Opinion issued December 18, 2014




                                   In The

                            Court of Appeals
                                   For The

                        First District of Texas


                            NO. 01-12-00688-CR


                      RAUL RODRIGUEZ, Appellant

                                     V.

                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 178th District Court
                          Harris County, Texas
                      Trial Court Cause No. 1348372


                              OPINION

     A jury convicted Appellant Raul Rodriguez of murder and sentenced him to

40 years’ confinement, rejecting his claim that he shot his neighbor, Kelly

Danaher, in self-defense. Rodriguez and the State agree that the trial court’s
charge included erroneous instructions regarding a qualification on self-defense,

but they disagree about whether reversal is warranted. We conclude that it is, and

we reverse and remand for a new trial.

                                  Background

      In the early morning of May 2, 2010, Harris County police responded to

reports of a weapons disturbance in a rural neighborhood. Upon arriving at the

scene, they discovered that the complainant, Danaher, had been shot in the street.

Two others were struggling to hold down Rodriguez, who had fired the shots.

Everyone other than Rodriguez had been at a party inside. Danaher, the host of the

party, died at the scene.

      Rodriguez’s defensive theory was that he fired his handgun in self-defense

after the partygoers threatened him. The jury rejected Rodriguez’s claim after a

two-week trial during which it heard the testimony of numerous witnesses and

observed an audio and video recording of the incident that Rodriguez captured on

his video camera.




                                         2
The video recording

      Much of the video recording consists of Rodriguez filming the party from

across the street, where he was standing at the side of the road, commenting about

the noise level, and shining a flashlight in the direction of the party.

      About fifteen minutes into the recording, James Storm, Danaher’s father-in-

law, approached Rodriguez in a truck.1 Storm and Rodriguez argued about the

noise level and, eventually, a few partygoers, including Danaher, approached them.

      As Danaher approached, Rodriguez said, “You need to stop right there.

Don’t come any closer, please.” Danaher continued walking towards Rodriguez

and responded, “I, you’re telling me what to do?” Storm added, “Don’t tell us to

stop coming close to you.”

      With Danaher still approaching, and two other partygoers now nearby,

Rodriguez said, “I’m telling you, I’m telling you to stop. I said stop right now, or I

will shoot you! Stop! Get back!” A partygoer yelled, “Back up Kelly” and

Rodriguez repeated, “Get back!”         Danaher can be seen backing away from

Rodriguez with his hands up, saying “I ain’t got nothing.” Rodriguez responded,

“Y’all are drunk. Get away from me.”


1
      Danaher and his family lived in the home, which was owned by Storm.


                                           3
      Danaher moved across the street from Rodriguez, where other partygoers

had gathered and then asked Rodriguez, “You pulled a gun on me?” Rodriguez

acknowledged that he had, adding “I told you to stop.” Then, from opposite sides

of the road, Danaher and Rodriguez continued arguing about why Rodriguez drew

the gun, while Storm told the partygoers to call the police:

      Danaher: I haven’t done nothing to you.

      Rodriguez: My life is in danger. You got weapons on you.

      Danaher: Your life’s in danger?

      Rodriguez: Stay away from me. You’re over here cussing at me and
      hollering.
      ...

      Rodriguez: Get away from me. Keep it down. I got everything
      videotaped.

      Storm: Yeah, call the cops on this jack-off. He’s down here out in
      the middle of the street with a gun.

      Rodriguez: Yeah, I told you to stop. I asked you to stop.

      Danaher: And what happened? I stopped.

      Rodriguez: No, you stopped after I drew my weapon.

      Danaher: And I pulled back.

      Rodriguez: You stopped after I drew my weapon. I asked you to stop
      and get back. . . . I asked you to turn this crap down.


                                          4
      Rodriguez and Danaher continued arguing from opposite sides of the road

about the volume of the music, and Rodriguez called the police, to whom he

admitted having drawn his gun, and asserted that he was in fear for his life:

      Yes, my name is Raul Rodriguez. I called again. I had to draw my
      weapon on somebody because I had, I told them to stop. They were
      drunk, they coming at me. I told them to stop. They kept coming and
      I drew my weapon. Then they stopped, I put my weapon up but now
      they’re saying I’m sitting there waving my gun and everything and
      I’m not. I’m videotaping everything right now. . . .

      You know, it’s just me against everybody. I’ve got, I’ve got . . . Ah
      look, there’s about 15 people here. Look, I’m in fear for my life right
      now. I’m in very . . . That’s why I drew my weapon. I’m in fear for
      my life. Please help me now. . . . They’re going to kill me.

      Storm then initiated another exchange with Rodriguez. Storm said that

Rodriguez would go to jail for drawing his gun, and Rodriguez again asserted

“well, I was in fear for my life.” Storm challenged Rodriguez to a fist fight,

saying, “You drop the gun and let’s go ahead and duke it out mother f__er.” As

the exchange continued, Rodriguez, still on the phone, told the dispatcher, “Listen.

Now they’re wanting to kick my ass. And now they’re calling me mother f__er

and they want to kick my ass and all this other stuff.”

      The video depicts another partygoer starting to cross the street toward

Rodriguez. Danaher stopped him, saying, “Hey, hey, hey, Ricky . . . . No, no, no,

no. This dude is a f__ing idiot, he will shoot you. He’s an idiot.”

                                          5
      Meanwhile, Rodriguez continued talking to the dispatcher:

      I’ve got about 15 people here, they’re wanting to kick my ass. They
      want to beat me down. I had to draw my weapon to stop them to keep
      them from coming to me. I felt my life was in danger, I drew my
      weapon and then they stopped. I told them to get back. I told them to
      just to turn it down and then, they started cussing, saying we’re going
      to kick his you know, f’ing ass and all this other stuff, calling all kinds
      of names and everything cuz I’m, and I says look, I’m videotaping all
      this right now. . . . And I mean, I’m scared to death here.

      Storm told Rodriguez, “I tell you what pal, you pulled a gun on the wrong

mother f__er, ok? . . . You remember that.” Storm then drove his truck up the

driveway toward the house.

