Affirmed and Memorandum Opinion filed August 29, 2019.




                                         In The

                      Fourteenth Court of Appeals

                                NO. 14-18-00078-CR

                        LISA ANN BARFIELD, Appellant
                                           V.
                        THE STATE OF TEXAS, Appellee

                     On Appeal from the County Court No. 3
                            Galveston County, Texas
                      Trial Court Cause No. MD-0361467

                           MEMORANDUM OPINION

      A jury convicted appellant, Lisa Ann Barfield, of assault causing bodily
injury. See Tex. Penal Code § 22.01(a)(1). On appeal, appellant argues (1) the
trial court erred in reciting the full statutory definition of “intentionally” in the jury
charge, and (2) the trial court improperly charged on the burden of self-defense.
The State responds and questions our jurisdiction to entertain this appeal based on
the timeliness of appellant’s notice of appeal.1

       We overrule appellant’s first point of error as there can be no egregious
harm when the application paragraph correctly instructs the jury despite an
incorrect definition in the abstract portion. We overrule appellant’s second issue
on appeal because the trial court correctly charged the jury as to the burden of
proof on self-defense. We therefore affirm the trial court’s judgment.

                                       BACKGROUND

       Appellant was charged by the State for a misdemeanor assault. Appellant
was at the Tremont House (“Tremont”) in Galveston, Texas where she was
drinking at the lobby bar. The staff in the lobby bar eventually cut appellant off
from further alcohol purchases. Appellant went to the hotel’s rooftop bar later that
same day. Appellant was drinking and asked to close her tab. Staff told appellant
she was cut off and she demanded to speak to someone in charge.

       Ashley Jasper, the food and beverage manager in charge that night at the
Tremont, met with appellant.              According to Jasper, appellant was very
confrontational, aggressive, and used profanity that evening. Jasper testified that
appellant raised her voice.        Appellant then started moving toward Jasper and

1
  The State briefly questions this Court’s jurisdiction in their statement of the case. The State
contends that while appellant’s notice of appeal was filed within the 15-day grace period, the
motion for extension of time was one day late. See Tex. R. App. P. 26.3. Appellant asserts that
she e-filed a motion for extension of time on the fifteenth day along with her notice of appeal,
but it was rejected by the e-filing service provider. See Tex. R. App. P. 9.2(c)(4). We then
granted the motion for extension of time. See Tex. R. App. P. 26.3. Therefore, her notice of
appeal is deemed timely filed and we have jurisdiction to hear this appeal. Olivo v. State, 918
S.W.2d 519, 522 (Tex. Crim. App. 1996); Slaton v. State, 981 S.W.2d 208 210 (Tex. Crim. App.
1998) (per curiam) (reaffirming the rule in Olivo under revised Texas Rules of Appellate
Procedure).


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another worker. Jasper blocked appellant’s path. Jasper told appellant to leave the
bar and appellant told Jasper to shut up. Appellant then slapped Jasper on her
cheek and eye, causing a stinging sensation and redness.

      Jasper again informed appellant that she needed to leave the bar, telling her
to “get the hell out of my bar.” Jasper then placed her arm on appellant’s shoulder
to usher her toward the door. Upon being escorted out of the bar, appellant
dropped the receipt booklet on the floor. Appellant then slapped Jasper again and
called her a “fat black bitch.” Appellant’s husband arrived on the scene during the
altercation and he helped lead appellant out of the hotel. Appellant continued
talking at Jasper the entire time she was being led out of the hotel.

      The Galveston Police Department arrived on scene after appellant had
departed the hotel. The police were unable to locate appellant, so they took a
report, and forwarded the matter to investigations.              Detective Michelle
Sollenberger was assigned the case. Detective Sollenberger contacted appellant to
discuss the assault. Appellant, in the first phone conversation, told Detective
Sollenberger that Jasper was a bully and threatened her.           Appellant did not
however, tell Detective Sollenberger that Jasper hit her, or that her actions that
night were in self-defense. The next day, appellant left a voicemail message for
Detective Sollenberger indicating that she wanted to make an official complaint
about Jasper’s conduct. Detective Sollenberger returned appellant’s call, in this
second phone conversation appellant for the first time stated that Jasper had pushed
and hit her.

      At the conclusion of the evidence, the jury convicted appellant of an assault
on Jasper.




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                                     ANALYSIS

       Appellant raises two points of error, both related to the jury charge. First,
appellant argues that the definition of “intentionally” was not limited to result-
oriented conduct as required for assaultive offenses. Next, appellant argues the
trial court improperly charged on the burden of self-defense.

