                                                                                  ACCEPTED
                                                                             03-14-00290-CR
                                                                                    3964923
                                                                   THIRD COURT OF APPEALS
                                                                              AUSTIN, TEXAS
                                                                       1/30/2015 12:32:58 PM
                                                                            JEFFREY D. KYLE
                                                                                      CLERK


                     No. 03-14-00290-CR
                                                            FILED IN
                                                     3rd COURT OF APPEALS
                              In the                      AUSTIN, TEXAS
                         Court of Appeals            1/30/2015 12:32:58 PM
                          Third District                 JEFFREY D. KYLE
                          Austin, Texas                       Clerk


                  Michael Shawn Alexander,
                           Appellant

                                 v.

                      The State of Texas,
                           Appellee

           Appeal from the 403rd Judicial District Court
                      Travis County, Texas
               Cause Number D-1-DC-13-201709

                        STATE’S BRIEF


                             Rosemary Lehmberg
                             District Attorney
                             Travis County

                             Georgette Hogarth
                             Assistant District Attorney
                             State Bar No. 24007129
                             P.O. Box 1748
                             Austin, Texas 78767
                             (512) 854-9400
                             Fax (512) 854-4810
                             Georgette.Hogarth@traviscounty.gov
                             AppellateTCDA@traviscounty.gov

Oral argument is not requested
                                     Table of Contents
Index of Authorities............................................................................. ii
Statement of the Case ......................................................................... iii
Statement Regarding Oral Argument................................................. iii
Statement of Facts ................................................................................1
Summary of the State’s Argument......................................................10
POINT OF ERROR ............................................................................. 11
  No evidence was presented to support an inference that the
  appellant acted in self-defense when he choked or strangled the
  victim, thus the trial court properly denied the appellant’s request
  for an instruction. ............................................................................ 11
Prayer ................................................................................................ 20
Certificate of Compliance ...................................................................21
Certificate of Service...........................................................................21




                                                    i
                                   Index of Authorities
Cases
Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on
  reh'g)................................................................................................ 11
Alonzo v. State, 353 S.W.3d 778, 783 (Tex. Crim. App. 2011) ............13
Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) ............. 11
Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001) ...............12
Gonzales v. State, 2014 Tex. App. LEXIS 12944, 8-9, mem. op.,(Tex.
  App. Austin Dec. 4, 2014)................................................................18
Hooper v. State, 214 S.W.3d 9, 15-16 (Tex. Crim. App. 2007)............18
Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).............. 11
Shaw v. State, 243 S.W.3d 647, 657-58 (Tex. Crim. App. 2007) ........12
VanBrackle v. State, 179 S.W.3d 708, 715 (Tex. App. Austin 2005)...14
Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008).......... 11
Statutes
Tex. Pen. Code § 9.01(3) .....................................................................13
Tex. Penal Code § 19.03...................................................................... iii
Tex. Penal Code § 9.32........................................................................13
Tex. Penal Code §9.31 .........................................................................13




                                                    ii
                         Statement of the Case
   On April 15, 2013, a Travis County grand jury indicted the

appellant for assault by strangulation, family violence, enhanced with

prior family violence assault convictions, as well as with other

convictions. CR 23-25; Tex. Penal Code § 22.01 (b-1). The appellant

pleaded not guilty and proceeded to a trial by jury. CR 147, 5RR 9.

The jury convicted the appellant of assault, family violence, as alleged

in the indictment. CR 161; 6RR 235-6. The appellant elected to have

the trial court assess punishment, and, on April 23, 2014, the court

assessed punishment at confinement in the institutional division of

the Texas Department of Criminal Justice for twenty-five years. CR

162. The trial court certified the appellant’s right to appeal. CR 164,

168-69. The appellant filed a motion for new trial and notice of

appeal on May 16, 2014. CR 198-208.

                Statement Regarding Oral Argument
   The State does not believe that oral argument is necessary, but if

the court grants argument, the State respectfully requests to argue as

well.




                                   iii
                             No. 03-14-00290-CR

                                       In the
                                  Court of Appeals
                                   Third District
                                   Austin, Texas

                         Michael Shawn Alexander,
                                  Appellant

                                          v.

                               The State of Texas,
                                    Appellee

                 Appeal from the 403rd Judicial District Court
                            Travis County, Texas
                    Cause Number D-1-DC-13-2001709

                                 STATE’S BRIEF

To the Honorable Third Court of Appeals:
    Now comes the State of Texas and files this brief in response to that of

Appellant.

