      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-09-00538-CR



                                 Jimmie Ray Tullos Jr., Appellant

                                                   v.

                                    The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
      NO. D-1-DC-09-200470, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING



                              MEMORANDUM OPINION


                A jury convicted appellant Jimmie Ray Tullos, Jr. of the offense of aggravated assault

with a deadly weapon. See Tex. Penal Code Ann. § 22.02(a)(2) (West Supp. 2009). The jury heard

evidence that in the early morning hours of January 25, 2009, in downtown Austin, Tullos got into

a physical altercation with Nathan Lipson and Donald Schmit. During the altercation, witnesses

testified, Tullos exhibited a knife. Tullos’s theory at trial was that he had acted in self-defense

during the altercation to prevent Schmit from robbing him, and he presented evidence to that effect.

Accordingly, the district court instructed the jury on the law of self-defense, but the jury nevertheless

found Tullos guilty as charged. Punishment was assessed at 25 years’ imprisonment. This appeal

followed. In a single issue on appeal, Tullos asserts that the district court erred in not providing an

additional instruction related to self-defense that trial counsel did not request and that is being argued

for the first time on appeal. We will affirm the judgment.
                                    STANDARD OF REVIEW

                We review claims of jury charge error under the two-pronged test set out in

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); Swearingen v. State,

270 S.W.3d 804, 808 (Tex. App.—Austin 2008, pet. ref’d). We first determine whether error exists.

Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Swearingen, 270 S.W.3d at 808. If

error exists, we then evaluate the harm caused by the error. Ngo, 175 S.W.3d at 743; Swearingen,

270 S.W.3d at 808. The degree of harm required for reversal depends on whether that error was

preserved in the trial court. When error is preserved in the trial court by timely objection, the record

must show only “some harm.” Almanza, 686 S.W.2d at 171; Swearingen, 270 S.W.3d at 808. By

contrast, unobjected-to charge error requires reversal only if it resulted in “egregious harm.” See

Neal v. State, 256 S.W.3d 264, 278 (Tex. Crim. App. 2008).


                                             ANALYSIS

                In his sole issue on appeal, Tullos complains about the district court’s charge

regarding the law of self-defense. In relevant part, the court’s charge provided:



                                                  V.

        Upon the law of self defense you are instructed that a person is justified in using
        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.

        ....




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A person is justified in using deadly force against another:

       (1) if the person would be justified in using force against the other; and

       (2) when and to the degree the person reasonably believes the deadly force is
       immediately necessary to prevent the other’s imminent commission of
       robbery.

....

A “presumption” is a conclusion the law requires you to reach if certain other facts
exist.

The defendant’s belief that the deadly force was immediately necessary is presumed
to be reasonable if the defendant:

       (1) knew or had reason to believe that the person against whom the deadly
       force was used was committing or attempting to commit robbery;

       (2) the defendant did not provoke the person against whom the force was
       used;

       (3) the defendant was not otherwise engaged in criminal activity, other than
       a Class C misdemeanor that is a violation of a law or ordinance regulating
       traffic at the time the force was used.

....

“Reasonable belief” means a belief that would be held by an ordinary and prudent
person in the same circumstances as the defendant.

The presumption of reasonable belief applies unless the State proves beyond a
reasonable doubt that the facts giving rise to the presumption do not exist.

If the State fails to prove beyond a reasonable doubt that the facts giving rise to the
presumption of reasonable belief do not exist, the jury must find that the presumed
facts exist.

Even though the jury may find the presumed fact does not exist, the state must prove
beyond a reasonable doubt each of the elements of the offense charged.




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       If the jury has a reasonable doubt as to whether the presumed facts exist, the
       presumption applies and the jury must consider the presumed fact to exist.

                                                 VI.

       Now bearing in mind all instructions, if you believe from the evidence beyond a
       reasonable doubt that the defendant, Jimmie Ray Tullos, Jr. . . . did then and there
       intentionally or knowingly threaten Donald Schmit with imminent bodily injury
       and did then and there use or exhibit a deadly weapon, to-wit: a utility knife, during
       the commission of said assault; but you further find from the evidence, or have a
       reasonable doubt thereof, that the defendant reasonably believed, or is presumed to
       have reasonably believed as viewed from his standpoint alone, that deadly force when
       and to the degree used, if it was, was immediately necessary to prevent the imminent
       commission by the said Donald Schmit of robbery, you will acquit the defendant and
       say by your verdict not guilty.


On appeal, Tullos does not contend that the above instructions were improper. Rather, he claims that

the district court should have included an additional instruction that the defendant is entitled to an

acquittal when either the State fails to prove beyond a reasonable doubt that the presumed fact does

not exist or the jury has a reasonable doubt whether the presumed fact exists. In Tullos’s view, not

including such an additional instruction “creates not only jury confusion but most importantly the

very real possibility that a defendant will be convicted of a crime in which a presumed fact justifying

the defendant’s conduct exists.”

               The trial court is required to deliver to the jury “a written charge distinctly setting

forth the law applicable to the case.” Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007). That is

what the district court did here. Tracking the relevant provisions in the penal code, the definitional

portion of the charge properly instructed the jury on the law of self-defense, see Tex. Penal Code

Ann. § 9.31 (West Supp. 2009), the law of deadly force, see id. § 9.32 (West Supp. 2009), and the

law regarding presumptions, see id. § 2.05 (West Supp. 2009), including the State’s burden to prove

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beyond a reasonable doubt that facts giving rise to the presumption do not exist. The application

portion of the charge then properly instructed the jury regarding the circumstances under which

the jury must acquit Tullos. We are aware of no authority, statutory or otherwise, that requires the

trial court to submit the type of additional instruction now requested by Tullos, nor does Tullos cite

to any such authority in his brief. We find no error in the district court’s charge. See Holley v. State,

766 S.W.2d 254, 256 (Tex. Crim. App. 1989) (finding no error in jury charge when instructions

“provided the jury with a complete map which directed [it] through each step necessary to convict”);

Daniel v. State, 486 S.W.2d 944, 947 (Tex. Crim. App. 1972) (in reviewing jury charge for alleged

error, in this case complaint that charge as worded was confusing, “[t]he charge should be viewed

as a whole, and review should not be limited to parts of the charge standing alone”).

                We also observe that Tullos did not object during trial to the absence of the

instruction he now requests for the first time on appeal. Thus, even if the omission of the additional

instruction was erroneous, Tullos would not be entitled to reversal unless the harm from that

omission was egregious. On this record, we could not conclude that it was. Again, the jury was

properly instructed regarding what circumstances under which it must acquit Tullos, and there is no

indication in the record that the jury was confused by the court’s instructions or that Tullos was

convicted of a crime in which a presumed fact justifying Tullos’s conduct exists.

                We overrule Tullos’s sole issue on appeal.




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                                       CONCLUSION

              We affirm the judgment of the district court.




                                            __________________________________________

                                            Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Affirmed

Filed: July 22, 2010

Do Not Publish




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