I.     Standard of review
        The trial judge must “deliver to the jury . . . a written charge distinctly
setting forth the law applicable to the case.” Tex. Code Crim. Proc. Ann. art.
36.14. “This charge should include, at a minimum, all of the law applicable to the
criminal offense that is set out in the indictment or information, as well as general
admonishments, including . . . the presumption of innocence, proof beyond a
reasonable doubt, unanimity of the verdict, and so forth.” Mendez v. State, 545
S.W.3d 548, 552 (Tex. Crim. App. 2018) (quoting Delgado v. State, 235 S.W.3d
244, 249 (Tex. Crim. App. 2007) (internal quotations omitted). These matters are
always the “law applicable to the case.” Id. The trial judge has a sua sponte
obligation to instruct on these matters because “the trial judge is ultimately
responsible for the accuracy of the jury charge and accompanying instructions.”
Id. “A consequence of this sua sponte duty is that, even if the defendant ‘fails to
object’ to some error in the court’s charge on the ‘law applicable to the case,’ the
resulting claim of jury-charge error is not necessarily forfeited on appeal.”
Mendez, 545 S.W.3d at 552 (quoting Delgado, 235 S.W.3d at 249); see also Kirsch
v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012) (“However, all alleged jury-
charge error must be considered on appellate review regardless of preservation in
the trial court.”).




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         However, in some instances it has been found the trial court has no duty to
instruct, such as on “unrequested defensive issues,”2 “lesser-included offenses,”3
and “burden of proof concerning an extraneous offense.”4 If on its own initiative
the trial court instructs on a defensive issue, it must do so correctly and any charge
error is “‘subject to review under Almanza,’ rather than precluded from review
under Posey.” Mendez, 545 S.W.3d at 552-53 (quoting Barrera v. State, 982
S.W.2d 415, 416 (Tex. Crim. App. 1998)).

          We review alleged charge error by considering two questions: (1) whether
error existed in the charge; and (2) whether sufficient harm resulted from the error
to compel reversal. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If
a jury charge is erroneous, a harm analysis hinges upon whether a defendant
objected to the charge. See Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim.
App. 2016); see also Igo v. State, 210 S.W.3d 645, 647 (Tex. Crim. App. 2006). If
a defendant objected to the erroneous jury charge, reversal is required if we find
“some harm” to his rights. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
App. 1984) (op. on reh’g)). If the defendant did not timely object, reversal is
required “only if the error was so egregious and created such harm” that the
defendant did not have a “fair and impartial trial.” Id.

         The egregious harm standard is met “‘if it affects the very basis of the case,
deprives the defendant of a valuable right, or vitally affects a defensive theory.’”
State v. Ambrose, 487 S.W.3d 587, 597 (Tex. Crim. App. 2016) (quoting Marshall,



2
    Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998).
3
    Tolbert v. State, 306 S.W.3d 776, 781 (Tex. Crim. App. 2010).
4
    Delgado, 235 S.W.3d at 254.


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479 S.W.3d at 843). This standard is difficult to meet and is a case-by-case
determination. Marshall, 479 S.W.3d at 843.

      In evaluating whether a defendant was harmed by an erroneous jury
instruction, the degree of harm must be measured by the following factors: (1) the
entire jury charge; (2) the state of the evidence; (3) the parties’ arguments; and (4)
all other relevant record information. Arrington v. State, 451 S.W.3d 834, 840
(Tex. Crim. App. 2015); see French v. State, 563 S.W.3d 228, 237 (Tex. Crim.
App. 2018) (“Whether jury charge error is preserved or not, the degree of harm
resulting from the error must be measured in light of all four factors identified in
Almanza.”). Neither party bears the burden to show harm or lack thereof as a
result of the error. Marshall, 479 S.W.3d at 843.

II.   There was no egregious harm when the trial court erroneously
      instructed the jury on the full statutory definition of “intentionally” in a
      result-oriented offense.
      In a jury charge, the language in regard to the culpable mental state must be
tailored to the conduct elements of the offense. Price v. State, 457 S.W.3d 437,
441 (Tex. Crim. App. 2015). A trial court errs when it fails to limit the language in
regard to the applicable culpable mental states to the appropriate conduct element.
Id. Assault by causing bodily injury is a result-oriented offense. Bin Fang v. State,
544 S.W.3d 923, 928 (Tex. App.—Houston [14th Dist.] 2018, no pet.).

      Here, the jury charge used the following definition for “intentionally”:

      A person acts intentionally, or with intent, with respect to the nature
      of her conduct or to a result of her conduct when it is her conscious
      objective or desire to engage in the conduct or cause the result.
      (emphasis added)
      Appellant contends the trial court erred when it included the bolded portions
above. By using a definition of “intentionally” that included both result-oriented


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conduct and nature-of-the-conduct we conclude the trial court erred.5 As there was
error in the jury charge and there being no objection, we apply the egregious harm
standard.

