      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-17-00542-CR



                               Cynthia Ann Holowatsch, Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
            NO. 76978, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found appellant Cynthia Ann Holowatsch guilty of murder, see Tex. Penal

Code § 19.02, and assessed punishment at confinement for forty-five years in the Institutional

Division of the Texas Department of Criminal Justice, see id. §§ 12.32 (setting punishment range

for first degree felonies), 19.02(c) (stating that offense generally is felony of first degree). In one

point of error, appellant contends that she presented evidence that “she believed force was necessary

to protect another from immediate harm,” and, therefore, that the trial court erred by not instructing

the jury on the defense of a third person. See id. § 9.33 (describing circumstances when “person is

justified in using force or deadly force against another to protect a third person”). For the following

reasons, we affirm the judgment of conviction.
                                           Background1

               Appellant was indicted for “intentionally and knowingly cause[ing] the death of an

individual, namely, Roy Linder III, by shooting him with a deadly weapon to-wit: a firearm” on or

about January 13, 2017. It was undisputed at trial that, on that day, appellant shot Linder with a

handgun, causing Linder’s death. At the time of the incident, appellant was in the process of moving

her possessions out of a home in which she had been renting one of the bedrooms. She had not been

staying in the home for the preceding few weeks, and there was tension between her and other

persons living in the home. The home was owned by Laura Rachel Wilbanks; Wilbanks was

Linder’s girlfriend; Linder and Wilbanks shared the same bedroom; and Wilbanks’s daughter and

Noah Godsil also lived at the home.

               To assist her with the move on that day, appellant brought four men with her

to the home. Just prior to the shooting, appellant was in her bedroom with one of the movers,

Christopher Bradberry, and Linder and another one of the movers, Rahjer Chambers, were having

a “heated discussion” with raised voices in the home’s living room. Linder, unarmed and shirtless,

had just woken up. He came out of his bedroom into the living room and began exchanging words

with Chambers and moving toward him. Linder was upset that men he did not know and did not

expect were in the home and that Chambers was speaking with Linder’s baby who was being held

by Wilbanks at the time. Linder used an ethnic slur about Chambers. When Linder and Chambers


       1
         Because the parties are familiar with the facts of the case, its procedural history, and the
evidence adduced at trial, we provide only a general overview of the facts of the case here. We
provide additional facts in the opinion as necessary to advise the parties of the Court’s decision and
the basic reasons for it. See Tex. R. App. P. 47.1, 47.4. The facts recited are taken from the
testimony and exhibits admitted at trial.

                                                  2
were about four feet apart, appellant came into the living room from her bedroom and, in a

“continuous motion,” pushed Chambers aside and shot Linder in the neck. Although Wilbanks

performed CPR and attempted other efforts to save Linder, he died at the scene within minutes of

being shot. Witnesses to the shooting were Wilbanks, who was holding Linder’s baby and sitting

on a couch in the living room; Godsil, who was also in the living room; and Bradberry, who had

followed appellant out of the bedroom into the living room.

               The jury trial occurred from July 31, 2017, to August 3, 2017.           During the

guilt-innocence portion of the trial, the State’s witnesses included the eyewitnesses Wilbanks,

Godsil, Chambers, and Bradberry; a responding sergeant with the police department who arrived at

the home shortly after the shooting; an officer who had been on “civil standby” at the home at

appellant’s request shortly before the incident; and the medical examiner who performed the autopsy.

The evidence was undisputed that appellant was in her bedroom with Bradberry when Linder and

Chambers began exchanging words; that Linder said the “N word” about Chambers; that Linder was

unarmed and did not use force against Chambers; and that Linder was several feet away from

Chambers when appellant came into the living room from her bedroom and shot Linder in the neck.

