                                      NO. 12-17-00080-CR

                            IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

ROBVIA LENEICE SIMPSON,                                §       APPEAL FROM THE 87TH
APPELLANT

V.                                                     §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                               §       ANDERSON COUNTY, TEXAS

                                      MEMORANDUM OPINION
       Robvia Leneice Simpson appeals her convictions for assault on a public servant (Count
One) and aggravated assault with a deadly weapon (Count Two). In a single issue, Appellant
argues the trial court improperly denied her request for a self-defense instruction in the jury
charge with respect to Count Two. We reverse and remand Count Two and affirm with regard to
Count One.


                                               BACKGROUND
       In 2015, Appellant pleaded “guilty” to the offense of abandoning and endangering a child
in Houston County. Pursuant to a plea agreement, she received one year of deferred adjudication
community supervision. While on community supervision, Appellant was arrested in Anderson
County.   Houston County filed a motion to adjudicate guilt and requested that Appellant’s
community supervision be revoked based in part on the alleged crimes committed in Anderson
County. The motion to adjudicate guilt alleged that Appellant violated several terms of her
community supervision, including:


       In that the Defendant, Robvia Simpson, in the State of Texas and County of Anderson and while
       during the term of said community supervision, on or about the 21st day of September, 2015, did
       then and there [i]ntentionally, knowingly, and recklessly cause bodily injury to Robert Simmons by
       hitting him on the head with an ashtray.
          In that the Defendant, Robvia Simpson, in the State of Texas and County of Anderson and while
          during the term of said community supervision, on or about the 21st day of September, 2015, did
          then and there [i]ntentionally, knowingly, and recklessly cause bodily injury to Code Rice,
          hereafter styled the complainant, by hitting him, choking him, and scratching the back of his head
          and neck with her keys, or fingernails, which caused bodily injury, and the defendant did then and
          there know that the complainant was then and there lawfully discharging a lawful duty, to-wit:
          Complainant had lawfully arrested the Defendant for aggravated assault.


Appellant pleaded “true” to all of the allegations, was found “guilty,” and was sentenced to six
months confinement.
          A grand jury subsequently returned an indictment against Appellant in Anderson County.
Count One of the indictment alleged Appellant committed assault on a public servant while
exhibiting a deadly weapon, to wit, her keys, against Rice. Count Two accused Appellant of
committing aggravated assault with a deadly weapon, to wit, an ashtray, against Simmons. Other
than the deadly weapon charges, the accusations in the indictment parallel the accusations in
Houston County’s motion to adjudicate guilt. Appellant pleaded “not guilty” to both counts and
the matter proceeded to a jury trial in Anderson County.
          During trial, Appellant testified that she struck Simmons with the ashtray in self-defense.
At the charge conference, Appellant submitted a self-defense instruction to be included in the jury
charge.        The State argued that because Appellant pleaded “true” to the allegation that she
committed the offense against Simmons when her community supervision was revoked in
Houston County, res judicata barred her from asserting self-defense in the Anderson County
proceeding. The trial court agreed and refused to submit the instruction. Appellant objected to
the charge’s omission of the self-defense instruction.
          The jury found Appellant “guilty” of the lesser included offense of assault on a public
servant and “guilty” of aggravated assault with a deadly weapon. Following the punishment
phase, the jury assessed punishment at imprisonment for ten years on Count One and eleven years
on Count Two. The trial court entered judgment in accordance with the jury’s verdict and
ordered the sentences run concurrently. This appeal followed.


                                                   CHARGE ERROR
          In her sole issue, Appellant argues that the trial court erred when it refused her request to
instruct the jury on the issue of self-defense with regard to Count Two of the indictment.1 At trial