                               Statement of Facts
      On March 25, 2013, around 9 p.m., Officers Cornette and Carruth

were responding to an unrelated disturbance call on Clifford Avenue in East

Austin when they stepped outside on the porch of a residence and heard a

high-pitched scream.1 5RR 24-26, 65. Fearing that someone was in trouble,

they went down the street to investigate. 5RR 27, 66. As the officers

1The officers’ microphones linked to the in-car video captured the scream. 5RR 41, 44,
72; SE 25, 26.
                                           1
proceeded down the street, a couple of gentlemen who were hanging out in

a driveway directed them toward the location of the scream. 5RR 30-32,

66. In the meantime, the officers were advised over the radio that a call

came in regarding a scream and a male running from a fenced-in yard. This

information corresponded to the officers’ location and to what the officers

had heard. 5RR 33, 67. The officers proceeded to walk toward the

direction of the house, which had a low fence around the front yard, and

they saw a man outside “banging on the door and yelling.” 5RR 35, 67. The

officers drew their weapons, commanded the male (identified as the

appellant) to come to the officers, and handcuffed him. 3RR 35, 48, 62, 68.

The officers drew their weapons because of the severity of the scream and

the appellant appearing as though he was trying to get inside the house.

5RR 74. The officers noticed that the appellant was sweating profusely even

though it was 50 degrees outside. 5RR 48, 73, 88-89.

      Officer Cornette knocked on the door of the home to check on the

welfare of any occupants and found a woman inside. Cornette briefly talked

to the woman, determined that she had been assaulted but not in

immediate need of EMS. Officer Cornett then left, handing the case over to

Officer Troy Wiser, who had been the one assigned this particular call. 3RR

36-37. 60, 69.

                                      2
     When officer Wiser arrived, the appellant was placed in his vehicle,

while he conducted further investigation. 5RR 86. Wiser went inside the

home, which appeared “more or less organized” (5RR 94), and spoke to

Darnise Bowens. 5RR 87. Bowens was crying and had a really red face. Id.

Bowens had difficulty speaking through her crying, appeared nervous and

afraid. 5RR 88. Bowens had a bloodstain on her shirt. 5RR 95. Bowens did

not appear sweaty as the appellant did. 5RR 89. Bowens made an

allegation of strangulation, which requires that EMS is called because of the

possibility of non-visible injuries. 5RR 91. Bowens complained of pain in

the neck area and back of right shoulder. 5RR 98. Officer Wiser did not see

any visible injuries on Bowens’ neck, but that is not unusual with

strangulation. 5RR 104. Officer Wiser talked with Bowens for five to ten

minutes (5RR 93), and then went outside to talk to the appellant, who was

not forthcoming with information. 5RR 95, 99.

     Based on what he observed and on the statements made, Wiser

placed the appellant under arrest. 5RR 95. Wiser took the appellant to

central booking, and testified that the appellant became more “cordial” and

“charming” as time passed. 5RR 99. At one point, the appellant called




                                      3
Wiser over and showed him a bite mark on his upper right arm and a cut on

his upper lip.2 5RR 100.

       In light of the information Wiser obtained from Bowens, he testified

that the bite mark on the appellant’s arm appeared to be a wound created

by Bowens in defending herself in an effort to get his arm away from her

face. 5RR 104-05. Wiser demonstrated a choke hold for the jury. 5RR 106.

Wiser also explained why such a wound on the appellant’s arm would be

very unlikely if Bowens had been on the offensive. 5RR 107. Based on

Bowens’ and on the appellant’s condition that night, and the statements

that they gave, Wiser found the injuries on the appellant more consistent

with Bowens’ version of events.3 5RR 109.

       Stephanie Burgess, a licensed social worker with the police

department, was called out to Bowens’ home for victim services on the

night in question. 5RR 153-54. Burgess described Bowens as “very red”

and looked like she had been crying and was fearful of the appellant. 5RR

155.

    EMS was called as per protocol of the Austin Police Department policy.

6RR 7. Paramedic Ken Saunders responded and described Bowens as very

2 Photos were taken of both the appellant and Bowens on that night. 5RR 102; SE 28-35.
3 Wiser explained that the statements he takes at the scene are not formal, detailed
statements, which are taken at a later time. 5RR 110.
                                          4
upset, emotional and crying. 6RR 12. Saunders observed bruising on

Bowens and wanted her to go the hospital. 6RR 38. Bowens refused

transport to the hospital, and instead she was given all the information that

she needed to determine whether she needed further treatment later on.

