                           NUMBER 13-11-00705-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

SOPHIA CAMPOS
A/K/A SOPHIA GAYTAN,                                                   Appellant,

                                         v.

THE STATE OF TEXAS,                                                     Appellee.


                  On appeal from the 105th District Court
                        of Kleberg County, Texas.


                        MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Rodriguez and Longoria
             Memorandum Opinion by Justice Longoria
      A jury found Sophia Campos a/k/a Sophia Gaytan guilty of murder and four counts

of aggravated assault with a deadly weapon arising from a bar brawl, the facts and

circumstances of which were hotly contested at trial. See TEX. PENAL CODE ANN. §

19.02(b) (West 2011) (“murder”); id. § 22.02(a)(2) (West 2011) (“aggravated assault”).
The jury assessed a sentence of life in prison for the murder and a twenty year prison

sentence for each of the four counts of aggravated assault. Id. § 12.32 (West 2011) (“first

degree felony punishment”); id. § 12.33 (West 2011) (“second degree felony

punishment”). Campos now appeals by two issues in which she contends that the trial

court deprived her of a fair and impartial trial by submitting to the jury a charge that

erroneously (1) omitted from the application paragraphs an instruction on the law of self

defense and (2) misallocated the burden of proof with respect to the law of defense of a

third person. For the reasons set forth below, we affirm the trial court’s judgment.

                                  I. STANDARD OF REVIEW

       “[A]ll alleged jury-charge error must be considered on appellate review regardless

of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App.

2012). “Appellate review of purported error in a jury charge involves a two-step process.”

Id. “First, we determine whether the jury instruction is erroneous.” Id. “Second, if error

occurred, then an appellate court must analyze that error for harm.” Id. “The issue of

error preservation is not relevant until harm is assessed because the degree of harm

required for reversal depends on whether the error was preserved.” Id.

       In this case, Campos did not object to the jury charge at trial. The Texas Court of

Criminal Appeals has explained the applicable standard of review as follows:

       Under Almanza, unobjected-to jury charge error will not result in reversal of
       a conviction in the absence of “egregious harm.” In examining the record
       for egregious harm, vel non, a reviewing court should consider . . . 1) the
       entire jury charge, 2) the state of the evidence, including the contested
       issues and the weight of the probative evidence, 3) the final arguments of
       the parties, and 4) any other relevant information revealed by the record of
       the trial as a whole. Jury charge error is egregiously harmful if it affects the
       very basis of the case, deprives the defendant of a valuable right, or vitally
       affects a defensive theory.



                                              2
Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008) (footnotes omitted) (citing

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

succeed in this appeal, Campos “must have suffered actual harm, not merely theoretical

harm.” Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012).

                                   II. APPLICABLE LAW

       Pursuant to Article 36.14 of the Texas Code of Criminal Procedure, the trial judge

is required to give the jury a written charge “setting forth the law applicable to the case;

not expressing any opinion as to the weight of the evidence, not summing up the

testimony, discussing the facts or using any argument in his charge calculated to arouse

the sympathy or excite the passions of the jury.” TEX. CODE CRIM. PROC. ANN. art. 36.14

(West 2007). “[I]f a jury-charge instruction is not derived from the penal code, it is not

‘applicable law’ under art[icle] 36.14.” Kirsch, 357 S.W.3d at 651. “The appellant is, of

course, entitled to an instruction on every defensive issue raised by the evidence,

‘whether that evidence is weak or strong, unimpeached or uncontradicted, and regardless

of what the trial court may or may not think about the credibility of the defense.’” Allen,

253 S.W.3d at 267.

                                    III. SELF DEFENSE

       In her first issue, Campos contends that the trial court committed fundamental error

by omitting from the application paragraphs of the jury charge an instruction on the law of

self defense. See TEX. PENAL CODE ANN. § 9.31 (West 2011) (“self defense”).

A. Applicable Law

       Section 9.31 of the Texas Penal Code provides for self defense in relevant part as

follows:



                                             3
       (a) Except as provided in Subsection (b), 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. . . .