          1
              Appellant presents no complaints regarding her conviction for Count One of the indictment.


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and on appeal, the State does not dispute that the evidence raised the issue of self-defense.
Instead, the State contends that Appellant is barred from arguing self-defense by res judicata.
According to the State, because Appellant did not assert self-defense in the Houston County
revocation proceeding, she could not do so at trial in Anderson County.
Standard of Review and Applicable Law
       The review of an alleged jury-charge error in a criminal trial is a two-step process.
Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). First, an appellate court must
determine whether there was error in the jury charge. Id. Second, if there is charge error, the
court must determine whether there is sufficient harm to require reversal. Id. at 731–32. The
standard for determining whether there is sufficient harm to require reversal depends on whether
the appellant objected. Id. at 732. If the appellant objected to the error at trial, the appellate court
must reverse the trial court’s judgment if the error “is calculated to injure the rights of the
defendant.” TEX. CODE CRIM. PROC. ANN. art. 36.19 (West 2006). This standard requires proof
of no more than some harm to the accused from the error. Almanza v. State, 686 S.W.2d 157,
171 (Tex. Crim. App. 1984). An appellant who did not raise the error at trial can prevail only if
the error is so egregious and created such harm that he has not had a fair and impartial trial. Id.
“In both situations the actual degree of harm must be assayed in light of the entire jury charge, the
state of the evidence, including the contested issues and weight of probative evidence, the
argument of counsel and any other relevant information revealed by the record of the trial as a
whole.”    Id. In assessing whether the trial court erred by denying a requested defensive
instruction, an appellate court must examine the evidence offered in support of the defensive
issue in the light most favorable to the defense. Id.
       The penal code states that a person is justified in using force against another when and to
the degree he reasonably believes the force is immediately necessary to protect himself. TEX.
PENAL CODE ANN. § 9.31(a) (West 2011). And deadly force may be used to defend oneself if he
“reasonably believes the deadly force is immediately necessary” to protect himself from the use
or attempted use of unlawful deadly force. Id. § 9.32(a)(2)(A) (West 2011). The penal code
defines a “reasonable belief” as one that would be held by an ordinary and prudent man in the
same circumstances as the actor. Id. § 1.07(a)(42) (West Supp. 2017). Where the evidence raises
the issue of apparent danger, the court, in instructing the jury on the law of self-defense, should
tell the jury that a person has a right to defend from apparent danger to the same extent as he



                                                   3
would had the danger been real, provided he acted upon a reasonable apprehension of danger as it
appeared to him from his standpoint at the time. Jones v. State, 544 S.W.2d 139, 142 (Tex.
Crim. App. 1976).
Evidence of Self-Defense
       According to the record, Appellant and Simmons were roommates at the time of the
offense.   Appellant testified that approximately one month before the offense, she had an
altercation with Simmons. In that altercation, she was arguing with her boyfriend when Simmons
inserted himself into the argument and grabbed Appellant’s shirt. She asked him twice to let go
and a fight ensued when he refused. During the fight, she and Simmons pulled each other’s hair
and ended up on the ground. Appellant’s boyfriend broke up the fight.
       Appellant testified that on the day of the offense, she and her boyfriend were home
watching Netflix most of the day. At some point, Simmons arrived home and began watching
with them.    Appellant stated that Simmons had been drinking since his arrival. Simmons
complained about the internet buffering slowly and asked Appellant if she wanted him to fix it.
After Appellant said “no,” Simmons continued complaining, which escalated into an argument.
During the argument, Appellant went to the bathroom. When she returned, Simmons “jumped in
[her] face” and was cursing. According to Appellant, Simmons attempted to grab the ashtray but
she “snatched it” before he could.       She testified that she grabbed the ashtray because she
remembered him “putting his hands on [her]” during their previous encounter. Appellant stated
that Simmons pushed her and she swung the ashtray as she fell backwards. He stumbled and
grabbed the television to steady himself but he fell, along with the television and monitor.
Appellant attempted to leave and go to her room, but Simmons jumped up and grabbed her hair.
She started swinging her arms trying to defend herself and he threw her on the couch. Their other
two roommates separated them, and Simmons called the police. Appellant testified that she will
protect herself if a person puts his hands on her, but contended that she does not start fights.
       Simmons testified that he had been drinking prior to his altercation with Appellant on the
day of the offense and was “pretty lit.” According to Simmons, Appellant arrived home after
dark, grabbed the remote, and changed the channel on the television. Simmons testified that the
two exchanged words and when he stood up, “I guess she thought I was going to hit her, because
that’s when she struck me with the ashtray,” and that “she perceived that [the act of standing up]