               The eyewitnesses Wilbanks, Godsil, Chambers, and Bradberry generally testified

consistently about what happened. Wilbanks testified that Linder and Chambers were about ten feet

apart when they began exchanging words, that Linder pointed his index finger at Chambers but that

Linder did not have anything in his hands or use force against Chambers, and that Linder and

Chambers were about four or five feet apart when appellant “pushed the black guy, and then shot

[Linder].” Wilbanks testified that appellant “come in and shoved [Chambers] out of the way and



                                                 3
then just said—or she said get back [to Chambers], and then took a step forward and pulled the

trigger.” Wilbanks also testified that: (i) she told appellant when appellant arrived at the home that

Linder was there and asleep; (ii) Linder did not exhibit a weapon at any time; (iii) appellant was in

the living room for “[l]ike two seconds” before she fired the shot; and (iv) appellant did not ask any

questions before pulling the trigger. Godsil similarly testified that Linder and Chambers were having

a “heated discussion” but that he did not see Linder swing his arms or hands and that appellant

“almost barreled into” Chambers and said “get back and less than five seconds, like, shot [Linder]”

without giving anyone time to move before pulling the trigger.

               Chambers testified about his verbal exchange with Linder prior to the shooting—that

he could tell Linder had just woken up when Linder walked into the living room, that Linder was

“ranting and raving,” that Linder called him a “nigger,” that Linder was “coming at [him],” and that

he was preparing for a physical fight with Linder, but that Linder never got close enough and that

Chambers did not fear for his safety. Chambers testified that he had been in the army, that he was

capable of defending himself, and that “[w]e all know that” the gun was not necessary to intervene

and that it was “excessive.” He also described how close Linder was to him when appellant

“push[ed] him out of the way,” and told him, “I got this one,” as she was raising the gun, and

Chambers testified that the gun went off in “[s]econds.” Bradberry, who was in appellant’s bedroom

with her when he heard “some argument, loud voice,” described how appellant “got in front” of

Chambers, “and next thing [he knew], she just pull[s] out a gun and shoots [Linder].” He testified

that Chambers and Linder were about four feet apart at that time and that he did not perceive danger

for Chambers—that “[i]f anything was going to happen, it was just going to be a fist fight.”



                                                  4
               The officer, who was at the home for “civil standby” shortly before the shooting,

testified that things were “nice and calm” when he arrived but that he told appellant that he could

only stay twenty minutes and that appellant responded, “Well, after you leave, whatever happens,

happens. History is history.” The evidence showed that appellant shot Linder within a short time

after the officer left and that appellant had not told the officer—or anyone else—that she was

carrying a loaded handgun in her pocket. According to the medical examiner, the gun was within

one to three feet of Linder when appellant shot him in the neck. The State’s exhibits included

photographs of the victim, a hand-drawn diagram of the living room with locations marked for

persons in the room, recorded 911 calls from appellant requesting the civil standby and seeking

assistance shortly after shooting Linder, and recorded 911 calls from Godsil and Chambers shortly

after the shooting.

               The defense theory at trial was that appellant was justified in shooting Linder because

she was “protecting” Chambers. Appellant testified on her own behalf, and she relied on evidence

that Linder was under the influence of drugs and alcohol at the time of his death and that he was

physically larger than Chambers. Appellant testified that she was responsible for Chambers because

he was at the home to help her move and that she pulled the trigger to protect a friend. She testified:

(i) she contacted the police for civil standby because she was “scared” of Linder and afraid of

“physically being hurt”; (ii) that she found him to be “[v]iolent and abusive”; (iii) she was afraid for

Chambers; (iv) she “believed [Linder] was going to hurt” Chambers—that he “may even kill him”;

(v) Linder was “coming at [them],” with his hands “balled up like a fist” and chest “puffed up”;

(vi) Linder had a “raging look” and was “within striking distance”; and (vii) Linder had previously



                                                   5
told her that he was an “MMA fighter” and that his “hands were registered with the police

department.”2 Appellant also testified about prior incidents between the roommates in which she

had called the police, including an incident in which the power was cut off to her bedroom.