6RR 17- 22, 38.

   Bowens suffered extreme pain in the neck area and her arms from the

assault. 5RR 209. She took 800 milligrams of ibuprofen for the pain. 5RR

210.

   Bowens testified that she moved to Austin in 2005 from Louisiana,

shortly after Hurricane Katrina. 5RR 169-170. A couple of years after

moving to Austin, she met the appellant. 5RR 170. The two eventually

married, but divorced in 2011. 5RR 171. Following the divorce, the

appellant was out of Bowens’ life; however, he reinitiated contact and

eventually, Bowens allowed him back into her life when he said he had

changed. 5RR 173-74.

   Bowens testified that the appellant started sleeping in his car in Bowens’

driveway. 5RR 177. In time, Bowens allowed him to sleep inside her home.

5RR 177. Bowens also gave the appellant rides to work when he procured a

job through a friend at the Circuit of the Americas racetrack because his car


                                      5
was not reliable. 5RR 174-78. The appellant was able to make other

arrangements for a while by sleeping at a trailer near the track, but when

this arrangement fell through, the appellant asked to stay with Bowens and

she agreed. 5RR 178-79. At the time, Bowens was living with her three

children, ages 18, 20, 22, in a 900 square-foot home. 5RR 180, 186. The

appellant slept in the living room. 5RR 181. The appellant, however, did

not respect Bowens’ boundaries, and intimate relations resumed between

them. 5RR 182.

   On March 25, 2013, Bowens had allowed the appellant to use her car as

long as he picked Bowens up from work. The appellant was taking some

classes at ACC and did not have a car. 5RR 183. However, when it was

time for the appellant to pick up Bowens, he did not show up. 5RR 183.

Bowens phoned him and he came an hour later to get her. 5RR 184.

Bowens had worked a long shift at her job that day (5RR 183), and they

went home, where they were alone. 5RR 185-86. Bowens was tired, knew

she had a long day ahead of her the next day, and all she wanted to do when

she got home was take a bath and go to bed. 5RR 186. The appellant,

however, wanted Bowens to pay attention to him. He wanted Bowens to

focus on his needs and to help him out with his things. 5RR 186-87. The

appellant kept following Bowens around the home. 5RR 186. As she went

                                     6
to her bathroom, she walked in and was surprised when the appellant

attacked her, putting his arm around her neck, choking her. 5RR 187-88.

The appellant used his arm and put it around her neck and held. 5RR 188.

Bowens tried to get out of the choke hold—she bit the appellant’s arm,

screamed, and cried. 5RR 190. The attack lasted about three to five

minutes, and when Bowens said “Jesus,” the appellant released her for

some reason, and pushed her toward the bathtub. 5RR 188. She took that

opportunity to get out of the bathroom and went into her bedroom. The

assault continued with the two of them wrestling on her bed. 5RR 191-93.

At some point Bowens was able to run out and went in the living room but

the appellant caught up with her. The appellant pushed her in a chair, got

on top of Bowens, and put his hands around her neck. 5RR 193. Bowens

could see the rage in the appellant’s eyes as he attacked her. 5RR 194. This

incident lasted some three to four minutes. 5RR 194. Bowens was punching

at the appellant, and he eventually let her go. 5RR 195. Bowens, crying

and disheveled, ran out of the house but the appellant followed her, trying

to pull her back inside. 5RR 195-96. Bowens was screaming as she tried to

run out to a neighbor’s house. 5RR 196. Her screams caused the appellant

to pull away from her, which left room for her to run back into her home

and lock the doors. 5RR 196-97. Within minutes the police arrived. 5RR


                                      7
207. The appellant was at the side of the house screaming for Bowens to let

him in when the police came. 5RR 207.

       The appellant continued to contact Bowens after he was taken to jail.

5RR 210. He sent her letters, but she did not write him back. 5RR 212-13,

215-16. Bowens understood that the appellant’s letters concerned her

signing an affidavit of non-prosecution, and he even mailed her an affidavit

at one point. 5RR 218, 220-22; SE 24. The appellant also advised Bowens

that she can take the 5th Amendment if she is subpoenaed. 5RR 222.

Phone calls placed by the appellant to Bowens from jail were also admitted.

5RR 224; SE 15. In one of the calls, Bowens tells the appellant he was

“wrong for that” and that “he should have kept his damn hands to himself.”

5RR 226; SE 15 (7:15-7:30).4 The appellant never claimed that Bowens’

understanding was wrong or that Bowens started the fight. 5RR 226.