                                                  4
as a threat.” When Appellant hit him with the ashtray, he fell over. Simmons testified that he tried
to stand up, but Appellant got on top of him and began hitting him.
       Simmons admitted that he and Appellant got into another fight a few weeks before the
offense. Regarding the offense, he testified, “She probably assumed – I was drunk and cursing at
her, and yelling, and when I went to stand up, she probably assumed I was fixing to hit her, so she
struck me first.” When asked if Appellant was “safe to assume that [he was] going to put [his]
hands on her,” Simmons responded “yes.”
       Officer Cody Rice of the Palestine Police Department testified that, at the scene of the
offense, Appellant claimed self-defense and claimed that Simmons struck her first. Officer Rice
stated that Appellant asserted that she was pushed first. However, he and the other officers
decided that Appellant picked up the ashtray before being pushed. Officer Rice stated that
Appellant must have been anticipating something when she picked up the ashtray.
       As previously stated, the parties do not dispute that the evidence at trial raised the issue of
self-defense. And we need not “decide whether appellant’s claim of self-defense is strong or
credible, only that there is some evidence such that the trial court should have included a self-
defense instruction in the jury charge.”         Lozano v. State, No. 05-14-00593-CR, 2016 WL
2756438, at *3 (Tex. App.—Dallas May 9, 2016, no pet.) (mem. op., not designated for
publication); see Smith v. State, 676 S.W.2d 584, 586–87 (Tex. Crim. App. 1984) (“It is
axiomatic that when properly requested, the trial court must instruct the jury on every defensive
theory raised by the evidence, and it makes no difference whether such evidence or testimony
was produced by the prosecution or the defense, or whether such defensive evidence or testimony
might be strong, weak, unimpeached, or contradicted[]”).           Given that the above evidence
constitutes some evidence of self-defense, we now proceed to determine whether that defense
was barred by res judicata. See Jones, 544 S.W.2d at 142; see also Beltran v. State, 472 S.W.3d
283, 290 (Tex. Crim. App. 2015) (“A defendant’s testimony alone is sufficient to raise a
defensive issue requiring an instruction in the charge[]”); Beckstrand v. State, No. 02–12–
00480–CR, 2015 WL 1544077, at *7 (Tex. App.—Fort Worth Apr. 2, 2015, no pet.) (mem. op.,
not designated for publication) (“Evidence offered in support of a defensive issue is reviewed in
the light most favorable to the defendant[]”).




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Error in the Charge
       Under the doctrine of res judicata, if an issue of ultimate fact has been determined by a
final and valid judgment, the issue cannot be litigated again in a future lawsuit by the same
parties. Getman v. State, 255 S.W.3d 381, 384 (Tex. App.—Austin 2008, no pet.). To ascertain
whether an issue is precluded, “courts must determine (1) exactly what facts were necessarily
decided in the first proceeding, and (2) whether those necessarily decided facts constitute
essential elements of the offense in the second trial.” Id. The court of criminal appeals has held
that res judicata can arise from determinations made in a probation-revocation hearing. Ex parte
Tarver, 725 S.W.2d 195, 197 (Tex. Crim. App. 1986). The court has also determined that two
prosecuting authorities can be the same party for res judicata purposes. Ex parte Doan (Doan
II), 369 S.W.3d 205, 213 (Tex. Crim. App. 2012). This is because a prosecuting authority who
alleges a criminal offense in a community supervision revocation hearing represents the same
state interests as a prosecuting authority who later alleges the same criminal offense in a trial. Id.
at 212–13.
       On remand in Doan, the Fort Worth Court of Appeals explained that the trial court
conducting Doan’s revocation hearing did not enter a finding of “not true” regarding the theft
allegation in the motion to revoke. Ex parte Doan (Doan III), No. 03-08-00704-CR, 2012 WL
6698987, at *1-2, 4 (Tex. App.—Fort Worth Dec. 21, 2012, pet. ref’d) (mem. op., not designated
for publication). Rather, the trial court essentially overruled the motion to revoke, which was
insufficient to bar a subsequent prosecution. Id. at *4. Thus, Doan failed to meet his burden of
demonstrating that a factual issue was decided in a prior proceeding that barred the Travis County
Attorney from prosecuting him for theft. Id. at *5. Accordingly, the cases applying Doan II and
Tarver in the revocation context concern cases in which there were no fact findings on the
underlying allegations in the revocation proceeding and the State subsequently attempted to
prosecute the defendant for that same crime in a later trial. See Doan III, 2012 WL 6698987, at
*1–2; Ex parte Claudio, No. 01-15-00905-CR, 2016 WL 3571259, at *1, 3 (Tex. App.—Houston
[1st Dist.] June 30, 2016, pet. ref’d) (mem. op., not designated for publication) (“because the trial
court did not make a finding adverse to the State, the State is not collaterally estopped from
prosecuting appellant for DWI in Harris County[]”). In the case at hand, however, the underlying
allegations were all found “true.”