      Danaher continued arguing with Rodriguez: “You’re gonna flash your God

damn gun. You’re gonna flash your gun?” Danaher again began walking toward

Rodriguez, but was stopped by Wilcox, who held him back, saying, “No, no, no.”

      Rodriguez told the dispatcher, “Ok. They’re going to escalate this. . . .

They’re going to the house to get something to shoot me with.” As Storm drove

toward the house, Rodriguez said, “Ok look, I’m going to defend myself. . . . I

have to defend myself. I’m gonna have to defend myself.” After hearing a loud

bang from up the driveway, Rodriguez exclaimed, “Oh s__t.”

      The video recording became dark, but a partygoer can be heard yelling,

“Don’t even do it. Brandon, Brandon, don’t do it.” Another voice said, “This is


                                          6
bulls__t. You don’t pull a gun on me.” Rodriguez pleaded with the dispatcher to

help, asserting that the partygoers were going to try to kill him:

      It’s about to get out of hand, sir. Please help me. Please help me sir.
      My life is in danger now. He’s about to, he says he’s about to go in
      the house, he’s gonna be more than equal than me. Now I’m standing
      my ground here. Now these people are gonna try and kill me.

      Toward the end of the recording, the partygoers continued arguing with

Rodriguez. Danaher again asked, “You pull a f__ing gun on me at my house?”

Wilcox then interjected, saying, “You got a gun in your f__ing . . . you got a gun?

. . . What are you, hopped up on coke?” Danaher warned Wilcox, “No, no, no,

he’s videoing us,” and Wilcox responds, “I know he is.” Danaher said, “Mother

f__er pulled a gun on me.”

      In the final moments of the recording, Rodriguez told the dispatcher, “Look,

I’m not losing to these people any more. I’m just gonna just tell them to stay back.

They’re drunk. They’re swearing.” Then a partygoer later identified as Ricky

Johnson moved toward Rodriguez and yelled, “Ha ha ha!” Rodriguez dropped the

camera, fired his gun and yelled, “God dang it!”

Testimony of partygoers

      Five partygoers testified at trial. In general, they testified that as the party

was winding down, a few of them noticed a flashlight on the road and walked to

the end of the driveway, where they discovered Storm and Rodriguez arguing.
                                          7
Only a few partygoers were present when Rodriguez first drew, then put away, his

handgun, but multiple partygoers arrived by the time Rodriguez fired.          The

partygoers acknowledged that Johnson had stepped into the road, waved his arms,

and laughed loudly in the seconds before Rodriguez fired. But they maintained

that neither Johnson nor anyone else crossed the center line of the road before

Rodriguez fired.

      a. James Tyler

      Tyler, Danaher’s best friend, testified that Danaher had not yet stepped into

the road when Rodriguez first drew his gun, but Tyler acknowledged that he did

not see Rodriguez draw the gun. On cross-examination, Tyler admitted that after

he watched the video, he realized that Danaher was in the road when Rodriguez

first drew his gun. According to Tyler, Rodriguez put the gun down when Danaher

backed off, but Tyler did not see where Rodriguez put the gun.

      Tyler testified that no one was talking about rushing Rodriguez or taking the

gun from him, but he acknowledged that in the moments before Rodriguez fired,

Johnson walked towards Rodriguez at a “pretty rushed pace,” “cackling and

laughing with his arms waving in the air, like he thought it was funny, being goofy

for the camera, and then [Danaher] followed immediately behind him.” According




                                        8
to Tyler, Danaher moved toward Rodriguez to try to stop Johnson, and Tyler

moved forward to pull Danaher back, but Danaher had already been shot.

      Tyler testified that when the shots were fired, he was still standing at the

edge of Storm’s driveway, and Danaher and Johnson were “maybe a step and a

half, two steps into the street,” but neither had crossed the center line on the road.

Tyler acknowledged that in his statement to police, he said that Johnson “kind of

ran to [Rodriguez] to apprehend him and take [the gun] from him.”

      b. Marshall Stetson

      Stetson, who is Danaher’s wife’s cousin, testified that as soon as he and

Danaher walked out to the street, Rodriguez drew his gun and told them to get

back. He testified that they were not in the street, but in the middle of the

driveway, when Rodriguez first drew the gun.

      Stetson testified that when they approached, he could “immediately see” that

Rodriguez had a gun on his left side. But he also testified that “when he pulled it

straight out on us, that’s the first time I seen it in the hand. He was pulling it out.”

According to Stetson, Rodriguez pulled the gun from a holster on the outside of his

pants, he did not see him move any clothing before drawing the weapon out, and

the gun was “not concealed” and was “outside his shirt.”




                                           9
      Stetson did not remember Johnson laughing in the moments before

Rodriguez fired, but he was about an arms-length behind Johnson, on the phone

with the police, when Johnson took “two steps” toward Rodriguez and the shooting

began. Stetson grabbed for Johnson’s shirt, but Johnson fell on the other side of

the street, where Rodriguez was standing. According to Stetson, Johnson had not

crossed over the center line of the road and was still 10 to 12 feet from Rodriguez

when Rodriguez fired. Stetson ran towards Rodriguez, grabbed for the gun and

was himself shot in the buttocks. He struggled with Rodriguez until Wilcox and

Storm came to help.

      On cross-examination, Stetson admitted that he told police in his initial

statement that Johnson took it upon himself to try to wrestle the gun away from

Rodriguez and was going after Rodriguez when Rodriguez fired. Rodriguez’s

counsel cross-examined Stetson about whether Rodriguez’s gun had been

concealed:

      Rodriguez’s counsel: Now, when you—when you first walked down
      that driveway and you and Kelly [Danaher] came upon Raul, however
      far away you were from him, I believe you—in—in response to
      questioning from Ms. Logan, you said that—that the clothing that—
      that Raul had on made it so that you could see his weapon. Is that
      what you're saying?