During another phone call, the appellant indicated that the two of them

don’t need to hate each other, but he shouldn’t have to go to the pen. 5RR

227; SE 16 (2:55-3:00). In another call, the appellant is asking Bowens to

talk to his lawyer, which she understood as her calling the attorney and say

she wasn’t going through with the charges. 5RR 228; SE 17 (4:53-5:10;




4   SE 15 has a four minute silent section that was cut out of the recoding. 5RR 228.
                                                       8
6:15-6:45; 7:25-10; 12:50-13:20). Bowens did not contact the attorney.

5RR 228, 273.

   Bowens denied that she started the fight, denied that she was jealous of

something, and denied that she attacked the appellant. 5RR 228, 275.

   The jury found the appellant guilty of family violence assault, by

impeding normal breathing, as alleged in the indictment. 6RR 235.




                                     9
                  Summary of the State’s Argument
The appellant was not entitled to a self-defense instruction.
   To be entitled to a self-defense instruction, some evidence must raise

each element of the defense that if believed, would support a rational

inference that the element is true. Although there was evidence that the

appellant had a bite wound and a small cut on his lip, there was no evidence

as to how he sustained those injuries that would support a self-defense

instruction. Additionally, the victim denied that she initiated an attack on

the appellant and no evidence was presented that she was the first

aggressor which led the appellant to have to defense himself by choking the

victim. As such, the trial court properly denied the requested self-defense

instruction.




                                      10
                            POINT OF ERROR
No evidence was presented to support an inference that the
appellant acted in self-defense when he choked or strangled the
victim, thus the trial court properly denied the appellant’s
request for an instruction.
                           Standard of review
      In analyzing a jury-charge issue, the reviewing court first decides if

error exists. See Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App.

1985) (op. on reh'g). Only if the appellate court finds error does it consider

whether an objection to the charge was made and analyze for harm. See

Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008) ("The failure

to preserve jury-charge error is not a bar to appellate review, but rather it

establishes the degree of harm necessary for reversal.").

      “The degree of harm necessary for reversal depends upon whether the

error was preserved.” Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App.

1996). Error properly preserved by a timely objection to the charge will

require reversal “as long as the error is not harmless.” Almanza, 686

S.W.2d at 171. The Court of Criminal Appeals has interpreted this to mean

that any harm, regardless of degree, is sufficient to require reversal. Arline

v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986).

      When considering whether a defendant suffered harm, the reviewing

court must consider: (1) the entire jury charge; (2) the state of the evidence,

                                      11
including the contested issues and weight of probative evidence; (3) the

argument of counsel; and (4) any other relevant information revealed by

the record of the trial as a whole. Almanza, 686 S.W.2d at 171. The

reviewing court must conduct this examination of the record to “illuminate

the actual, not just theoretical, harm to the accused.” Id. at 174.

                                 Argument

      The appellant maintains that the evidence supports a self-defense

instruction; however, he relies on speculation to support his argument, and

as such, the trial court did not err in denying his request for an instruction.

Applicable case law

      “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.” Ferrel v. State, 55 S.W.3d 586,

591 (Tex. Crim. App. 2001). “Raised by the evidence” means "there is some

evidence, from any source, on each element of the defense that, if believed

by the jury, would support a rational inference that that element is true."

Shaw v. State, 243 S.W.3d 647, 657-58 (Tex. Crim. App. 2007). In deciding




                                       12
the issue, the evidence is viewed in the light most favorable to the

defendant. Ferrel, 55 S.W.3d at 591.

      A person is justified in using force against another when he believes the

force is immediately necessary to protect him against the other's use of

unlawful force. See Tex. Penal Code §9.31. A person is justified in using

deadly force "if the actor would be justified in using force against the other

under Section 9.31; and when and to the degree the actor reasonably

believes the deadly force is immediately necessary to protect the actor

against the other's use or attempted use of unlawful deadly force." Tex.

Penal Code § 9.32(a)(1), (2)(A). “Deadly force” is defined as “force that is

intended or known by the actor to cause, or in the manner of its use or

intended use is capable of causing, death or serious bodily injury.” Tex. Pen.

Code § 9.01(3). Self-defense is available when "the amount of force actually

used was permitted by the circumstances." Alonzo v. State, 353 S.W.3d 778,

783 (Tex. Crim. App. 2011).

