Affirmed; Opinion Filed June 23, 2015.




                                               In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-13-01479-CR

                       ZACHARIAH ARTHUR WILLIAMS, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 3
                                   Dallas County, Texas
                            Trial Court Cause No. F13-53277-J

                              MEMORANDUM OPINION
                            Before Justices Myers, Evans, and Brown
                                    Opinion by Justice Evans
       Zachariah Arthur Williams appeals his conviction for aggravated assault. In two issues,

he complains the evidence is insufficient to support the conviction and the trial court erred when

it failed to instruct the jury on the presumption of reasonableness as it related to his self-defense

claim. We affirm the trial court’s judgment.

                                           BACKGROUND

         The events leading up to appellant’s arrest occurred during the early morning hours of

March 7, 2013 at a Dallas truck stop near Interstate 20. At trial, a truck driver who witnessed the

events testified that he was sleeping in his truck a little after midnight when he was awakened by

what he described “like a metal pipe hitting the ground.” He looked outside and saw “one man

beating the snot out of another man.” According to the truck driver, one man was on the ground
and the other man was above him, on his knees, using his bodyweight to add more leverage to

his blows as he beat the man on the ground. The man on the ground was not moving. “It wasn’t

a normal one guy hitting another guy to defend him off or put him down. This guy was meaning

to do some serious damage.” The truck driver never saw the man on the ground move and saw a

lot of blood. He never saw a weapon or identified what caused the metal clanking he heard. He

called 9-1-1.

       A patrol officer responding to the scene testified that when he arrived, he saw a person on

the ground in front of an 18-wheeler with blood around him. The victim was disoriented, in

pain, and his face was bloody and swollen. The victim was bleeding from the mouth and the

officer saw teeth on the ground. There was also blood on the truck bumper. The officer

interviewed Karen Jackson, a witness at the scene whom he knew from previous contacts was a

prostitute. The officer noted prostitutes will sometimes work with others at a truck stop to rob

truckers and he viewed Jackson initially as a potential suspect. Based on his investigation, the

officer obtained a physical description of a suspect and that he was wearing khaki overalls. The

officer also retrieved a duffle bag from the dumpster area containing two other bags.

       A police sergeant driving to the scene saw an individual fitting the suspect description

walking northbound on Lancaster just south of Interstate 20.            There was blood on the

individual’s coveralls and he kept putting his hands in the pockets as if trying to conceal

something. The sergeant stopped the man who was later identified as appellant and discovered a

small aluminum bat in his pant leg. The bat was the type used by truckers to check tire inflation.

Appellant also possessed gold cufflinks, a tie clip, cigarettes, and a lighter. The sergeant noticed

appellant had a bump on his head above his left eye. Appellant admitted to the sergeant that he

was involved in the fight stating, “Yeah, I hit him but he – he pulled the bat on me, and I took it

away from him.” Appellant further indicated, “Then I took my aggression out on him.” A

                                                –2–
crime scene investigator testified that he took photos of the crime scene, the victim and

appellant. Among other things, he noted the bat had no visible blood on it.

          The detective assigned to investigate the case interviewed appellant. After receiving his

Miranda1 warnings, appellant stated that the victim hit him on the head with the bat, but that he

got the bat away from the victim. Appellant denied using the bat on the victim. The detective

also saw the victim at the hospital. The victim had extensive facial injuries and could not be

interviewed.2

          Jackson also testified at trial. She indicated that appellant, whom she did not know until

that night, took her to the victim and she got into the cab of the victim’s truck. Appellant

approached the truck and, according to Jackson, requested five dollars for finding and bringing

Jackson to him. When the victim refused, appellant told the victim, “That’s all right because I

put your tires on flat. . . . You got to buy you some more tires.” After the victim gave Jackson

some dinner money she left the truck while the victim was still sitting in the truck and went to

the Texaco. As she returned to the victim’s truck, she passed appellant who told her the victim

jumped out and started hitting him with a bat. Appellant showed her the bat and was also

carrying a black bag. Appellant was headed towards a dumpster. Jackson looked for the victim

inside the truck and did not find him. She discovered the victim lying outside the passenger side

of his truck after she heard him call for help. She saw the victim covered in blood and ran

towards some police cars yelling for help and pointing to the location of the victim.

          The victim testified that he did not remember much from the night he was beaten. He

awoke in the hospital several weeks after the incident. He lost teeth, his face was rebuilt, and he

continues to have blurry eyesight, memory loss, torn rotator cuff, and numbness in his head and

   1
       See Miranda v. Arizona, 384 U.S. 436 (1966).
   2
       A later attempt to interview the victim revealed he could not recall that night’s events.