      Stetson: No. I said the way he pulled his gun so quick, he didn’t—


                                        10
      Rodriguez’s counsel: And that’s—this is kind of an important point,
      and that’s why I’m bringing it up.

      Stetson: All right.

      Rodriguez’s counsel: I believe that you said—and correct me if I’m
      wrong. I believe you said in your testimony earlier today, when he
      pulled it straight out, it was the first that you could see it?

      Stetson: Yeah.

      Rodriguez’s counsel: All right. So your—your testimony is that the
      first time you saw the weapon is when Raul pulled it out and showed
      it to you?

      Stetson: Yeah, showed it to us.

      c. James Storm

      Storm, Danaher’s father-in-law, testified that around midnight, he saw

someone standing in the road and stopped. According to Storm, when Danaher

walked up and started talking to Rodriguez, Rodriguez pulled his gun, even though

Danaher was not threatening or aggressive. Storm was “pissed off” when he saw

Rodriguez draw a gun. Although Rodriguez was saying he was in fear of his life,

Storm “didn’t know what he feared.”

      Storm eventually drove up the driveway because he believed everyone was

going to let the police handle the situation. When he was walking across his porch

to the front door, he heard three gunshots, and turned and ran back towards the

road. Storm denied that he was going in the house to get a gun.
                                        11
      d. Ricky Johnson

      Johnson testified that he was intoxicated, and he did not remember the

details of the incident.2 He did not know who had shot him, and he had no

memory of anything that happened before he was shot.

      Johnson gave a statement 17 days after the shooting, which contained more

detail. Johnson admitted that his statement was based on his own recollection free

from outside influences, because he had not talked to other witnesses at the time he

gave it. In the statement, Johnson said that some people appeared to be arguing by

the road, and that he remembered a man standing in the road, but that he did not

see a gun. According to Johnson’s statement, he was “pretty sure” that when he

got to the end of the driveway, the man said take two more steps and I’ll shoot, and

Johnson took two more normal steps. But Johnson also asserted in his statement

that he was 20 or 25 yards from Rodriguez when Rodriguez fired, and Johnson

disagreed that the video indicated he was much closer.

      e. Brandon Wilcox

      Wilcox testified that he walked toward the road when he heard arguing and

learned that someone had a gun. When Wilcox approached the road, he only saw


2
      Johnson was placed in a sedated coma for several days after the incident. The
      coma was induced with Propofol, which can cause amnesia.

                                        12
Rodriguez’s flashlight and video camera, and did not know at the time whether

Rodriguez had drawn a gun.

      Wilcox knew that others had called the police and believed they were on

their way. He saw a flash and a pop, and he ran behind Stetson towards Rodriguez.

Stetson fell down, and Wilcox ended up on top of Rodriguez. Wilcox did not see

Johnson charge Rodriguez, and believed he would have seen it if it happened.

      Wilcox did not recall any discussion among the partygoers about rushing

Rodriguez. He testified that when someone on the video recording said, “Brandon,

Brandon, don’t do it,” it was probably in response to Wilcox’s comment that

Rodriguez “need[ed] his ass kicked.”

Testimony of officers, investigators, & medical personnel

      Deputy J. Soto with the Harris County Sheriff’s Office testified that he did

not smell alcohol on Rodriguez, but Wilcox, who had been holding down

Rodriguez, smelled of alcohol and slurred his speech. Deputy Whitlock, who

accompanied Deputy Soto, testified that partygoers were intoxicated.

      Detective J. Brown of the Harris County Sheriff’s Office testified that

Rodriguez had a concealed handgun license, although Brown did not recall seeing

the license itself. When Brown arrived at the scene, Rodriguez “still had a nylon

holster on his belt.” Brown testified that Rodriguez reported taking ASA,

                                       13
Lisinopril, Norco, Paxil, methadone, Effexor, and Xanax, but Brown also testified

that he did not believe Rodriguez was intoxicated.

      As part of the ensuing investigation, Brown and two other detectives

watched the video recording. Brown testified that the initial perception of all three

detectives was that someone was attacking Rodriguez when Rodriguez dropped the

camera and fired. Brown agreed that Rodriguez’s broken leg constituted serious

bodily injury. He testified that some of the partygoers smelled of alcohol and that

some marijuana was found at the party. He also testified that Danaher’s level of

intoxication was “relatively high.”

      Pramod Gumpeni, an assistant medical examiner at the Harris County

Institute of Forensic Sciences, performed Danaher’s autopsy. Danaher had two

gunshot wounds, one to the chest and one to the right leg. Gumpeni concluded,

based on the lack of stippling on Danaher’s skin, that the gun was at least 18 to 24

inches away from Danaher when it was fired, but he admitted that he did not test

Danaher’s shirt for stippling or gunpowder residue.3        Gumpeni testified that

Danaher had a blood alcohol content of .21.




3
      According to Gumpeni, stippling results when gunpowder particles contact the
      skin.

                                         14
Testimony of neighbors

      a. Ken Ellis

      Ellis, who lived across the street from Rodriguez, testified that on the night

of the party, he was on his porch around ten minutes before midnight and could

hear music playing at Storm’s house. Ellis saw Rodriguez leaving his property and

shouting “shut it down” towards Storm’s house. According to Ellis, Rodriguez

was waving his flashlight and walking angrily up the street. Ellis heard gunshots

about 10 or 15 minutes later.

      b. Terry Hackathorn

      Hackathorn, who lived with Ellis, testified about her conversation with

Rodriguez two months before the shooting in which Rodriguez encouraged her to

get a concealed handgun license. She described Rodriguez as “very self-confident,

very assured” and “excited” during the conversation:

      He had suggested I get hand—a concealed handgun license. And I
      told him I didn’t want one. But he told me it would be my benefit,
      because if I had a handgun and if I was in public anywhere, then if
      anybody was, you know, bothering me and if I needed to shoot
      somebody, that as long as I told the authorities that I was in fear for
      my life and that I needed to defend myself, and that I believed they
      had weapons and I stood my ground. And so I shot the son of a bitch.