        The self-defense provisions in the Penal Code focus on the
        actor's motives and on the level of force used, not on the
        outcome of that use of force. If the actor reasonably believed
        that the force was necessary to protect himself against another's
        unlawful use of force, and the amount of force actually used was
        permitted by the circumstances, Sections 9.31 and 9.32 apply,
        regardless the actual result of the force used.
Id.

                                        13
      Self-defense, like other chapter nine defenses, justifies conduct
      that would otherwise be criminal. In other words, the defendant
      must "admit" violating the statute under which he is being tried,
      then offer a statutory justification for his otherwise criminal
      conduct. Thus, a defendant is not entitled to a jury instruction
      on self-defense if, through his own testimony or the testimony of
      others, he claims that he did not perform the assaultive acts
      alleged, or that he did not have the requisite culpable mental
      state, or both
VanBrackle v. State, 179 S.W.3d 708, 715 (Tex. App. Austin 2005), internal

citations omitted.

    Analysis

   In the present case, there is no evidence that the victim attacked the

appellant first or any evidence of the appellant’s perceived threat that

would cause him to defend himself by choking and/or strangling the victim.

The assaultive conduct in this case alleged that the appellant caused bodily

injury “by seizing Darnise Bowens on or about the throat or neck with his

arm and/or hand or by grabbing Darnise Bowens with his hand or by

pushing Darnise Bowens with his hand or by throwing Darnise Bowens

with his hand or by pulling Darnise Bowens with his hand” and further that

the appellant “did intentionally or knowingly or recklessly impede the

normal breathing or circulation of the blood of Darnise Bowens, by

applying pressure to Darnise Bowen's throat or neck with his arm and/or

hand.” 6RR 179; CR 23, 157.

                                      14
   At trial, the appellant requested a self-defense instruction based on

Officer Wiser’s testimony that “that the injuries to Ms. Darnise Bowens

could have been caused by anything, including self-defense by the

defendant.” 6RR 174. The request was denied. 6RR 172. On appeal, the

appellant adds that the appellant was bitten by the victim on his arm,

suffered a cut on his lip, and had wounded his left hand. App. Bf. at 35. He

continues that there was evidence that the victim punched the appellant,

that the incident was like a wrestling match, and that the victim had a

bloodstain on her shirt and no visible wounds. Id.

   Officer’s Wiser’s testimony does not provide evidence that the victim

attacked the appellant first, nor do the wounds on their own support such

an inference. Specifically, Wiser testified on cross-examination to the

following:

     Q. Okay. And you had stated that in your training and
     experience that -- that these wounds could have been consistent
     with defensive wounds; is that right?
     A. That's correct.
     Q. They could also have been consistent with [the appellant]
     being attacked; wouldn't you agree?
     A. Anything is possible.
     Q. Okay. So these wounds alone don't definitively put it one way
     or the other? There's more to an investigation than just the
     wounds; is that fair to say?

                                     15
      A. Yes, wounds without statements are just wounds.
5RR 128-29. This exchange does not constitute evidence that the appellant

acted in self-defense and provides no indication that the victim was the first

aggressor to this altercation. Rather, this exchange supports the trial

court’s denial of the requested instruction because the exchange elucidates

that “wounds” are just “wounds” without more information. Wiser

explained why such a wound on the appellant’s arm would be very unlikely

if Bowens had been on the offensive. 5RR 107. Based on Bowens’ and the

appellant’s condition that night, and the statements they gave, Wiser found

the injuries on the appellant more consistent with Bowens’ version of

events. 5RR 109.

      Although the appellant had a bite wound and a small cut on his lip,

there was no testimony or evidence that these wounds occurred prior to the

appellant choking the victim, causing the appellant to defend himself by

choking or strangling the victim. At the scene, the appellant maintained

that there had been no physical altercation. 5RR 147. When the appellant

mentioned the bite marks at the jail, Officer Wiser Mirandized the

appellant and then asked if he wanted to talk further, but the appellant

declined. 5RR 148. Although Epstein testified that the appellant said that

“something physical had happened,” there was no detail as to what exactly


                                     16
happened or whether the appellant admitted to having strangled the victim

in order to defend himself from her. 6RR 61-62; App. Bf. at 36.

     The evidence that was presented regarding the appellant’s and the

victim’s interactions from that evening mainly came from Bowens. Bowens

recounted that the appellant was late picking her up from work, she was

tired and when they got home she just wanted to take a bath. The appellant

however followed Bowens around the house and surprise attacked her in

the bathroom by placing her in a choke hold. After she got away, another

altercation occurred on her bed, followed by the appellant going after her

into the living room and strangling her while she was on a chair. 5RR 184-

94. Bowens was able to leave the house, where her high-pitched scream

alerted nearby officers. 5RR 24-26, 65, 195. Police arrived, finding the

appellant banging on the door of the home and yelling. The appellant was

perspiring heavily, even though it was cool that night, and provided no

statement as to an altercation. 5RR 35, 48, 62, 73.