       (b) The use of force against another is not justified:

               (1) in response to verbal provocation alone;

               (2) to resist an arrest or search that the actor knows is being made
               by a peace officer, or by a person acting in a peace officer’s presence
               and at his direction, even though the arrest or search is unlawful,
               unless the resistance is justified under Subsection (c);

               (3) if the actor consented to the exact force used or attempted by the
               other;

               (4) if the actor provoked the other’s use or attempted use of unlawful
               force, unless:

                       (A) the actor abandons the encounter, or clearly
                       communicates to the other his intent to do so reasonably
                       believing he cannot safely abandon the encounter; and

                       (B) the other nevertheless continues or attempts to use
                       unlawful force against the actor; or

               (5) 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:

                       (A) carrying a weapon in violation of Section 46.02; or

                       (B) possessing or transporting a weapon in violation of
                       Section 46.05. . . .

       (d) The use of deadly force is not justified under this subchapter except as
       provided in Sections 9.32, 9.33, and 9.34.

Id. § 9.31(a), (b), (d).

       Section 9.32 of the Texas Penal Code provides for the use of deadly force in

relevant part as follows:

       (a) A person is justified in using deadly force against another:

                                              4
              (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; or

                      (B) to prevent the other’s imminent commission of aggravated
                      kidnapping, murder, sexual assault, aggravated sexual
                      assault, robbery, or aggravated robbery.

Id. § 9.32(a) (West 2011).

       Section 9.33 of the Texas Penal Code provides for defense of a third person as

follows:

       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 (West 2011).

B. Jury Charge

       In the abstract portion of the jury charge, the trial court instructed the jury on the

law of self defense and the use of deadly force under Sections 9.31 and 9.32 of the Texas

Penal Code, respectively. See id. §§ 9.31–.32. Specifically, the charge instructed the

jury in relevant part as follows:

       A person is justified in using force or deadly force against another if the
       actor would be justified in using force against the other in the first place, as

                                              5
       above set out, and when the actor reasonably believes that such force or
       deadly force is immediately necessary to protect oneself against the other
       person’s use or attempted use of unlawful deadly force. . . .

       When a person is attacked with unlawful deadly force, or he reasonably
       believes he is under attack or attempted attack with unlawful deadly force,
       and there is created in the mind of such person a reasonable expectation
       or fear of death or serious bodily injury, then the law excuses or justifies
       such person in resorting to deadly force by any means at his command to
       the degree that he reasonably believes immediately necessary, viewed
       from his standpoint at the time, to protect himself from such attack or
       attempted attack. It is not necessary that there be an actual attack or
       attempted attack, as a person has a right to defend his life and person from
       apparent danger as fully and to the same extent as he would had the danger
       been real, provided that he acted upon a reasonable apprehension of
       danger, as it appeared to him from his standpoint at the time, and that he
       reasonably believed such deadly force was immediately necessary to
       protect himself against the other person’s use or attempted use of unlawful
       deadly force.

       You are instructed that it is your duty to consider evidence of all the relevant
       facts and circumstances surrounding the alleged killing and assaults and
       the previous relationship existing between the deceased [and the] third
       party and the previous relationship, if any, existing between the deceased
       and the accused, and, in considering all the foregoing, you should place
       yourselves in defendant’s position and view the circumstances from her
       standpoint alone at the time in question.

In the abstract portion of the jury charge, the trial court also instructed the jury on the law

regarding defense of a third person under Section 9.33 of the Texas Penal Code. See

id. § 9.33.