      Prosecutor: And he said that you could “shoot the son of a bitch”?

      Hackathorn: Yes.

                                        15
       Prosecutor: Did he specifically say to you, to use the words “in fear
       of your life”?

       Hackathorn: Yes.

       Prosecutor: And did it surprise you when he said this?

       Hackathorn: No.

       Prosecutor: Okay. And why not?

       Hackathorn: Because he always stayed up-to-date on the law changes
       when it came to owning handguns.

       c. Pete Fornols

       Fornols lived between the Danahers and Rodriguez. On the night of the

party, Rodriguez called Fornols three times before 8:00 p.m. Rodriguez asked

whether Fornols could hear “all of the loud s__t” and whether Fornols would go

with Rodriguez to “put a stop to this s__t” if it kept going on. Rodriguez told

Fornols that he “would have [his] back,” but Fornols “did not want to be a part of

it.”

       Rodriguez went to Fornols’s house around 8:30 p.m. According to Fornols,

Rodriguez was “rambling on about the noise and that . . . if I would go down there

with him, that once again that he would have my back . . . .” Fornols testified that

Rodriguez seemed “aggressive. His eyes were bulgy, and he was in a—almost like

a frantic stage, like, you know, he was just about to pop.” Fornols testified that

                                        16
Rodriguez had two weapons on him when he visited at 8:30: one handgun in the

front of his pants, and one in the back.    They were outside his t-shirt, which was

tucked in, and in “plain sight.”

      Fornols spoke to Rodriguez on the phone again after his 8:30 visit, and

Rodriguez was agitated that the police who had responded to the noise complaints

“didn’t do s__t. They came out here, they sat and they drove off.” Rodriguez

returned to Fornols’s house around 10:30 p.m. and asked Fornols to call the police

to complain about the noise. Fornols placed the call anonymously, only to try to

calm Rodriguez.

      Rodriguez called Fornols again at 11:13 p.m., 12:01 a.m. and 12:11 a.m., but

Fornols did not answer. When Fornols heard three gunshots around 20 minutes

after midnight, he looked out his window into Rodriguez’s backyard to see if he

was out there “shooting his gun off like he’s done a lot.”

      Fornols also testified about his interaction with Rodriguez on the day before

the party. Danaher had come over to Fornols’s house to borrow some tools.

Rodriguez arrived within two minutes after Danaher left and asked Fornols, “What

did that cocksucker want?” Fornols said that Danaher had borrowed some tools,

and Rodriguez responded, “I wouldn’t loan that son of a b__ch sweat off my balls




                                           17
if he was dying of thirst. He’s one of the son of a b__ches that keep us awake at

night with loud music.”

                                      Discussion

      Rodriguez argues that the trial court’s guilt-innocence charge erroneously

abrogated his justification defense in that it included incorrect and confusing

instructions regarding a qualification on self-defense. The State concedes that

there was charge error, but argues that the errors did not harm Rodriguez because

he was not entitled to a self-defense instruction in the first instance.

A. Standard of Review

      In analyzing a jury-charge issue, our first duty is to decide if error exists.

See Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh’g);

Tottenham v. State, 285 S.W.3d 19, 30 (Tex. App.—Houston [1st Dist.] 2009, pet.

ref’d). Only if we find error do we then consider whether an objection to the

charge was made and analyze for harm. Tottenham, 285 S.W.3d at 30; see also

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).

                                           18
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). However, when the charging error is not preserved “and the accused

must claim that the error was ‘fundamental,’ he will obtain a reversal only if the

error is so egregious and created such harm that he ‘has not had a fair and impartial

trial’—in short ‘egregious harm.’” Almanza, 686 S.W.2d at 171; see Nava v. State,

415 S.W.3d 289, 298 (Tex. Crim. App. 2013) (egregious harm “is a difficult

standard to meet and requires a showing that the defendants were deprived of a fair

and impartial trial.”). Fundamental errors that result in egregious harm are those

which affect “the very basis of the case,” deprive the defendant of a “valuable

right,” or “vitally affect his defensive theory.”     Almanza, 686 S.W.2d at 172

(citations and quotations omitted).

      When considering whether a defendant suffered harm, the reviewing court

must consider: (1) the entire jury charge; (2) the state of the evidence, 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. Id. at 171. The reviewing court must conduct this examination of the

                                          19
record to “illuminate the actual, not just theoretical, harm to the accused.” Id. at

174; see Nava, 415 S.W.3d at 298 (record must disclose “actual rather than

theoretical harm”).

B. Applicable Law

      Texas Penal Code Section 9.31(a) provides 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.” TEX. PENAL CODE ANN. § 9.31(a) (West 2011).

Penal Code Section 9.31(b)(5)(A) qualifies this defense. It states that the use of

force against another is not justified “if the actor sought an explanation from or

discussion with the other person concerning the actor’s differences with the other

person while the actor was carrying a weapon in violation of Section 46.02.” TEX.

PENAL CODE ANN. § 9.31(b)(5)(A) (West 2011).

      A person violates Section 46.02 of the Penal Code if he intentionally,

knowingly, or recklessly carries on or about his person a handgun, illegal knife, or

club if the person is not (1) on the person’s own premises or premises under the

person’s control; or (2) inside of or directly en route to a motor vehicle or

watercraft that is owned by the person or under the person’s control. See TEX.

PENAL CODE ANN. § 46.02(a) (West Supp. 2014). Importantly, however, Section

                                        20
    46.02 does not apply to a person who “is carrying a concealed handgun and a valid

    license issued under Subchapter H, Chapter 411, Government Code, to carry a

    concealed handgun.” TEX. PENAL CODE ANN. § 46.15(b)(6) (West Supp. 2014).

    C. Analysis

          1. Errors in the charge

          The charge spanned 16 pages. The first three pages set forth the abstract law

    of murder and applied the law of murder to the case. The next five pages set forth

    the abstract law on self-defense and deadly force and applied this law to the case.”4

    Next came three pages of instructions regarding two qualifications on self-defense:

    the “discussion of differences” qualification and provocation. The balance of the

    charge contained general instructions and an extraneous offense instruction.