                                                           –3–
face. Because of the beating, he can no longer drive trucks. He identified the tie clip and

cufflinks found on appellant the night of the incident as his. The victim’s sister, with whom he

was living, also testified as to the victim’s extensive injuries. Appellant did not testify at trial.

        The trial court sua sponte instructed the jury on the law of self-defense including the use

of deadly force, and the law relating to whether appellant had the duty to retreat. See TEX.

PENAL CODE ANN. § 9.32(a) and (c) (West 2011). However, the trial court’s charge did not

include an instruction pursuant to section 9.32(b) which creates a presumption that the actor’s

belief that deadly force was immediately necessary was reasonable if certain criteria are met.

See TEX. PENAL CODE ANN. § 9.32(b). Appellant did not request or object to the absence of an

instruction on the presumption of reasonableness. The jury found appellant guilty of aggravated

assault. This appeal followed.

                                              ANALYSIS

A.      Presumption of Reasonableness

        In his second issue, appellant contends the trial court erred by failing to instruct the jury

on the presumption of reasonableness and argues he suffered egregious harm as a result of the

error. In reviewing jury charge complaints, we generally determine whether the charge is

erroneous and then analyze whether the error caused appellant harm sufficient to warrant

reversal. See Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). Where, as here, the

alleged error was not properly preserved in the trial court, reversal is only proper if the error was

fundamental in the sense that it was so egregious and created such harm that appellant was

deprived of a fair and impartial trial. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

App. 1985) (op. on reh’g).

        A statutory presumption favoring the defendant must be submitted to the jury “if there is

sufficient evidence of the facts that give rise to the presumption . . . unless the court is satisfied

                                                  –4–
that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the

presumed fact.” TEX. PENAL CODE ANN. § 2.05(b)(1) (West 2011); Morales v. State, 357

S.W.3d 1,7 (Tex. Crim. App. 2011). As relevant here, the presumption of reasonableness applies

unless the State proved beyond a reasonable doubt at least one of the following: (1) appellant

neither knew or had reason to believe that the victim was committing or attempting to commit

aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery or aggravated

robbery, (2) appellant provoked the victim, or (3) at the time the deadly force was used, appellant

was engaged in criminal activity other that a class C misdemeanor that is a violation of a law or

ordinance regulating traffic. TEX. PENAL CODE ANN. § 9.32(b); Villarreal v. State, 453 S.W.3d

429, 435 (Tex. Crim. App. 2015).

           In his brief, appellant relies heavily on the court of appeals’s opinion in Villarreal to

support his position that failure to include an instruction on the statutory presumption in the jury

charge was error that resulted in egregious harm. Villarreal, 393 S.W.3d 867 (Tex. App.—San

Antonio 2012) reversed, 453 S.W.3d 429.3 In Villarreal, the San Antonio court reversed the

defendant’s murder conviction concluding that (1) the jury should have been instructed on the

presumption of reasonableness, and (2) the defendant was egregiously harmed by the trial court’s

failure to do so. Id. at 874–76. Assuming without deciding the trial court erred in failing to

instruct the jury on the statutory presumption, the court of criminal appeals reversed the court of

appeals concluding that the defendant was not egregiously harmed by the omission. Villarreal,

453 S.W.3d 443.

       We need not decide whether the trial court’s failure to instruct on the presumption of

reasonableness was error because we conclude appellant has not suffered egregious harm. As

the court of criminal appeals noted in Villarreal, “[e]gregious harm is a ‘high and difficult

   3
       Appellant filed his brief before the court of criminal appeals issued its opinion in Villarreal.



                                                                        –5–
standard’ to meet and . . . must be ‘borne out by the trial record.’” Villarreal, 453 S.W.3d at 433

(quoting Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). A conviction will not be

reversed unless the defendant suffered actual as opposed to theoretical harm. Id. In order to

determine whether appellant has suffered egregious harm we consider the entire jury charge, the

state of the evidence, including the contested issues and weight of probative evidence, the

arguments of counsel, and any other relevant information revealed by the trial record as a whole.