       On appeal, Campos contends that the trial court erred in failing to include an

instruction on self defense in the application paragraphs of the jury charge. See id. §§

9.31–.32. With respect to Count I, the alleged murder of Matthew Garcia, the jury

charge’s application paragraphs instructed the jury in relevant part as follows:

       Now bearing in mind the foregoing instructions, if you believe from the
       evidence beyond a reasonable doubt, that the defendant, Sophia Campos,
       on or about the 8th day of August, 2010, in the County of Kleberg and State
       of Texas, as alleged in the indictment, did then and there,

                                              6
       1) with the intent to cause serious bodily injury to Matthew Garcia,
       commit an act clearly dangerous to human life that caused the death
       of Matthew Garcia, by stabbing Matthew Garcia, and the defendant
       did then and there use or exhibit a deadly weapon, to-wit: a knife or
       a sharp object during the commission of said act, or

       2) intentionally or knowingly commit or attempt to commit an act
       clearly dangerous to human life, to wit: stabbing Matthew Garcia, that
       caused the death of Matthew Garcia, and the defendant was then
       and there in the course of intentionally or knowingly committing a
       felony, to wit: aggravated assault, and said death of Matthew Garcia
       was caused in the course of and in furtherance of the commission of
       or attempt to commit said felony, and the defendant did then and
       there use or exhibit a deadly weapon, to-wit: a knife or a sharp object
       during the commission of said act,

then you will find the defendant guilty of the offense of Murder as alleged in
Count I and so say by your verdict;

Or, if you believe from the evidence beyond a reasonable doubt that
someone other than Sophia Campos on or about the 8th day of August,
2010, in the County of Kleberg and State of Texas, . . . did then and there,

       1) with the intent to cause serious bodily injury to Matthew Garcia,
       commit an act clearly dangerous to human life that caused the death
       of Matthew Garcia, by stabbing Matthew Garcia, and that that person
       did then and there use or exhibit a deadly weapon, to-wit: a knife or
       a sharp object during the commission of said act, or

       2) intentionally or knowingly commit or attempt to commit an act
       clearly dangerous to human life, to wit: stabbing Matthew Garcia, that
       caused the death of Matthew Garcia, and that that person was then
       and there in the course of intentionally or knowingly committing a
       felony, to wit: aggravated assault, and said death of Matthew Garcia
       was caused in the course of and in furtherance of the commission of
       or attempt to commit said felony, and the defendant did then and
       there use or exhibit a deadly weapon, to-wit: a knife or a sharp object
       during the commission of said act,

and you further find and believe beyond a reasonable doubt that

       1) Sophia Campos, acting with intent to promote or assist the other
       person to commit said offense, solicited, encouraged, directed,
       aided, or attempted to aid the other person to commit said offense,
       or

                                      7
       2) that said offense was committed by the other person in the attempt
       to carry out a conspiracy to commit another felony and in furtherance
       of the unlawful purpose, and that Sophia Campos was a
       coconspirator to the other felony, and that Sophia Campos should
       have anticipated that said offense would be committed as a result of
       the carrying out of the conspiracy, whether or not you believe Sophia
       Campos intended the commission of said offense

then you will find the defendant guilty of the offense of Murder as alleged in
Count I in the same manner as if you found that the offense was committed
by the defendant’s own conduct, and so say by your verdict.

If you do not so believe, or if you have a reasonable doubt thereof, you will
acquit the defendant and say by your verdict, “Not Guilty,” as to Count I.

Now, if you find from the evidence beyond a reasonable doubt that on or
about the 8th day of August, 2010, in Kleberg County, Texas, the defendant,
Sophia Campos, did with the intent to cause serious bodily injury to Matthew
Garcia, commit an act clearly dangerous to human life that caused the death
of Matthew Garcia, by stabbing Matthew Garcia, and the defendant did then
and there use or exhibit a deadly weapon, to-wit: a knife or a sharp object
during the commission of said act, or intentionally or knowingly commit or
attempt to commit an act clearly dangerous to human life, to wit: stabbing
Matthew Garcia, that caused the death of Matthew Garcia, and the
defendant was then and there in the course of intentionally or knowingly
committing a felony, to wit: aggravated assault, and said death of Matthew
Garcia was caused in the course of and in furtherance of the commission
of or attempt to commit said felony, and the defendant did then and there
use or exhibit a deadly weapon, to-wit: a knife or a sharp object during the
commission of said act, but you further find from the evidence, or you have
a reasonable doubt thereof, that at that time another person was under
attack or attempted attack from the said Matthew Garcia, and that the
defendant reasonably believed, as viewed from her standpoint, that such
force as she used, if any, was immediately necessary to protect another
against such attack or attempted attack, and so believing, she stabbed
Matthew Garcia, then you will acquit the defendant and say by your verdict,
“not guilty” as to Count I.

