Opinion issued February 5, 2019




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00441-CR
                           ———————————
                       BRIAN BLACKBURN, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


              On Appeal from the County Criminal Court No. 5
                          Tarrant County, Texas1
                      Trial Court Case No. 1488384


                         MEMORANDUM OPINION

      A jury convicted appellant, Brian Blackburn, of misdemeanor assault

causing bodily injury upon a family member, and the trial court, after finding a

1
      The Texas Supreme Court transferred this appeal from the Court of Appeals for
      the Second District of Texas. See TEX. GOV’T CODE ANN. § 73.001 (authorizing
      transfer of cases between courts of appeals).
single enhancement true, assessed punishment at confinement for 180 days. In two

issues on appeal, appellant contends that (1) the trial court erred in denying his

requested self-defense jury instruction and (2) that Article 102.008(a) of the Texas

Code of Criminal Appeals, which authorizes a $25 “district attorney” fee, is

unconstitutional. We affirm.

                                 BACKGROUND

      On February 23, 2017, appellant and his wife, Yolanda Rivas, began to

argue about money after Rivas told appellant that she was going to pay her phone

bill out of an account the two shared. Appellant was upset with this because he

claimed that the money in the account was already committed to other bills and he

believed that she should pay the bill out of her own account. When appellant

became angry, Rivas began videoing the fight with her cell phone. The video

shows appellant going into the bedroom and beginning to look for Rivas’s debit

card. When appellant realized that the card was not in the purse, he turned to

Rivas again and demanded that she give him the card. When Rivas did not comply,

appellant reached toward her. The video then cuts out, and here appellant’s and

Rivas’s version of the events begins to differ.

      The State presented evidence that appellant grabbed Rivas by the arms,

pulled her towards him, grabbed her hair, and threw her on the bed. When Rivas

attempted to get up, appellant put his knee in her stomach to prevent her from


                                          2
doing so. He then began to hit Rivas in the head with both hands, using the palm of

his hands. Rivas claimed that a cut on appellant’s lip was caused when her phone,

which she was still holding, hit him in the face as she defended herself. Rivas was

crying for help during the attack, and appellant attempted to cover her mouth to

prevent her from yelling for help. However, Rivas’s son, who was in the living

room, came in to help when he heard Rivas screaming. When Rivas’s son entered

the room, appellant stopped hitting Rivas and went into the living room. Rivas

then called the police and appellant called his sister.

      The police questioned both appellant and Rivas and documented the “knots”

on her forehead and under her right eye. Rivas told police that she and appellant

were fighting about money and that appellant punched her several times. Police

looked at the video and concluded that appellant was raising his arms toward Rivas

when the video stopped. Appellant told police that Rivas had punched him in the

mouth. He also said that she punched herself and that “he would never hit a

woman.” After speaking with both appellant, Rivas, and Rivas’s son, watching the

video, and viewing Rivas’s injuries, police determined that appellant was the

primary aggressor and arrested him.

      Appellant presented a different version of the events. He stated that he tried

to take Rivas’s purse from her so that he could retrieve his bankcard from it, and

thatthis explained him reaching for her on the video. Appellant stated that, in


                                           3
response, Rivas punched him in the mouth. He said that he then grabbed Rivas by

the shoulders and pinned her on the bed to prevent her from hitting him again. He

denied ever hitting Rivas or pulling her hair. Instead, he claimed that she caused

the bruises to herself. He claimed that her bloody knuckles were caused when she

hit him in the mouth and pointed out to police that he did not have any marks on

his own hands. Appellant also presented evidence that Rivas had been arrested on

a previous occasion for assaulting him, but that the case was dismissed when he

did not go to trial to testify against her. He also presented evidence that Rivas

sought to obtain a visa based on being a domestic abuse victim.

      Appellant requested a jury charge on self-defense, contending that he

presented evidence justifying his actions, i.e., that Rivas hit him first. The trial

court denied the requested charge, noting “he just testified for 30 minutes that he

never hit her.” The trial court also noted that he would sustain an objection by

appellant if the State attempted to argue that any of the other conduct admitted to

by appellant, such as restraining her and holding her down, was also an assault.

The State did not make such an argument, and the jury found appellant guilty of

the charged offense. This appeal followed.

                                SELF-DEFENSE

      In his first issue on appeal, appellant contends that the trial court erred in

denying his request for a jury instruction on self-defense. In response, the State


                                         4
contends that self-defense is a confession-and-avoidance defense and that appellant

was not entitled to one because his did not admit to the assaultive conduct with

which he was charged.