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

       1. Entire Jury Charge

       In addition to the trial court’s abstract charges on aggravated robbery, aggravated assault,

and theft, as well as application paragraphs related to those charges, the trial court sua sponte

included a charge on self-defense. The self-defense charge correctly informed the jury on the

general law of self-defense including when the use of force and deadly force is justified under

sections 9.31(a) and 9.32(a) of the penal code, the meaning of “reasonable belief,” and that

verbal provocation alone is insufficient to justify the use of force. The trial court also instructed

the jury on the law with respect to no-duty-to-retreat pursuant to penal code sections 9.31(e) and

9.32(c).   The jury charge, however, did not include an instruction on the presumption of

reasonableness regarding appellant’s purported belief that the use of deadly force was

immediately necessary. See id. at 9.32(b). Nevertheless, had the omitted instruction been given,

it would have allowed the jury to disregard the presumption of reasonableness if it concluded

that (1) appellant had no reason to believe the victim was trying to murder him, (2) appellant

provoked the victim, or (3) appellant, at the time of the beating, was otherwise engaged in

criminal activity as defined in the statute. See id.; Villarreal, 453 S.W.3d at 433–35. Because

the omitted instruction would have permitted the jury to decide the presumption did not apply to

the facts of the case, this factor does not weigh in favor of a conclusion that appellant suffered

                                                –6–
some actual rather than theoretical harm from the omission. Moreover, the applicability of the

omitted instruction depended upon the evidence adduced at trial to which we now turn. See

Villarreal, 453 S.W.3d at 435–36.

        2. State of the Evidence

       Appellant contends the evidence that the victim hit him in the head with the bat

constitutes some evidence that the victim was trying to murder him and there was no evidence

that he provoked the fight or was engaged in any criminal activity at the time of the fight. But

the State responds there was evidence appellant started the confrontation by threatening the

victim and, prior to the beating, was engaged in a plot to assault and rob the victim such that he

was not entitled to a presumption of reasonableness.

       Although there was evidence that the victim had struck appellant in the head with the tire

tester bat, appellant told the detective that he got the bat away from the victim and then took his

aggression out on the victim. The trucker who witnessed the beating also testified that “it wasn’t

a normal one guy hitting another guy to defend him off or to put him down. This guy was

meaning to do some serious damage.” According to the trucker, he never saw the victim move

during the beating and when appellant was finished, he grabbed the victim by the hair and hit his

head against the bumper of the truck. The trucker then saw the beater take three bags out of the

victim’s truck. Jackson testified that after the victim refused to give appellant money, appellant

told the victim he had flattened his truck tires and would have to buy new ones.

       Except for appellant’s own statements to the police and the bump on his head, there was

no evidence at trial that supported appellant’s justification defense. Indeed, even appellant

admitted that he took his aggression out on the victim. The trucker who witnessed the beating

also agreed that appellant did not appear to be acting in self-defense. When viewed within the

entirety of the record, appellant’s self-defense evidence was weak and we cannot conclude that

                                               –7–
appellant was harmed by the omission of the presumption instruction or that the inclusion of the

instruction likely would have altered the outcome as to whether appellant acted in self-defense.

Accordingly, this factor also weighs against a conclusion that appellant suffered some actual

rather than theoretical harm.

       3. Arguments of Counsel

       Appellant contends the State devoted a considerable portion of its closing argument

discussing the law of self-defense and whether appellant acted reasonably.           The closing

arguments did emphasize the primary contested issue, namely whether appellant was justified in

using deadly force and the reasonableness of appellant’s belief that deadly force was

immediately necessary. In fact, defense counsel actually argued that the jury was entitled to

presume appellant’s belief that deadly force was immediately necessary was reasonable if they

made the requisite findings. “Now let’s talk about the presumption of his belief. If you find,

number one, that he knew or had reason to believe somebody was trying to kill him, somebody

was trying to rob him, or somebody was trying to commit some type of felony, that’s applicable

there; and he didn’t provoke anybody and he was not otherwise engaged in criminal activity,

then the presumption that was in his mind that it was reasonable is presumptively reasonable.”

       The State, on the other hand, focused on the degree of force that appellant used after the

victim was incapacitated. “This man is beaten within an inch of his life. [Appellant] is

unscathed. Think about that. When and to what degree? So you would have to believe that

[appellant], . . . found it immediately necessary to continue to pummel [the victim] as he laid on

the ground defenseless. That’s no defense, ladies and gentlemen; that’s offense.”      . . . “Self-

defense. Absurd. This turns into an offensive act by the time [the victim] was on that ground.

By the time [the victim] was lying there motionless, by the time [appellant] chose to keep

pummeling him and then go ahead and take his property . . . .” The State also argued that to

                                               –8–
acquit appellant based on self-defense, the jury would have to find the victim’s use of force was

unlawful, something the State disputed. Considering the totality of the arguments, we cannot

conclude based on this factor that appellant suffered some actual rather than theoretical harm

from the omission of a presumption-of-reasonableness instruction in the jury charge.