                                                  6
       Moreover, the State characterizes the issue in the present case as one of “res judicata”
instead of “collateral estoppel.”        Doan II addressed res judicata in a broad sense without
distinguishing between claim and issue preclusion.                In her dissent, Presiding Judge Keller
explained that “res judicata” is sometimes used as a broad term to describe both claim preclusion
and issue preclusion. Doan II, 369 S.W.3d at 221 (Keller, P.J., dissenting). At other times, the
term is used in a more narrow sense to refer only to claim preclusion, which leaves the concept of
issue preclusion to be described as “collateral estoppel.” Id. Justice Keller explains:


       [T]he question before us is one of issue preclusion, not claim preclusion. Whether a person should
       be convicted of a crime and whether his probation should be revoked are separate claims. On the
       other hand, whether a crime was committed is merely an issue that might arise in a probation
       revocation context. So, here, we are concerned with collateral estoppel.


Id. at 222. This distinction is important because the doctrine of collateral estoppel may carry
limitations in criminal cases that do not exist in civil cases. York v. State, 342 S.W.3d 528, 549
(Tex. Crim. App. 2011) (citing Standefer v. U.S., 447 U.S. 10, 100 S. Ct. 1999, 64 L. Ed. 2d 689
(1980)).
       The court of criminal appeals has yet to definitively articulate the differing standards of
proof between res judicata and collateral estoppel in the criminal context. Because the doctrine
of res judicata began in civil law, where the criminal standards are unclear, we are guided by the
standards set forth by the Texas Supreme Court in the civil context. See Ashe v. Swenson, 397
U.S. 436, 443, 90 S. Ct. 1189, 1194, 25 L. Ed. 2d 469 (1970); State v. Waters, No. 02-16-00274-
CR, 2017 WL 2877086, at *6 n.2 (Tex. App.—Fort Worth July 6, 2017, pet. granted) (mem. op.,
not designated for publication) (Sudderth, J., concurring). In civil cases, res judicata bars the
relitigation of claims actually litigated as well as those that should have been litigated, as long as
the claims arose out of the same transaction. Waters, 2017 WL 2877086, at *6 n.2 (Sudderth, J.,
concurring) (citing Igal v. Brightstar Info. Tech. Grp., 250 S.W.3d 78, 86 (Tex. 2008)).
Collateral estoppel is more restrictive, barring only the relitigation of a specific issue already
decided in an earlier case and focusing specifically on what was both actually litigated and
essential to the judgment. Id. (citing Van Dyke v. Boswell, O’Toole, Davis & Pickering, 697
S.W.2d 381, 384 (Tex. 1985)).

       For collateral estoppel to apply, the same facts sought to be litigated in the second suit must have
       been “fully litigated” in the first suit, and they must have been “essential to the judgment,”



                                                        7
          meaning that if the original judgment could be independently supported on more than one
          determination, neither determination would be essential to the judgment.


Id. (citing Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 522 (Tex.
1998)).
          In this case, as in Doan II, we are concerned with collateral estoppel or issue preclusion.
Unlike in Doan II, however, the present case involves a situation in which the underlying
allegation, i.e., the assault against Simmons, was found “true.” Thus, we will apply the concept
of collateral estoppel to the specific facts of the case at hand.
          In the Houston County case, the State alleged Appellant violated ten provisions of her
community supervision. Appellant pleaded “true” to all of the State’s alleged violations. The
trial court determined that Appellant committed each of those violations. The alleged assault on
Simmons was only one of such violations. When the State alleges several violations in its
revocation motion, the revocation order is sufficient if only one violation is supported by a
preponderance of the evidence.         See Bigham v. State, 233 S.W.3d 118, 121 (Tex. App.—
Texarkana 2007, no pet.) see also Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.—Texarkana
2003, pet. ref’d) (to revoke probation, State must prove every element of at least one ground for
revocation by a preponderance of the evidence). Accordingly, because the trial court’s revocation
of Appellant’s community supervision could have been independently supported by any one of
Appellant’s violations of her community supervision, none of the allegations are considered
“essential” to the judgment. See Waters, 2017 WL 2877086, at *6 (Sudderth, J., concurring)
(citing Johnson & Higgins of Tex., Inc., 962 S.W.2d at 522); see also Bigham, 233 S.W.3d at
121; Pierce, 113 S.W.3d at, 436. As a result, Appellant’s alleged assault on Simmons was not an
essential element of the Houston County revocation proceeding and Appellant’s self-defense
claim is not barred by collateral estoppel in the Anderson County proceeding.
          Moreover, Appellant’s self-defense claim is not barred for an additional reason.          A
probation-revocation proceeding does not place the defendant in jeopardy because a revocation
hearing is not a criminal prosecution; that is, it is not a proceeding that could result in a
conviction. Doan II, 369 S.W.3d at 219 (Keller, P.J., dissenting). Some courts have also held
that a probation-revocation hearing is not a “valid and final judgment” for collateral estoppel
purposes because it is not a final determination of the probationer’s involvement in the new
criminal activities. Id. Accordingly, there is no final judgment on Count Two in this case, for