          Rodriguez argues that the trial court’s instructions regarding the “discussion

    of differences” qualification contained multiple errors.            Among other things,

4
         One paragraph on page 4 instructed the jury not to consider whether Rodriguez
         failed to retreat, noting that one “who has not provoked the person against whom
         deadly force is used, and who is not engaged in criminal activity at the time the
         deadly force is used is not required to retreat before using deadly force.” The
         parties devote little attention to this instruction, but we find it noteworthy insofar as
         it, implicitly if not explicitly, instructs the jury that Rodriguez did not provoke
         Danaher and that Rodriguez was not engaged in criminal activity at the time he
         used deadly force against Danaher. This was confusing because later portions of
         the charge posed those very questions: page 9 instructed the jury to consider
         whether Rodriguez committed an offense by intentionally failing to conceal his
         handgun or by carrying it while intoxicated, and pages 10-11instructed the jury to
         consider whether Rodriguez provoked Danaher.

                                                 21
Rodriguez complains that the trial court incorrectly instructed the jury on irrelevant

provisions of Penal Code Section 46.035, which defines the offense of unlawful

carrying of a handgun by a license holder. The State agrees that it was error to

include the irrelevant provisions of Section 46.035. We agree with the parties that

the instructions regarding the “discussion of differences” qualification were

erroneous.

      The instructions appeared on page 9 of the charge. It said:

             You are further instructed, as part of the law of this case, and as
      a qualification of the law on self-defense, that the use of force by a
      defendant against another is not justified if the defendant sought an
      explanation from or discussion with the other person concerning the
      defendant’s differences with the other person while the defendant was
      failing to conceal the handgun that he was carrying as a concealed
      handgun license holder, in violation of the law.
             A person commits an offense if, while the person was a holder
      of a license to carry a concealed handgun, the person intentionally
      failed to conceal the handgun.
             A person commits an offense if, while the person was a holder
      of a license to carry a concealed handgun, the person carried a
      handgun and was intoxicated.
             “Handgun” means any firearm that is designed, made, or
      adapted to be fired with one hand.
             If you find from the evidence beyond a reasonable doubt that
      the defendant, Raul Rodriguez, did then and there on May 2 nd, 2010,
      fail to conceal a handgun in violation of the law stated above, before
      seeking an explanation from or discussion with the other person
      concerning the defendant’s differences with the other person, then you
      will find against the defendant on the issue of self-defense.

      The first paragraph tracks much of Section 9.31(b)(5)(A), but modifies its

                                         22
final clause. The purpose of the modification was to account for the fact that

Rodriguez was carrying a handgun “as a concealed handgun license holder” to

whom Section 46.02 would not apply, provided the handgun was concealed. See

TEX. PENAL CODE ANN. § 46.15(b)(6) (noting that section 46.02 does not apply to a

person who “is carrying a concealed handgun and a valid license”). The first

paragraph ends with the phrase “in violation of the law,” which is superfluous and

confusing in light of the two paragraphs that follow.

      The second and third paragraphs on page 9 are based on Section 46.035 of

the Penal Code, which defines the offense of unlawful carrying of a handgun by a

license holder. The second paragraph is based on subsection (a), while paragraph

three was based on subsection (d). See TEX. PENAL CODE ANN. § 46.035(a) (“A

license holder commits an offense if the license holder carries a handgun on or

about the license holder’s person under the authority of Subchapter H, Chapter

411, Government Code, and intentionally displays the handgun in plain view of

another person in a public place.”), (d) (“A license holder commits an offense if,

while intoxicated, the license holder carries a handgun under the authority of

Subchapter H, Chapter 411, Government Code, regardless of whether the handgun

is concealed.”) (West Supp. 2014). The inclusion of both paragraphs was error

because, as the State concedes, “[t]he commission of th[e] offense [of unlawful

                                         23
carrying of a handgun by a license holder] . . . does not alter one’s ability to invoke

the right to self defense . . . .”5 It is a violation of Section 46.02, not Section

46.035, that may abrogate a self-defense claim. See TEX. PENAL CODE ANN.

§ 9.31(b)(5)(A) (discussion of differences qualification on self-defense applies if

the actor was carrying a weapon in violation of Section 46.02). In short, we agree

with the parties that the trial court erred in submitting the second and third

paragraphs on page 9.

      Rodriguez argues that the use in the final paragraph on page 9 of the word

“before” was also erroneous. Section 9.31(b)(5)(A) applies if the actor sought a

discussion of differences “while . . . carrying a weapon in violation of Section

46.02.” See TEX. PENAL CODE ANN. § 9.31(b)(5)(A) (emphasis added). In light of

the evidence that Rodriguez’s handguns were not concealed when he visited

Fornols a few hours before the shooting, Rodriguez argues that the application

paragraph’s use of “before” could have caused the jury to reject Rodriguez’s self-

defense claim based on his failure to conceal his handguns while at Fornols’s

home. The State disagrees, arguing that the jury could not have been misled in this

5
      Indeed, Section 46.035(h) states that it is a defense to a violation of Section
      46.035(a) “that the actor, at the time of the offense, displayed the handgun under
      circumstances in which the actor would have been justified in the use of force or
      deadly force under Chapter 9.” TEX. PENAL CODE ANN. § 46.035(h) (West Supp.
      2014).

                                          24
manner because the paragraph refers expressly to May 2, while the visit to Fornols

took place at 8:30 p.m. on May 1.

      The final paragraph on page 9 expressly referred to failing to conceal a

handgun on May 2nd, 2010. Because well-established law requires us to presume,

in the absence of evidence to the contrary, that the jury followed the trial court’s

instructions, we do not presume that the jury wrongly believed that it could convict

based on Rodriguez’s failure to conceal his handguns at Fornols’s home at 8:30

p.m. on May 1. Reeves v. State, 420 S.W.3d 812, 818 (Tex. Crim. App. 2013)

(generally, in the absence of evidence to the contrary, appellate court assumes that

jury followed charge instructions).