                Appellant, however, did not contend that Linder was armed with anything other than

his hands when she shot him or that he had any physical contact with Chambers. She also admitted

that she “pushed [Chambers] back” before shooting Linder; that she told Wilbanks after she shot

Linder that Linder “got what he deserved”; that she had never seen Linder in a physical fight or

assault another person, although she testified that she had seen him punch a dog; and that she did not

tell anyone, including the standby officer, that she had a loaded handgun in her pocket on the day of

the incident.

                The jury found appellant guilty of murder as charged in the indictment. After hearing

additional evidence in the punishment phase of the trial, the jury assessed punishment at confinement

of forty-five years in the Institutional Division of the Texas Department of Criminal Justice. The

trial court thereafter rendered judgment in accordance with the jury’s verdict. This appeal followed.


                                              Analysis

                In her sole point of error, appellant seeks to have her judgment of conviction reversed

and the case remanded to the trial court for a new trial on the ground that there was error in the jury

charge. Appellant contends that the trial court erred by refusing her request to instruct the jury on




       2
         According to appellant, MMA refers to “mixed martial arts, a full combat contact sport.”
Appellant also testified that Linder previously told her that “his hands were registered
legal weapons.”

                                                  6
the defense of a third person and that she was harmed by the trial court’s refusal to include

the instruction.


Standard of Review and Applicable Law

                 We review alleged jury charge error in two steps: first, we determine whether error

exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal.

Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim. App. 2017); Ngo v. State, 175 S.W.3d 738,

743-44 (Tex. Crim. App. 2005). The degree of harm required for reversal depends on whether the

jury charge error was preserved in the trial court. Marshall v. State, 479 S.W.3d 840, 843 (Tex.

Crim. App. 2016); see Tex. Code Crim. Proc. art. 36.19; Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1985) (op. on reh’g) (setting forth procedure for appellate review of claim of jury

charge error).

                 A trial court is statutorily obligated to instruct the jury on the “law applicable to the

case.” Tex. Code Crim. Proc. art. 36.14; Arteaga, 521 S.W.3d at 334. “The issue of the existence

of a defense is not submitted to the jury unless evidence is admitted supporting the defense.” Tex.

Penal Code § 2.03(c); Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003) (placing burden

on defendant of producing “some evidence” to support defense). A defense is raised by the evidence

“if 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); see, e.g., Gamino v. State, 537 S.W.3d 507, 510 (Tex. Crim. App.

2017) (stating that “trial court errs in denying a self defense instruction if there is some evidence,

from any source, when viewed in the light most favorable to the defendant, that will support the

                                                    7
elements of self defense”). “In determining whether a defense is thus supported, a court must rely

on its own judgment, formed in the light of its own common sense and experience, as to the limits

of rational inference from the facts proven.” Shaw, 243 S.W.3d at 658. However, “a judge must

give a requested instruction on every defensive issue raised by the evidence without regard to its

source or strength, even if the evidence is contradicted or is not credible.” Krajcovic v. State,

393 S.W.3d 282, 286 (Tex. Crim. App. 2013) (citing Juarez v. State, 308 S.W.3d 398, 404–05 (Tex.

Crim. App. 2010)).

               As alleged in the indictment, a person commits murder if he intentionally or

knowingly causes the death of an individual. See Tex. Penal Code § 19.02(b)(1). A person,

however, may be justified in using deadly force against another to defend a third person. See id.

§ 9.33. Section 9.33 of the Penal Code sets forth the elements of the defense of a third person:


       A person is justified in using force or deadly force against another to protect a third
       person if:

       (1)     under the circumstances as the actor reasonably believes them to be, the actor
               would be justified under Section 9.31 or 9.32 in using force or deadly force
               to protect himself against the unlawful force or unlawful deadly force he
               reasonably believes to be threatening the third person he seeks to protect; and

       (2)     the actor reasonably believes that his intervention is immediately necessary
               to protect the third person.


