework of Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985).
      The trial court is required to “deliver to the jury . . . a written charge distinctly
setting forth the law applicable to the case [and] not expressing any opinion as to the
weight of the evidence.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). The
trial court must give a requested instruction on every defensive issue that is raised
by the evidence. See Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. Crim. App.
2013). A defensive issue is raised by the evidence if there is some evidence,
regardless of its source, on each element of a defense that, if believed by the jury,
would support a rational inference that the element is true. See Shaw v. State, 243
S.W.3d 647, 657–58 (Tex. Crim. App. 2007). When deciding whether a defensive
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issue has been raised by the evidence, a court must rely on its own judgment, formed
in light of its own common sense and experience, as to the limits of rational inference
from the facts that have been proven. Id. at 658. The defendant is entitled to an
instruction on a defense when there is legally sufficient evidence to raise the defense,
regardless of whether the evidence supporting the defense is weak or contradicted
and even if the trial court is of the opinion that the evidence is not credible. Id.
Whether the record contains such evidence is a question of law, which means that
we do not apply the usual rule of appellate deference to the trial court’s ruling. Id.
“Quite the reverse, we view the evidence in the light most favorable to the
defendant’s requested submission.” Bufkin v. State, 207 S.W.3d 779, 782 (Tex.
Crim. App. 2006).
      Section 9.33 of the Penal Code provides:
            A person is justified in using force or deadly force against
      another to protect a third person if:
                    (1) under the circumstances as the actor reasonably
             believes them to be, the actor would be justified under
             Section 9.31 or 9.32 in using force or deadly force to
             protect himself against the unlawful force or unlawful
             deadly force he reasonably believes to be threatening the
             third person he seeks to protect; and
                    (2) the actor reasonably believes that his interven-
             tion is immediately necessary to protect the third person.
The focus of the defense-of-third-person defense is upon what the actor reasonably
believes concerning the situation of the third person. Morales v. State, 357 S.W.3d
1, 8 (Tex. Crim. App. 2011).
      The State initially contends that Appellant failed to request an instruction for
the defense of the unborn child. In advancing this argument, the State directs our
attention to an earlier portion of the charge conference wherein Appellant’s trial
counsel submitted a general instruction on the defense of a third person without