      We do, however, conclude that the use of “before” in the final paragraph on

page 9 is, at a minimum, confusing in light of the use of “while” in the first and

second paragraphs. If the jury believed that Rodriguez acted in self-defense, the

applicability of Section 9.31(b)(5)(A) turned on whether Rodriguez’s handgun was

concealed from the time he sought the discussion of differences until the moment

the jury determined he was justified in using force. Thus, it was critical for the

jury to determine when during the sequence of events Rodriguez failed to conceal

his handgun.

      The charge fell short of making that clear. The first paragraph instructed the

                                        25
jury to consider whether Rodriguez sought a discussion of differences while failing

to conceal the handgun he was carrying as a concealed handgun license holder; the

second instructed it to consider whether Rodriguez failed to conceal while he was a

holder of a license to carry a concealed handgun; and the final paragraph instructed

it to consider whether Rodriguez failed to conceal before seeking a discussion of

differences. This is far from “the way instructions should be—clear, concise, and

to the point.” Reeves, 420 S.W.3d at 817, 818 (function of charge is not merely to

avoid misleading but to lead and to prevent confusion).

      2. Did Rodriguez preserve error?

      Having found error in the charge, we next consider preservation.

Tottenham, 285 S.W.3d at 30. The record reflects that Rodriguez lodged the

following objection to page 9:

            [B]asically, Judge, I think this is improper comment on the
      weight of the evidence. Also, I don’t think the evidence supports this
      charge in this case.
            Specifically, there’s absolutely no evidence that—or credible
      evidence that Raul Rodriguez failed to conceal his firearm or that he
      was intoxicated.
            All right. So let me take both of those if I can, one-by-one.
            Failure to conceal a handgun. There was some testimony from
      Pete—Peter Fornols . . . . And he testified at some point early in the
      evening. This is before the shooting ever occurred or Raul ever went
      over next door. That Raul Rodriguez had two handguns in plain view.
      One was in the front center waistband, one was to his back center
      waistband.
            And—and so that has no relevance as to the time of the
                                        26
      shooting, if Raul was legally carrying a firearm. In other words, at the
      time of self-defense when he shot the weapon, was he unlawfully
      displaying a firearm, that would negate that. And so that testimony
      doesn’t really relate to that at all.
             The only other testimony was, Marshall Stetson said something
      on direct examination about how Raul Rodriguez had a firearm and it
      was visible. And it was a little unclear what he said.
             But Bill Stradley cross-examined him. And he clearly said,
      based on my recollection, that what he meant was, he saw the firearm
      when Raul Rodriguez had actually drawn it on Kelly Danaher. And
      so, therefore, I don't think there’s any credible evidence that Raul—
      and the State’s theory has never been that he didn’t conceal the
      handgun.
             And so with that, I don’t think there’s evidence that supports
      the instruction. And I also think it’s an improper comment on the
      weight of the evidence.

      The State argued in favor of submitting page 9 as it was ultimately

submitted:

             In Section 931(b), Number 5A, it talks about carrying a weapon
      in violation of the law. In order to explain what violation of the law is
      and tracks the statute, that’s where we proposed unlawfully carrying a
      weapon by a concealed handgun license holder.
             And the Court, as you know, is required to put an instruction in,
      if there’s some evidence, whether believable or not. And there was
      evidence by Marshall Stetson and by Pete Fornols, that indicated the
      defendant was carrying a weapon that was visible.
             So if the jury, who is going to be the trier of fact, determines
      that they’re in violation based upon the instruction, that’s their
      decision to make.
      ....

             [I]t tracks the original charge instruction. Tracks the statute and
      since there’s some evidence that in our particular case, the defendant
      has a concealed handgun license. That’s why we clarified it. Because
      if you just give it to the jury in violation of the law, they need to be
                                         27
      instructed on what that law is.

      The trial court then made the following ruling:

              Well, I heard the testimony. And Fornols is one thing, statute is
      another. And he clearly said, “I—first time I saw it is when he pulled
      it out.” But anyway, be that as it may. He said other things too.
              So, the issue’s been raised and y’all are just going to have to
      argue the fact question. But I think the issue’s been raised, so I’m
      going to allow that. Objection’s overruled.

      Error preservation “is not an inflexible concept.” Thomas v. State, 408

S.W.3d 877, 884 (Tex. Crim. App. 2013). “[A]ll a party has to do to avoid the

forfeiture of a complaint on appeal is to let the trial judge know what he wants,

why he thinks himself entitled to it, and to do so clearly enough for the judge to

understand him at a time when the trial court is in a proper position to do

something about it.” Id. (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex.

Crim. App. 1992)).

      Here, Rodriguez argued that page 9 should not be submitted to the jury at

all, because the evidence did not support the submission, and because the

instructions constituted an improper comment on the weight of the evidence. He

argued that the instructions would allow the jury to incorrectly reject his claim of

self-defense based on testimony regarding his alleged failure to conceal during his

visit to Fornols’s house at 8:30 p.m.

      The State responded that the charge should include the violation of law
                                         28
instructions contained in the second and third paragraphs. It argued that Pete

Fornols’s testimony to the effect that Rodriguez’s handguns were not concealed

hours before the shooting was at least some evidence that supported submission of

the instructions it now concedes were erroneous. The trial court agreed with the

State and overruled the objection.       Although Rodriguez did not parse the

instruction and detail each of the errors in it, we conclude that his objection was

sufficient to preserve the error he complains of on appeal. See Clark v. State, 365

S.W.3d 333, 339 (Tex. Crim. App. 2012) (noting that issue preserved without

having been explicitly stated if “there have been statements or actions on the

record that clearly indicate what the judge and opposing counsel understood the

argument to be”); Lankston, 827 S.W.2d at 909 (in issue-preservation context,

there are “no technical considerations or form of words to be used”); see also State

v. Rosseau, 396 S.W.3d 550, 555 (Tex. Crim. App. 2013) (although defendant’s

challenge “could have been more clearly presented,” “magic language” was not

required).