Id. § 9.33. Section 9.31 sets forth the elements of self-defense, id. § 9.31, and, in relevant part,

section 9.32 addresses when a person is justified in using deadly force in the defense of a person:


       A person is justified in using deadly force against another:



                                                 8
        (1)     if the actor would be justified in using force against the other under Section
                9.31; and

        (2)     when and to the degree the actor reasonably believes the deadly force is
                immediately necessary:

                (A)     to protect the actor against the other’s use or attempted use of
                        unlawful deadly force . . . .


Id. § 9.32(a). “‘Deadly force’ means 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.” Id. § 9.01(3);

see id. § 1.07(a)(46) (defining “serious bodily injury”); Ferrel v. State, 55 S.W.3d 586, 591–92 (Tex.

Crim. App. 2001) (comparing when person acting in self-defense is entitled to use deadly force or

non-deadly force). “[I]n the context of self-defense and defense of a third person, force that is

‘immediately necessary’ to protect oneself or another from a person’s use of unlawful force is force

that is needed at that moment—‘when a split second decision is required.’” Henley v. State,

493 S.W.3d 77, 89–90 (Tex. Crim. App. 2016).

                “The focus of the defense-of-third-persons defense is upon what the actor reasonably

believes concerning the situation of the third person.” Morales v. State, 357 S.W.3d 1, 8 (Tex. Crim.

App. 2011); see Smith v. State, 355 S.W.3d 138, 145 (Tex. App.—Houston [1st Dist.] 2011, pet.

ref’d) (explaining that “person defending on the grounds of defense of a third person stands in the

shoes of the third person” and that “use of force to protect a third person is justified in any situation

in which the third person would be justified in using force to protect himself” (citing Hughes v. State,

719 S.W.2d 560, 564 (Tex. Crim. App. 1986))); Singleton v. State, No. 03-01-00057-CR,

2002 Tex. App. LEXIS 1875, at *14 (Tex. App.—Austin Mar. 14, 2002, no pet.) (mem. op., not



                                                   9
designated for publication) (explaining that there was “objective, temporal component to section

9.33” and that “objective circumstances must indicate that the defendant’s subjective belief was

reasonable before a defensive instruction under section 9.33 is required”). “‘Reasonable belief’

means a belief that would be held by an ordinary and prudent man in the same circumstances as the

actor.” Tex. Penal Code § 1.07(a)(42).


Did the trial court err in refusing to instruct the jury on the defense of a third person?

               Appellant contends that the trial court erred by not instructing the jury on the defense

of a third person because she presented evidence that she believed deadly force was necessary to

protect Chambers from harm. Appellant focuses on her own testimony to support her position that

she reasonably believed deadly force against Linder was necessary to protect Chambers. She cites

her testimony that: (i) she requested the officer’s presence for civil standby; (ii) she was afraid of

“physically being hurt” by Linder; (iii) in one of the previous incidents involving the roommates in

which the police were called, she asked the responding officer about her self-defense rights; (iv) at

the time of the incident, Linder had his hands “balled up like a fist,” his chest “puffed up,” was

“within striking distance,” and was in a rage; (v) she “believe[d] [Linder] may even kill

[Chambers]”; (vi) she put herself between Linder and Chambers to protect Chambers; and (vii) she

believed that Linder was an “MMA fighter” and that his “hands were registered legal weapons”

because that was what Linder previously had told her. She also cites testimony from Chambers that

Linder was “ranting and raving” and using ethnic slurs.