     Additionally, Bowens denied that she started the fight or attacked the

appellant. 5RR 228, 275. In a recorded jail phone conversation the

appellant had with Bowens after he was arrested, the appellant did not

claim that Bowens started the fight, agreed that he should have kept his

hands to himself, and denied that he was saying he acted in self-defense.
                                     17
5RR 226; SE 15. As such, the appellant’s argument that he acted in self-

defense relies on speculation rather than inferences that the jury could have

made from the evidence. See e.g. Hooper v. State, 214 S.W.3d 9, 15-16

(Tex. Crim. App. 2007) (“Speculation…about the possible meaning of facts

and evidence …is not sufficiently based on facts or evidence to support a

finding beyond a reasonable doubt.”); see also Shaw, 243 S.W.3d at 657-58.

      Similarly, in the recent case of Gonzales v. State the defendant argued

that “(1) two cuts he sustained on the fingers of his left hand during the

time of the offense and (2) an argument he allegedly had with the victim”

supported a claim for self- defense, contending that “the cuts were

defensive wounds, sustained in response to the victim's first aggressive act

towards him with the knife that caused her death.” Gonzales v. State, 2014

Tex. App. LEXIS 12944, 8-9, mem. op., (Tex. App. Austin Dec. 4, 2014).

The appellate court agreed with the trial court that “the cuts on appellant's

hand, without more, were insufficient as a matter of law to raise the

element of self-defense requiring the victim to have been the first

aggressor.” The court in Gonzales also noted that the argument defendant

“allegedly had with the victim was also insufficient, without more, to raise

the defense, as an argument does not equate with an act or attempted act of

violence.” Id. As in Gonzales, the appellant simply relies on minor wounds

                                      18
he sustained, but does not point to testimony or evidence in the record that

the victim started the physical altercation in this case.

      Further, the appellant cannot show any harm from the alleged error.

As noted, the evidence presented did not raise the issue of self-defense.

Additionally, the victim was found in an agitated state, all red faced and

crying, fearful of the appellant. 5RR 87-88, 155; 6RR 12. Testimony also

revealed that with strangulation, visible injuries are minimal. 5RR 104;

6RR 154. After his arrest, the appellant repeatedly contacted the victim,

pressuring her to not pursue this case and even provided her with an

affidavit for non-prosecution. 5RR 218, 220-22; SE 24. At trial, the

appellant’s strategy questioned the victim’s veracity, arguing that his hand

was hurt as he was trying to leave an angry situation. 5RR 17-20; 6RR 211-

215. In light of the entire evidence, the appellant cannot show that the trial

court’s ruling caused him any harm.

      In sum, the trial court did not err in denying the appellant’s request

for a self-defense instruction, nor can harm be shown. The appellant’s point

of error should be overruled.




                                       19
                                     Prayer
   The State asks this Court to overrule Appellant’s point of error and to

affirm the trial court’s judgment.

                                     Respectfully submitted,
                                     Rosemary Lehmberg
                                     District Attorney
                                     Travis County

                                      /s/Georgette Hogarth
                                     Georgette Hogarth
                                     Assistant District Attorney
                                     State Bar No. 24007129
                                     P.O. Box 1748
                                     Austin, Texas 78767
                                     (512) 854-9400
                                     Fax (512) 854-4810
                                     Georgette.Hogarth@traviscountytx.gov
                                     AppellateTCDA@traviscountytx.gov




                                       20
                        Certificate of Compliance
       Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the State
certifies that the length of this response is 4,017 words. The State also
certifies, pursuant to Texas Rule of Appellate Procedure 9.4(e), a
conventional typeface 14-point was used to generate this motion.
                                            /s/Georgette Hogarth
                                            Georgette Hogarth

                           Certificate of Service
      This is to certify that a true and correct copy of this response is being
served by U.S. mail, electronic mail, or by facsimile, to the appellant’s
attorney, Paul Evans, at 811 Nueces Street, Austin, Texas 78701,
paulmatthewevans@hotmail.com, on January 30, 2015.
                                            /s/Georgette Hogarth
                                            Georgette Hogarth




                                       21