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specifying the unborn child as one of the “third persons” that he sought to protect.
However, Appellant’s trial counsel subsequently apprised the trial court that he was
specifically requesting an instruction for the defense of the unborn child when he
stated:
             Your Honor, I will -- I’d like to clarify. I submitted two written
      requests for instructions, and one of them is defense of a third person,
      and I want to be certain that the record reflects that what I mean by that,
      although there’s one motion filed, there’s a request for -- of included
      instruction that -- I mean, defense of third person, Jacky Davenport, and
      defense of another third person, that person being Eddie Crippen, the
      unborn child of Jacky Davenport . . . .
Accordingly, the record reflects that Appellant requested an instruction on the
defense of Davenport’s unborn child.
      The State additionally contends that there was no evidence requiring the
submission of an instruction for the defense of a third person with respect to the
unborn child. Specifically, the State asserts that “[n]o evidence shows that Burnett
was using any force or deadly force to meet the statutory requirement of defense of
the unborn child.” The State is essentially asserting that Appellant was not entitled
to an instruction for the defense of either Davenport or the unborn child. We
disagree.
      Davenport fell to the ground during the altercation. Lawrence acknowledged
that she may have kicked Davenport in the stomach while she was on the ground.
When asked at trial whether he believed that Davenport and her unborn child would
suffer further serious bodily injury or death if he did not intervene in the manner that
he did, Appellant replied: “Sure, I did. Sure, I did. Because the two people . . .
weren’t backing off” (emphasis added). The fact that Burnett was not the one who
kicked Davenport does not preclude the possibility that Appellant sought to defend
her from an attack by Burnett. “When there is evidence, viewed from the accused’s
standpoint, that he was in danger of an unlawful attack or a threatened attack at the
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hands of more than one assailant, the court should instruct the jury that he had a right
to defend himself against either or both of them.” Wilson v. State, 145 S.W.2d 890,
893 (Tex. Crim. App. 1940). We see no reason why this same logic would not apply
to the defense of a third person that is the subject of an attack by multiple assailants.
If Appellant reasonably believed cutting Burnett’s throat was immediately necessary
to protect Davenport and her unborn child from both Lawrence and Burnett, then
the evidence raised the issue of defense of a third person. See id.; see also Frank v.
State, 688 S.W.2d 863, 868 (Tex. Crim. App. 1985); Sanders v. State, 632 S.W.2d
346, 348 (Tex. Crim. App. [Panel Op.] 1982); Dugar v. State, 464 S.W.3d 811, 817
(Tex. App.—Houston [14th Dist.] 2015, pet. ref’d).
      Lying at the heart of Appellant’s second issue is the question of whether or
not he was entitled to an additional instruction for the defense of the unborn child
after the trial court gave an instruction for the defense of the pregnant mother. The
resolution of this question is critical to our determination of error on the part of the
trial court. As noted above, Section 9.33 applies to the defense of a “third person.”
Under the Penal Code, “person” means “an individual, corporation, or association.”
PENAL § 1.07(a)(38) (West Supp. 2015). As the result of a 2003 amendment, the
Penal Code now defines an “individual” as “a human being who is alive, including
an unborn child at every stage of gestation from fertilization until birth.” Id.
§ 1.07(a)(26). In reliance upon this definition of an “individual,” the Texas Court of
Criminal Appeals determined that an unborn child is an individual, and thus a
person, with respect to the capital murder statute. Lawrence v. State, 240 S.W.3d
912, 915 (Tex. Crim. App. 2007); see PENAL § 19.03(a)(7)(A). Thus, a person that
murders a pregnant mother and her unborn child commits two murders. Lawrence,
240 S.W.3d at 915. We conclude that this same reasoning applies in the context of
the defense of third persons as set out in Section 9.33. If Appellant believed that
attacking Burnett was immediately necessary to protect Davenport’s unborn child
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from unlawful force, then Appellant would be entitled to an instruction on defense
of a third person for the unborn child. Accordingly, the trial court should have
included an instruction for the defense of the unborn child in addition to the
instruction for the defense of Davenport.
       Finding that the trial court erred, we now determine whether the error was
harmful. Since Appellant requested the instruction for the defense of the unborn
child, reversal is required if the error is “calculated to injure the rights of defendant,”
which means no more than that there must be some harm to the accused from the
error. Almanza, 686 S.W.2d at 171. “[T]he actual degree of harm must be assayed
in light of the entire jury charge, the state of the evidence, including the contested
issues and weight of probative evidence, the argument of counsel and any other
relevant information revealed by the record of the trial as a whole.” Ovalle v. State,
13 S.W.3d 774, 786 (Tex. Crim. App. 2000) (quoting Almanza, 686 S.W.2d at 171).
       The State asserts that, “[s]ince the jury rejected the defense of a third person
with regard to Davenport, it is not rational that the jury would find that a defense of
the unborn child would have been a reasonable alternative, especially when the
evidence showed no harm resulted in [sic] the unborn child.” We disagree with the
State’s contention that the jury’s rejection of the defense of a third person pertaining
to Davenport provides us with an assurance that Appellant suffered no harm by the
omission of an instruction regarding the defense of the unborn child.
       The application portion of the jury charge regarding the defense of a third
person stated as follows:
       Defense Of A Third Person
              Now, notwithstanding the foregoing, if you find from the
       evidence beyond a reasonable doubt that on or about the 23 rd day of
       April, 2011, in Taylor County, Texas, the defendant, Cecil Weldon
       Holland, did intentionally or knowingly use a deadly weapon, to wit: a
       knife, and caused bodily injury or serious bodily injury, to Clifton Jamal
       Burnett by cutting the said Clifton Jamall Burnett on or about the throat
                                            7
      with said deadly weapon, but you further find from the evidence, or you
      have a reasonable doubt thereof, that at the time Jacky Davenport was
      under attack or attempted attack from Clifton Jamall Burnett, that the
      defendant reasonably believed, as viewed from his standpoint, that such
      force as he used, if any, was immediately necessary to protect Jacky
      Davenport against such attack or attempted attack, and that, under the
      circumstances as Cecil Weldon Holland reasonably believed them to
      be, Jacky Davenport would be entitled to defend herself against this
      unlawful force, and so believing, he cut Clifton Jamall Burnett on or
      about the throat with a knife, then you will find the defendant “not
      guilty” of both paragraphs in the indictment.
(Emphasis added). Thus, the jury charge conditioned Appellant’s reliance on the
defense of Davenport upon his belief that she would have been entitled to defend
herself against Burnett’s and Lawrence’s attack. The jury received evidence that
Davenport slapped Lawrence, provoking Lawrence to kick Davenport in the
stomach. Under the provisions of the jury charge, this evidence may have convinced
the jury that Appellant’s reliance on the defense of Davenport was not justified if he
believed that she provoked the attack. In this regard, the prosecutor argued during
closing argument that Davenport was a “provocateur” that would not be entitled to
rely on self-defense in repelling the attack but, rather, had a duty to retreat.
Conversely, logic dictates that an unborn child could not have provoked an attack.
      We conclude that Appellant suffered “some harm” from the omission of an
instruction on the defense of the unborn child because the matters of provocation
and a duty to retreat that may have been attributed to the pregnant mother would not
be attributable to the unborn child. Furthermore, the jury might have determined
that greater force was necessary to protect the unborn child than was necessary to
protect the pregnant mother. The absence of a separate instruction for the defense
of the unborn child precluded the jury from reaching this determination.
Accordingly, we sustain Appellant’s second issue.         We need not address the
remaining issues. TEX. R. APP. P. 47.1.

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                                   This Court’s Ruling
         We reverse the judgment of the trial court and remand the cause for a new
trial.


                                                     JOHN M. BAILEY
                                                     JUSTICE


November 30, 2015
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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