               By definition, appellant used deadly force when she shot Linder. See Tex. Penal Code

§ 9.01(3) (defining “deadly force”); Ferrel, 55 S.W.3d at 591–92 (explaining that defendant “by

                                                 10
definition used deadly force” based on court’s finding that “actual blow of the [beer] bottle

indisputably caused serious bodily injury to [victim]”); see also Tex. Penal Code § 1.07(a)(17)

(defining “deadly weapon” to include firearm). Thus, to be entitled to a jury instruction on the

defense of a third person, appellant was required to present some evidence that would support a

rational inference that an “ordinary and prudent man in the same circumstances” as appellant would

have believed that Linder was threatening “unlawful deadly force” against Chambers and that

appellant’s “intervention”—the use of deadly force against Linder—was “immediately necessary to

protect” Chambers. See Tex. Penal Code §§ 1.07(a)(42), 9.32, 9.33; Shaw, 243 S.W.3d at 657–58;

see also O’Neal v. State, No. 01-12-00638-CR, 2013 Tex. App. LEXIS 13329, at *5 (Tex.

App.—Houston [1st Dist.] Oct. 29, 2013, no pet.) (mem. op., not designated for publication)

(explaining that trial court is required “to instruct the jury on a defense only if there is some evidence

on each element of the defense to support a rational inference that the element is true”).

                The evidence, however, was undisputed that Linder was unarmed; that he had not

attempted to punch or hit Chambers with his hands or any other object; that he had not verbally

threatened Chambers with the use of deadly force; that Linder and Chambers remained several feet

apart when appellant entered the living room, pushed Chambers aside, and shot Linder; and that, at

most, Linder and Chambers may have had a fistfight if appellant had not intervened. See Sanchez

v. State, 418 S.W.3d 302, 310 (Tex. App.—Fort Worth 2013, pet. ref’d) (collecting cases concluding

that punch or attempted punch was not deadly force); see also Tex. Penal Code § 9.31(b)(1) (“The

use of force against another is not justified . . . in response to verbal provocation alone.”); cf. Kipp

v. State, No. 03-09-00175-CR, 2009 Tex. App. LEXIS 7884, at *10–11 (Tex. App.—Austin



                                                   11
Oct. 9, 2009, no pet.) (mem. op., not designated for publication) (explaining that use of fist or pipe

was, by definition, deadly force in situation where use of fist or pipe actually caused serious bodily

injury). As Chambers testified, “we all know that” the gun was unnecessary and excessive.

               Given the evidence concerning the situation in the living room and the circumstances

under which appellant walked into the living room and shot Linder, appellant’s testimony concerning

her subjective beliefs about Linder, such as his hands being “legal weapons,” does not support a

rational inference that an “ordinary and prudent man in the same circumstances” as appellant would

have believed that Linder was threatening “unlawful deadly force” against Chambers or that the use

of deadly force was “immediately necessary to protect” Chambers. See Tex. Penal Code § 9.33;

Morales, 357 S.W.3d at 8 (explaining that focus is upon actor’s reasonable belief “concerning the

situation of the third person”); Shaw, 243 S.W.3d at 658 (allowing court to rely on “common sense

and experience”); Sanchez, 418 S.W.3d at 310 (concluding that defendant was not entitled to

instruction on self-defense or defense of third persons and that “nothing in the record reveals any

basis for [defendant] to reasonably believe that he needed to use deadly force against [the victim]”);

O’Neal, 2013 Tex. App. LEXIS 13329, at *6–7 (concluding that “nothing in the record supports a

rational inference that an ordinary and prudent person in [defendant]’s situation would have

believed that [third party] was threatened by [victim] such that deadly force was justified and

immediately necessary to protect [third party]”); see also Williams v. State, No. 11-12-00261-CR,

2014 Tex. App. LEXIS 10756, at *4 (Tex. App.—Eastland Sept. 25, 2014, no pet.) (mem. op., not

designated for publication) (concluding that there were no facts in record, that if believed, would

raise issue of self-defense in response to deadly force and explaining that “unless there is evidence



                                                 12
that would support a belief that [the victim] used or attempted to use deadly force, [defendant] was

not entitled to a jury instruction on self-defense”); Singleton, 2002 Tex. App. LEXIS 1875, at *14

(explaining that “objective circumstances must indicate that the defendant’s subjective belief was

reasonable before a defensive instruction under section 9.33 is required” and that “defendant’s

testimony that she subjectively believed her actions were necessary to protect the third person is

not sufficient”).