Standard of Review and Applicable Law

      When reviewing an alleged jury-charge error, appellate courts first

determine whether error exists and then, if so, ascertain whether the resulting harm

is sufficient to warrant a reversal. See Price v. State, 457 S.W.3d 437, 440 (Tex.

Crim. App. 2015); Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). The

amount of harm needed for a reversal depends on whether a complaint regarding

“that error was preserved in the trial court.” Swearingen v. State, 270 S.W.3d 804,

808 (Tex. App.—Austin 2008, pet. ref’d). If, as here, the defendant made a timely

objection, reversal is required if there has been “some harm.” Almanza v. State,

686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g).

      A person is entitled to act in self-defense to an assault. See TEX. PENAL

CODE § 9.31(a) (“[A] person is justified in using force against another when and to

the degree the actor reasonable believes the force is immediately necessary to

protect the actor against the other’s use or attempted use of unlawful force.”).

      When determining whether a defensive instruction should have been

provided, appellate courts “view the evidence in the light most favorable to the

defendant’s requested” instruction. Bufkin v. State, 207 S.W.3d 779, 782 (Tex.


                                          5
Crim. App. 2006). In general, a defendant is entitled to a jury instruction on a

defensive issue if the defensive issue “is raised by the evidence, regardless of the

strength or credibility of that evidence.” Farmer v. State, 411 S.W.3d 901, 906

(Tex. Crim. App. 2013). “A 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 elements of self defense.” Gamino v. State,

537 S.W.3d 507, 510 (Tex. Crim. App. 2017). “Whether a defense is supported by

the evidence is a sufficiency question reviewable on appeal as a question of law.”

Shaw v. State, 243 S.W.3d 647, 658 (Tex. Crim. App. 2007).

      Chapter Nine of the Texas Penal Code (which contains the self-defense

statute found in sections 9.31) is entitled “Justification Excluding Criminal

Responsibility.” TEX. PENAL CODE ANN. §§ 9.01–.63. It includes justifications

such as self-defense, 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; 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


                                         6
otherwise criminal conduct.” Shaw v. State, 243 S.W.3d at 659. The Court of

Criminal Appeals has since held that a defendant is not required to concede the

State’s version of events and admitting to the conduct does not necessarily mean

admitting to every element if the defendant “sufficiently admits” to the

commission of the offense.       See Gamino, 537 S.W.3d at 511–12 (holding

defendant charged with aggravated assault with a deadly weapon entitled to self-

defense instruction even though he denied pointing his gun at and verbally

threatening complainant but admitted displaying weapon because he felt

threatened).

      Thus, the issue this Court must decide is whether appellant “sufficiently

admitted” committing the offense.

Analysis

      The State argues that appellant did not sufficiently admit the offense

because, while he admitted grabbing Rivas by the shoulders and holding her down

on the bed after she hit him in the mouth, he denied hitting her with his hand or

pulling her hair, as charged in the information set forth in the jury charge.2


2
      The misdemeanor information provided in relevant part:

      THAT BRIAN BLACKBURN . . . ON OR ABOUT THE 23RD DAY OF
      FEBRUARY 2017, DID THEN AND THERE INTENTIONALLY OR
      KNOWINGLY CAUSE BODILY INJURY TO YOLANDA RIVAS, A
      MEMBER OF THE DEFENDANT’S FAMILY OR HOUSEHOLD OR
      WITH WHOM THE DEFENDANT HAD A DATING RELATINGSHIP,
                                         7
Appellant counters that he admitted to a different version of events, even though he

did not admit to hitting Rivas or pulling her hair.

      In Holloman v. State, 948 S.W.2d 349 (Tex. App.—Amarillo 1997, no pet.),

the defendant testified that he was arguing with his wife, that he attempted to leave

the house, that his wife “picked up a butcher’s knife,” that he “feared that he would

‘get killed’” because of his wife’s “propensity for violence” against him and

others, that his wife put the knife down, that his wife grabbed his shirt, that his

wife hit him with her hands, and that the two “‘tussled’ for approximately ten

minutes during which time [the defendant] “repeatedly tried to free himself” before

ultimately being able to leave. Id. at 351. Considering this testimony, the Amarillo

Court of Appeals determined that an instruction should have been given because

the testimony indicated, among other things, that the defendant’s wife “was the

first to use force,” that the defendant “feared for his safety,” and that the defendant

“met force with force.” See id. Moreover, the court explained that although the

defendant did not admit to hitting his wife, his testimony included statements that

      BY STRIKING HER WITH HIS HAND, OR BY PULLING HER HAIR
      WITH HIS HAND[.]