      3. Were the errors harmless?

      Because Rodriguez preserved his complaint, we must reverse unless the

error is harmless. See Almanza, 686 S.W.2d at 171; see also Arline, 721 S.W.2d at

351 (any harm, regardless of degree, is sufficient to require reversal). To gauge

                                        29
harm, we review (1) the entire jury charge; (2) the state of the evidence, 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. See Almanza, 686 S.W.2d at 171.

         a. The entire charge

      Rodriguez argues that the errors on Page 9 harmed him in two ways:

(1) paragraphs two and three allowed the jury to conclude that either Rodriguez’s

intoxication or his failure to conceal a handgun, alone, would render his use of

force unjustified; and (2) the erroneous use of “before” in the final paragraph

allowed the jury to conclude that his use of force was not justified because he

failed to conceal his handguns earlier in the evening, while talking with Fornols.

      As discussed above, the inclusion of the phrase “in violation of the law” in

the first paragraph, followed by paragraphs two and three, which have no place in

the instruction, permitted the jury to find against Rodriguez on self-defense if,

during the discussion of differences, he either (1) “intentionally failed to conceal”

the handgun or (2) was intoxicated. The jury heard Rodriguez admit on the video

recording that he intentionally drew his handgun and, thus, “intentionally failed to

conceal” it during the altercation. Under the trial court’s charge, that bare fact was

sufficient to abrogate Rodriguez’s self-defense claim, regardless of whether the

                                         30
jury believed Rodriguez was justified in using deadly force. Nothing in the charge

ameliorated this problem. Indeed, the final paragraph on page 9 exacerbated it by

referring the jury back to the violations of the law “stated above.”

      The State contends that the errors on page 9 actually benefitted Rodriguez

and increased the State’s burden. It argues that the jury could have believed that it

must find for Rodriguez on the discussion of differences qualification unless the

State showed that Rodriguez intentionally failed to conceal and was intoxicated.

This is a plausible interpretation of the charge, and it could be the one the jury

adopted. While we cannot know how the jury interpreted page 9, we know for

certain—and the State concedes—that it was confusing. This is enough to weigh

in favor of finding some harm. See Reeves, 420 S.W.3d at 818 (function of charge

is to “prevent confusion”).

      b. The evidence

      The second Almanza factor likewise weighs in favor of finding some harm.

Rodriguez conceded that he shot Danaher, and the evidence regarding Rodriguez’s

only defense, self-defense, was conflicting.      On the one hand, the partygoers

uniformly testified that they never got close to Rodriguez, emphasizing that they

did not cross the center line onto Rodriguez’s side of the street before he began

firing. The State also adduced evidence that Rodriguez told Hackathorn that, with

                                         31
the benefit of a concealed handgun license, one could shoot somebody and get

away with it by telling the authorities that she was in fear for her life and needed to

defend herself.    This evidence supported the State’s theory that Rodriguez

manufactured his self-defense claim.

      On the other hand, the evidence showed that before Rodriguez first drew his

gun, Danaher, at least, had crossed the center line and approached Rodriguez, that

Storm and multiple partygoers threatened Rodriguez with bodily injury, and that

Rodriguez in fact sustained serious bodily injury, a broken leg. The evidence also

showed that, immediately before Rodriguez fired, Johnson suddenly and loudly

charged Rodriguez, with his friends following closely behind. Both Johnson and

Stetson fell on the side of the street where Rodriguez had been standing, and the

forensic testimony showed that Danaher, who was behind Johnson, could have

been as close as 18 inches to Rodriguez when he was shot.

      Given the conflicting evidence, we conclude that conviction was not a

foregone conclusion absent the charge error, and that this factor supports reversal.

See, e.g., Burd v. State, 404 S.W.3d 64, 74–75 (Tex. App.—Houston [1st Dist.]

2013, no pet.) (finding harm sufficient to warrant reversal where self-defense was

only issue in case, charge contained error regarding self-defense, and evidence

regarding events that led to shooting conflicted).

                                          32
       c. Counsel’s argument

       The State began its closing by arguing that Rodriguez believed that his

concealed handgun license conferred special privileges and that Rodriguez lied

about fearing for his life. The State then told the jury that Rodriguez had no right

to self-defense because he armed himself, sought an explanation, and did not

retreat:

             Then starting on Page 9 of your charge, will be a portion that
       deals with arming yourself and seeking the difficulty, or seeking an
       explanation for the difficulty.
             This is one of the two factors that you find in this charge that
       takes away this defendant’s right to self-defense. Because he armed
       himself, because he went down the road to seek an explanation,
       because he did not abandon his efforts to get an answer out of Kelly
       Danaher, he has no right to self-defense.

The State thus advanced an incorrect, or at least incomplete, argument regarding

the limitations on Rodriguez’s claim of self-defense.           This argument also

contradicted the instruction on page 4 to the effect that the jury should not consider

Rodriguez’s failure to retreat.

       Defense counsel argued in closing that the handgun was not visible before

Rodriguez drew it. He said: “There’s absolutely no credible evidence in this case

that [Rodriguez] walked over there with a gun on his hip that people saw and then

he pulled it on Kelly Danaher. . . . Raul Rodriguez is in the street and everything

he’s done is legal. It’s a public road. He has his gun concealed. He has a
                                         33
concealed handgun license.”

      Following the defense closing, the State again argued the issue of

concealment:

      They brought up the fact that Marshall Stetson made comments during
      closing—or excuse me, on cross, that he couldn’t see a weapon. Well,
      you’ll remember on direct, Donna asked him, “He pulled it straight
      out. It’s the first time I seen it in his hand.” “Could you tell whether it
      was one of those holsters that goes inside your pants, on the outside or
      the inside?” “It was on the outside.”

      We know from the evidence that he didn’t pull his shirt back. We
      know that he pulled the gun right out. We know that right there, use
      your common sense, he didn’t go down there with a jacket on in May.
      He went down there as a person who knew exactly what he was going
      to do.