       In rare cases there are situations where, due to the recurring nature of the
alleged harm, the Court of Criminal Appeals has spoken as to whether there can be
egregious harm negating the need for the Almanza factor analysis. “Where the
application paragraph correctly instructs the jury, an error in the abstract
instruction is not egregious.” Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim.
App. 1999); Gilbert v. State, 494 S.W.3d 758, 768 (Tex. App.—Houston [14th
Dist.] 2016, pet. ref'd). This is one of those cases.

       The erroneous definition was stated in paragraph III, while the application
paragraph was labeled IV. In the application paragraph, the jury was instructed to
convict if appellant “intentionally, knowingly, or recklessly cause[d] bodily
injury.” Therefore, as the application paragraph correctly instructed the jury and
the erroneous definition was found only in an abstract paragraph, the error cannot
be egregious harm. Medina, 7 S.W.3d at 640.

       We overrule point of error one.

III.   The jury was properly charged on the burden of self-defense and
       therefore there was no error in the charge.
       Appellant contends that the self-defense instruction found in the charge was
erroneous because it failed to properly place the burden of proof on the State.
Appellant argues that the jury charge should have contained the following
instruction: “and that the prosecution has the burden of proving beyond a
reasonable doubt that the Defendant did not act in self defense.” Appellant asserts

5
 The definitions of knowingly and recklessly were appropriately limited to result-oriented
conduct.

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that “the State must persuade the jury beyond a reasonable doubt that the defendant
did not act in self-defense.” Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim.
App. 1991).

      Appellant’s reliance on Saxton is misplaced. Saxton involved a sufficiency
challenge to a murder conviction where self-defense was claimed. In Saxton, the
Texas Court of Criminal Appeals, stated:

      Arguably, § 2.03(d) appears to impose a burden on the State to
      directly refute a defense raised at trial . . . but the Practice
      Commentary to § 2.03(d) and other case law indicate otherwise . . . .
      [T]he State has the burden of persuasion in disproving the evidence of
      self-defense. That is not a burden of production, i.e., one which
      requires the State to affirmatively produce evidence refuting the self-
      defense claim, but rather a burden requiring the State to prove its case
      beyond a reasonable doubt.
Saxton, 804 S.W.2d at 913; see Tex. Penal Code § 2.03(d) (“If the issue of the
existence of a defense is submitted to the jury, the court shall charge that a
reasonable doubt on the issue requires that the defendant be acquitted.”). Further,
in Saxton, the Court of Criminal Appeals discussed the distinction between the
burden of persuasion versus burden of production. 804 S.W.2d at 913. It went on
to hold that the State has the burden of persuasion to prove its case beyond a
reasonable doubt, and a “verdict of guilty is an implicit finding rejecting the
defendant’s self-defense theory.” Saxton, 804 S.W.2d at 914.

      The State is not required to negate the existence of the defense. See Tex.
Penal Code § 2.03(b) (“The prosecuting attorney is not required to negate the
existence of a defense in the accusation charging commission of the offense.”).
However, the trial court is required to instruct the jury that reasonable doubt as to
the existence of the defense shall require acquittal. See Tex. Penal Code § 2.03(d).



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In paragraph IV, the application paragraph, the trial court, as required by Texas
Penal Code § 2.03(d), instructed the jury as follows:

      Therefore, if you find beyond a reasonable doubt that the defendant,
      LISA ANN BARFIELD did did [sic] intentionally, knowingly, or
      recklessly cause bodily injury to ASHLEY JASPER, by slapping
      ASHLEY JASPER with Defendant's hand, but you further find, or
      have a reasonable doubt thereof. that the defendant was justified
      in using force against ASHLEY JASPER when and to the degree
      she reasonably believed the force was immediately necessary to
      protect herself against ASHLEY JASPER use or attempted use of
      unlawful force, you will find the defendant not guilty. (emphasis
      added).
The trial court properly instructed the jury that the State held the final
burden of persuasion on the issue of self-defense, and that if there was a
reasonable doubt on that issue it was to find the defendant not guilty.
Because the trial court properly instructed the jury on the law applicable to
the case, there is no error in the charge as to the self-defense burden
instruction. Concluding there is no error in the charge, we need not consider
the Almanza analysis.

      We overrule point of error two.

                                   CONCLUSION

      Having overruled appellant’s issues on appeal, we affirm the trial court’s
judgment.



                                        /s/       Jerry Zimmerer
                                                  Justice


Panel consists of Justices Wise, Zimmerer, and Spain.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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