       4. Entirety of Record; Other Relevant Information

       The final Almanza factor addresses any other relevant information revealed by the record

as a whole. See Almanza, 686 S.W.2d at 171. Having reviewed the record, we note that during

voir dire, defense counsel also referred to the presumption of reasonableness during his

discussion of self-defense.   “The actor’s belief that the force is immediately necessary is

presumed to be reasonable if he knew or had reason to believe that the person against who the

force was used was committing or attempting to commit a kidnapping, murder, sexual assault,

which is rape, aggravated sexual assault, robbery, [aggravated] robbery; number 2 did not

provoke the person; number 3 was not otherwise engaged in criminal activity.” The defense

counsel went on to use examples to discuss this issue with the panel. As noted above, he also

referred to this voir dire presumption of reasonableness discussion during his closing argument.

Because the presumption-of-reasonableness was presented to the jury during voir dire and again

in closing argument, we conclude, this factor also does not support a conclusion that appellant

suffered some actual as opposed to theoretical harm from the omission of the statutory

presumption from the jury charge.

       Because an instruction on the statutory presumption would have allowed the jury to not

apply the presumption if they made certain findings, the evidence in the record of self-defense

was weak, and the jury was actually informed about the presumption of reasonableness at voir

dire and during closing arguments, we conclude the record fails to indicate the existence of

egregious harm. We resolve appellant’s second issue against him.

                                              –9–
 B.    Legal Sufficiency

       In his first point of error, appellant argues that the evidence is legally insufficient to

support his conviction. In reviewing a legal sufficiency challenge, we must determine whether

any reasonable fact finder could have found the essential elements of the offense beyond a

reasonable doubt. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012) (citing Jackson v.

Virginia, 443 U.S. 307, 319 (1979)). We review all the evidence in the light most favorable to

the verdict, giving deference to the fact finder’s responsibility to weigh the evidence, resolve

conflicting testimony, and draw reasonable inferences from basic facts to ultimate facts. See id.

We also determine “whether the necessary inferences are reasonable based upon the combined

and cumulative force of all of the evidence when viewed in the light most favorable to the

verdict.”   Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).             Direct and

circumstantial evidence are treated equally. Id.

       To obtain a conviction for aggravated assault, the State had to prove appellant

intentionally or knowingly assaulted another causing serious bodily injury to the person. See

TEX. PENAL CODE ANN. § 22.02 (West 2011). Where, as here, appellant produces some evidence

of self-defense, the State does not have to produce evidence refuting self-defense, but must still

prove its case beyond a reasonable doubt. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim.

App. 2003). A finding of guilt is an implied finding that appellant did not act in self-defense.

See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). Because appellant asserts a

sufficiency challenge on the basis of his claim of self-defense, we must determine whether any

rational fact finder would have found the essential elements of the offense beyond a reasonable

doubt and would have found against appellant on the self-defense issue beyond a reasonable

doubt. See id.




                                              –10–
       The evidence revealed that the encounter between appellant and the victim started when

appellant attempted to obtain money from the victim for bringing Jackson to his truck. When the

victim refused to pay, appellant told him he had flattened the victim’s tires. Even if this

prompted the victim to confront and hit appellant with the tire tester bat, appellant told police

that he took the bat away from the victim and then “took my aggression out on him.” The

trucker who witnessed the beating did not believe appellant was acting in self-defense because of

the force appellant was using and the fact that victim was lying on the ground motionless while

being beaten. After appellant finished beating the victim, the trucker saw appellant enter the

victim’s truck and remove three bags. The victim was beat “beyond recognition” according to

the trucker. The evidence was undisputed that the victim sustained extensive injuries to his face

and head that required reconstructive surgery. It was also undisputed that the victim no longer

works as a trucker due to his injuries and was currently living with his sister. At trial, the victim

identified jewelry found on appellant when he was apprehended as belonging to him. After

reviewing the evidence in the light most favorable to the verdict, we conclude a rational jury

could have found beyond a reasonable doubt the elements of aggravated assault and could have

found against appellant on the self-defense issue beyond a reasonable doubt. See Saxton, 804

S.W.2d at 914. We resolve appellant’s first issue against him.

       We affirm the trial court’s judgment.




Do Not Publish                                      / David Evans/
TEX. R. APP. P. 47                                  DAVID EVANS
131479F.U05                                         JUSTICE




                                               –11–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

ZACHARIAH ARTHUR WILLIAMS,                             On Appeal from the Criminal District Court
Appellant                                              No. 3, Dallas County, Texas
                                                       Trial Court Cause No. F13-53277-J
No. 05-13-01479-CR        V.                           Opinion delivered by Justice Evans, Justices
                                                       Myers and Brown participating.
THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 23rd day of June, 2015.




                                                –12–