      Likewise, the jury charge provided:

      Now, if you find from the evidence beyond a reasonable doubt that the
      Defendant, BRIAN BLACKBURN . . .did then and there intentionally or
      knowingly cause bodily injury to YOLANDA RIVAS, a member of the
      Defendant family or household . . . , by striking her with his hand, or by
      pulling her hair with his hand, then you will find the Defendant guilty as
      charged in the information.
                                            8
“they ‘tussled,’” “that he may have hit her with his legs,” and that “he ‘fought’”

with her. See id. at 352. Because the record supported a determination that the

defendant conceded to hitting his wife and thereby to causing her bodily injury, the

Amarillo court explained that the evidence demonstrated that the defendant used

“force” to repel the attack of another as described by the Penal Code. See id. (citing

TEX. PENAL CODE ANN. § 9.31(a)). The court held that “[the self-defense statute]

says nothing of admitting to the mode or type of ‘force’ averred in the charging

instrument; all that it contemplates is that ‘force’ was used.” Id.

      However, we need not decide whether appellant is required to admit that he

hit Rivas or pulled her hair, as charged, or whether his admission that he held her

down by her shoulders is sufficient to raise self-defense, because in this case he

denies another critical element of the offense. Appellant denies that he caused any

bodily injury to Rivas, arguing instead that “the injuries suffered by Ms. Rivas

were self-inflicted, as she had punched herself in the face.” Specifically, appellant

told Officer Sanchez, who responded to the dispatch, that Rivas “had punched

herself . . . and that’s how she sustained the injuries on her face.” When asked to

explain why Rivas’s forehead was swollen in the pictures taken after the incident,

appellant replied, “She’s done that to herself before” and demonstrated to the jury

how Rivas had “done it to herself.” He further testified, “I never assaulted [Rivas].

Never in the three-and-a-half years we were together have I assaulted her.” As


                                           9
such, appellant is not arguing that self-defense justified his injury of Rivas; he is

arguing that she injured herself and that he committed no offense at all because he

did not cause her bodily injury. He also presented evidence that Rivas had a motive

to injure herself so that she could apply for a visa as a domestic abuse victim.

      Even if we were to agree with the Holloman reasoning, we find that it is

distinguishable because here, appellant not only denied the type of force he used,

he denied causing bodily injury at all. Because appellant did not sufficiently admit

committing the offense, the trial court did not err by refusing his requested self-

defense instruction. Accordingly, we overrule issue one.

             CONSTITUTIONALITY OF ARTICLE 102.008(a)

      Article 102.008(a) of the Texas Code of Criminal Procedure provides, with

an exception not applicable here, that “a defendant convicted of a misdemeanor . . .

shall pay a fee of $25 for the trying of the case by the district or county attorney.”

TEX. CODE CRIM. PROC. ANN. art. 102.008(a). In issue two, appellant contends that

article 102.008(a) is an unconstitutional tax because it is not expended on a

legitimate criminal justice purpose but goes to the County’s general fund.

      While this appeal was pending, the Second Court of Appeals has held that

article 102.008(a) is constitutional because of several interrelated statutes “that

direct the $25 ultimately to payment of the prosecutor’s salary—a legitimate

criminal justice purpose[.]” Tyler v. State, 563 S.W.3d 493 (Tex. App.—Fort


                                          10
Worth 2018, no pet.) We note that this Court has held to the contrary. See

Hernandez v. State, No. 01-16-00755-CR, 2017 WL 3429414, at *7 (Tex. App.—

Houston [1st Dist.] Aug. 10, 2017, no pet.). However, “the court of appeals to

which [a] case is transferred must decide the case in accordance with the precedent

of the transferor court under principles of stare decisis if the transferee court’s

decision otherwise would have been inconsistent with the precedent of the

transferor court.” TEX. R. APP. P. 41.3. Applying, as we must, the Second Court

of Appeals’ precedent in Tyler, we overrule issue two. We note that, had this

Court not been required to decide the case in accordance with precedent from the

Second Court of Appeals, the outcome on this issue would have been different. Id.

                                 CONCLUSION

      We affirm the trial court’s judgment.




                                               Sherry Radack
                                               Chief Justice


Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

Do not publish. TEX. R. APP. P. 47.2(b)




                                          11