                                                    8
purposes of collateral estoppel, given it was merely a ground for revocation. For the above
reasons, the trial court erred by refusing Appellant’s requested self-defense instruction.
Harm Analysis
         Because Appellant objected to the omission of a self-defense instruction in the
jury charge, she is entitled to a reversal if the record shows she suffered some actual harm from
the error. See Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). When performing a
harm analysis, we consider the jury charge as a whole, the arguments of counsel, the entirety of
the evidence, and any other relevant information in the record. Id.
         Chapter Nine of the Texas Penal Code (which contains the above-referenced sections 9.31
and 9.42) is entitled “Justification Excluding Criminal Responsibility.” TEX. PENAL CODE ANN.
§§ 9.01–.63 (West 2011). It includes justifications such as necessity and public duty, and explains
the justification aspects of protection of persons and property. Young v. State, 991 S.W.2d 835,
838 (Tex. Crim. App. 1999). If the conduct in question is justified under one of the provisions of
Chapter Nine, it is a defense to prosecution. TEX. PENAL CODE ANN. § 9.02 (West 2011); see
Young, 991 S.W.2d at 838. However, a defendant is entitled to an instruction involving one of
the justification defenses “only ... when the defendant’s defensive evidence essentially admits to
every element of the offense including the culpable mental state, but interposes the justification to
excuse the otherwise criminal conduct.” Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App.
2007).
         Appellant never denied striking Simmons with the ashtray. Rather, she admitted striking
Simmons and claimed that she did so in self-defense. According to Appellant, she only swung
the ashtray after Simmons pushed her down. In addition, Appellant stated that she had a previous
altercation with Appellant in which he grabbed her shirt and pulled her hair. Simmons himself
admitted that Appellant was reasonable in assuming that he would hit her because of their
previous history and his being intoxicated. Officer Rice also testified that it appeared Appellant
anticipated something when she grabbed the ashtray. Furthermore, Appellant’s counsel made it
clear during opening argument that Appellant’s defensive theory was that she acted in self-
defense.
         After reviewing the charge, evidence, and arguments of counsel, we conclude that this is a
case in which the jury was “without a vehicle by which to acquit a defendant who has admitted to
all the elements of the offense.” Cornet v. State, 417 S.W.3d 446, 451 (Tex. Crim. App. 2013)



                                                  9
(explaining     harm      generally     associated      with   a   denied   self-defense   instruction); see,
e.g., Beckstrand, 2015 WL 1544077, at *10 (“Because Appellant admitted striking Noah, without
the self-defense instruction, Appellant admitted the offense.”). Without the self-defense
instruction, the jury had no option but to find Appellant guilty. See Cornet, 417 S.W.3d at 451.
Consequently, Appellant suffered some harm as a result of the omission of the self-defense
instruction. See Miller v. State, 815 S.W.2d 582, 586 n.5 (Tex. Crim. App. 1991) (unless all harm
is abated, an appellant suffered “some” harm); see also Beckstrand, 2015 WL 1544077, at *10.
“[A]ny harm, regardless of degree, which results from preserved charging error, is sufficient to
require a reversal of the conviction.” Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App.
1986). We sustain Appellant’s sole issue.


                                                   DISPOSITION
         Having sustained Appellant’s single issue, we reverse the trial court’s judgment on Count
Two and remand for further proceedings consistent with this opinion. Further, we affirm the
trial court’s judgment on Count One.



                                                                      JAMES T. WORTHEN
                                                                         Chief Justice


Opinion delivered April 18, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                              (DO NOT PUBLISH)




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                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                            APRIL 18, 2018


                                        NO. 12-17-00080-CR


                                 ROBVIA LENEICE SIMPSON,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee


                                Appeal from the 87th District Court
                    of Anderson County, Texas (Tr.Ct.No. 87CR-16-32761)

                      THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, because it is the opinion of this court that there was error
in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court
that the judgment be reversed with regard to Count Two and the cause remanded to the trial
court for further proceedings in accordance with the opinion of this court; that the judgment be
affirmed with regard to Count One; and that this decision be certified to the court below for
observance.
                   James T. Worthen, Chief Justice.
                   Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