      In short, the State, in closing, misstated the law regarding the qualification

on self-defense and highlighted the issue of the handgun’s concealment, which was

erroneously addressed in the charge. The third factor thus weighs in favor of

finding some harm.

      d. Other information in the record

      We find two jury questions also weigh in favor of finding some harm.

During deliberations, the jury asked whether a holster had been “taken into

evidence.” Detective Brown had testified that Rodriguez had a holster on his belt

at the time of the shooting, and Stetson testified that Rodriguez drew his gun from

a holster. However, Fornols testified that, when Rodriguez visited him four hours
                                          34
earlier, Rodriguez’s two guns were in his waistband, and did not mention a holster.

The question suggests that the jury reached and was focused on the issue of

concealment.

      The jury also asked to see Rodriguez’s medical records. Rodriguez argues

that this demonstrates the jury was focused on the question of his intoxication, an

issue wrongly submitted in the third paragraph of page 9. The State points out that

the jury may have wanted the records to verify Rodriguez’s claimed disability. We

cannot and need not discern the reason for the jury’s inquiry; it is enough that the

jury asked for evidence that related to the erroneous intoxication instruction. See,

e.g., Villarreal v. State, 205 S.W.3d 103, 110 (Tex. App.—Texarkana 2006, pet.

dism’d) (jury note was evidence that jury considered erroneous instruction and

supported finding of egregious harm).

      Although all of the Almanza factors point toward the conclusion that the

charge errors harmed Rodriguez, the State argues for the first time on appeal that

Rodriguez was not entitled to a self-defense instruction at all. Therefore, the

State’s argument goes, the errors in the qualification instructions could not have

caused harm. Specifically, the State contends: (1) Rodriguez does not dispute that

he sought a discussion of differences while carrying a weapon; and (2) there is no

evidence that Rodriguez was carrying a concealed handgun or a concealed

                                        35
handgun license as provided by Section 46.15(b)(6); therefore, Section

9.31(b)(5)(A) conclusively applied to prohibit submission of self-defense.

      The State’s argument raises the question of whether it was Rodriguez’s

burden to raise evidence demonstrating that Section 46.15(b)(6) applied. While it

is well-settled that a defendant bears the burden of adducing some evidence to raise

a defense, see, e.g., Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003),

few cases address the burden to adduce evidence to raise an exception to a

qualification of a defense such as Section 46.15(b)(6).

      In post-submission briefing, the parties pointed us to Barron v. State, No.

05-08-00637-CR, 2010 WL 1294078 (Tex. App.—Dallas Apr. 6, 2010, pet. ref’d).

In Barron, the court of appeals held that the trial court properly denied a self-

defense instruction.    Barron, 2010 WL 1294078, at *3. But in Barron, the

evidence established as a matter of law that Barron sought an explanation or

discussion of differences with the complainant while illegally carrying a handgun;

there was “no evidence presented at trial to establish that [Barron] qualified for the

traveling exception or that he held a license to carry the handgun used in the

shooting.” Id. Thus, the court concluded that there was no fact issue raised

regarding Section 9.31(b)(5)(A); Barron was not justified in using force as a matter

of law. Id.

                                         36
      This case is different. First, the State introduced Rodriguez’s concealed

handgun license records and emphasized to the jury that Rodriguez was a

concealed handgun license holder. Second, the State adduced evidence regarding

whether Rodriguez’s gun was concealed. This mattered only if Rodriguez was

licensed to carry the gun and the jury was being asked to decide whether the

handgun was properly concealed. Third, the State proposed the jury instruction

incorporating the Section 46.15(b)(6) exception, and the trial court obliged.

Rodriguez could have and would have tried the case differently (i.e., by offering

additional evidence to raise Section 46.15(b)(6)) if the State had not conducted

itself as if it agreed that a fact issue concerning Section 46.15(b)(6) had been

raised. Because the State conducted itself as it did, it is estopped from reversing

course now. See, e.g., Reed v. State, 14 S.W.3d 438, 442 (Tex. App.—Houston

[14th Dist.] 2000, pet. ref’d) (where State requested defendant undergo psychiatric

examination, State was estopped from claiming on appeal that there was no

evidence to show a bona fide doubt as to defendant’s competence). We therefore

reject the State’s argument that Rodriguez suffered no harm because he was not

entitled to a self-defense instruction in the first instance.6 See id.


6
      The State also relies upon Davis v. State, 276 S.W.3d 491 (Tex. App.—Waco
      2008, pet. ref’d), and Williams v. State, 35 S.W.3d 783 (Tex. App.—Beaumont

                                           37
      In sum, the trial court’s erroneous charge caused Rodriguez some harm

because Rodriguez conceded that he shot Danaher, and his claim of self-defense

was thus the focus of, and, indeed, “the very basis of the case.” Almanza, 686

S.W.2d at 172.     The errors were not cured by other instructions or closing

argument, the evidence on self-defense was conflicting, closing argument

highlighted the issues addressed in the erroneous instructions, and questions from

the jury demonstrated that it focused on the erroneous instructions during

deliberations. See Almanza, 686 S.W.2d at 171; see also Arline, 721 S.W.2d at

351 (any harm, regardless of degree, is sufficient to require reversal).

      We sustain Rodriguez’s first issue. Because we have found that the guilt-

innocence charge error regarding the discussion of differences qualification on

self-defense warrants reversal, we need not consider Rodriguez’s remaining issues.




      2001, pet. ref’d), to support its argument that self-defense should not have been
      submitted. But these cases, like Barron, are inapposite, because in each, the State
      proved as a matter of law that the defendant could not lawfully carry a gun.

                                          38
                                    Conclusion

      We conclude that the charge error related to self-defense, Rodriguez’s sole

defense, was not harmless. Therefore, we reverse the judgment of the trial court

and remand for a new trial.




                                            Rebeca Huddle
                                            Justice

Panel consists of Chief Justice Radack and Justices Massengale and Huddle.

Publish. TEX. R. APP. P. 47.2(b).




                                       39