                As support for her position that the trial court erred, appellant cites the Texas Court

of Criminal Appeal’s opinion in Gamino v. State. We do not find the facts of that case analogous

to the facts before this Court or our analysis inconsistent with the court’s analysis in that case. In

Gamino, the Texas Court of Criminal Appeals concluded that the trial court should have instructed

the jury on self-defense because the defendant’s testimony was some evidence that he “reasonably

believed his use of force was immediately necessary to protect himself and his girlfriend against [the

victim]’s use or attempted use of unlawful force.” 537 S.W.3d at 512–13. The appeal was from the

defendant’s conviction of aggravated assault with a deadly weapon, and the evidence at the trial was

that the defendant pointed a gun at the victim after uttering, “I got something for you.” Id. at

508–09. In explaining the circumstances surrounding his actions, the defendant testified that the

victim had threatened him and his girlfriend, that he drew his weapon when the victim approached

him in an “aggressive manner,” and that he “held it by [his] side” and said, “Get back, leave us

alone.” Id. at 512. Based on the defendant’s testimony, the court concluded that there was some

evidence that he “produced his gun for the limited purpose of creating an apprehension that he would

use deadly force if necessary” and, therefore, that the defendant’s display of the gun was non-deadly



                                                  13
force, entitling him to a self-defense instruction under section 9.31 of the Penal Code. Id. at 510–12

(citing Tex. Penal Code § 9.04 (explaining when threat of force is justified)).3 In contrast to the

defendant in Gamino, appellant used deadly force when she shot Linder, and she does not contend

that she was entitled to a self-defense instruction under section 9.31. The question before this Court

then concerns deadly force and not, as in Gamino, whether the defendant’s account of what happened

supported a reasonable belief that his use of non-deadly force was justified. See id. at 512–13.

                To support submitting an instruction on the defense of a third person to the jury,

appellant was required to present some evidence about the circumstances in the home’s living room

at the time she shot Linder that would support a rational inference that she had a reasonable belief

that Linder was threatening “unlawful deadly force” against Chambers and that her intervention with

the use of deadly force against Linder was “immediately necessary to protect” Chambers. See Tex.

Penal Code § 9.33; Henley, 493 S.W.3d at 89–90 (requiring force to be “needed at that moment” in

context of defense of third person); Morales, 357 S.W.3d at 8; Shaw, 243 S.W.3d at 657–58.

Viewing the evidence in the light most favorable to appellant, we conclude that she failed to do so.

See Gamino, 537 S.W.3d at 510; Singleton, 2002 Tex. App. LEXIS 1875, at *14; see also Pena

v. State, 635 S.W.2d 912, 914 (Tex. App.—Eastland 1982, pet. ref’d) (“Even accepting appellant’s


       3
           Section 9.04 of the Penal Code provides that:

       The threat of force is justified when the use of force is justified by this chapter. For
       purposes of this section, a threat to cause death or serious bodily injury by the
       production of a weapon or otherwise, as long as the actor’s purpose is limited to
       creating an apprehension that he will use deadly force if necessary, does not
       constitute the use of deadly force.

Tex. Penal Code § 9.04.

                                                 14
version of the incident, he could not have reasonably believed that it was necessary to stab the

decedent five times in order to protect either of the two ladies.”). Thus, we conclude that the trial

court did not err in denying appellant’s requested instruction on the defense of a third person. We

overrule appellant’s point of error and do not conduct a harm analysis. See Arteaga, 521 S.W.3d

at 333.


                                            Conclusion

               For these reasons, we affirm the judgment of conviction.



                                              __________________________________________
                                              Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Goodwin and Triana

Affirmed

Filed: January 31, 2018

Do Not Publish




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