However, if you find and believe from the evidence beyond a reasonable
doubt that the defendant, Sophia Campos, or the person Sophia Campos
intended to defend, if any, immediately before the difficulty, then and there
did some act, or used some language, or did both, as the case may be, with
the intent on her, the defendant’s, part to produce the occasion for killing or
injuring Matthew Garcia, and to bring on the difficulty with the said Matthew
Garcia, and that such words and conduct on defendant’s part, if there were

                                      8
       such, were reasonably calculated to, and did, provoke a difficulty, and that
       on such account the said Matthew Garcia attacked the defendant or
       another, or reasonably appeared to defendant to so attack her or to be
       attempting to so attack her or the other person, and that the defendant
       then killed or injured the said Matthew Garcia by the use of deadly force, to
       wit, by stabbing Matthew Garcia, in pursuance of her original design, if you
       find there was such design, then you will find the defendant guilty of murder.
       On the other hand, if you find from the evidence that the acts done or
       language used by the defendant, if any, were not, under the circumstances,
       reasonably calculated or intended to provoke a difficulty or an attack by
       deceased upon the defendant or another, or if you have a reasonable
       doubt thereof, then, in such event, defendant’s right of defense of a third
       party would in no wise be abridged, impaired, or lessened, and, if you so
       find, or if you have a reasonable doubt thereof, you will decide the issue of
       defense of a third party in accordance with the law on that subject, wholly
       disregarding and without reference to the law on the subject of provoking
       the difficulty.

       Whatever your verdict as to Count I, you shall proceed to consider Count II.

       In the foregoing quotation, we have added emphasis to the specific language in

the application paragraphs referring to an “attack” upon Campos by the decedent,

Matthew Garcia, because in our view, the emphasized language goes to the issue of self

defense, not defense of a third person; however, it is clear from the context that the trial

court used the language to instruct the jury on the law of defense of a third person. See

id. §§ 9.31–.33. The same instruction on the defense of a third person and the same

language referring to an “attack” on Campos by the decedent also appears in the

application paragraphs for the four counts of alleged aggravated assault.

C. Arguments on Appeal

       Campos argues that the application paragraphs for all five counts were erroneous

because they did not permit the jury to reach a verdict of not guilty based on self defense.

See id. §§ 9.31–.32. The State argues that Campos waived this issue by failing to request

an instruction on self defense and by failing to object to the trial court’s omission of self



                                             9
defense from the application paragraphs of the jury charge.           See TEX. R. APP. P.

33.1(a)(1). According to the State, even if Campos had made a timely request and

objection, she still would be unable to establish reversible error because there was no

evidence at trial raising the issue of self defense. See Alonzo v. State, 353 S.W.3d 778,

781 (Tex. Crim. App. 2011) (“If there is some evidence that a defendant’s actions were

justified under one of the provisions of Chapter 9, the State has the burden of persuasion

to disprove the justification beyond a reasonable doubt.”).

D. Error in the Jury Charge

       “The trial judge is ‘ultimately responsible for the accuracy of the jury charge and

accompanying instructions.’” Vega v. State, 394 S.W.3d 514, 518 (Tex. Crim. App. 2013)

(quoting Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)). Article 36.14

states that “the judge shall, before the argument begins, deliver to the jury, except in pleas

of guilty, where a jury has been waived, a written charge distinctly setting forth the law

applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14. “The trial judge has the

duty to instruct the jury on the law applicable to the case even if defense counsel fails to

object to inclusions or exclusions in the charge.” Vega, 394 S.W.3d at 519. “But Article

36.14 imposes no duty on a trial judge to instruct the jury sua sponte on unrequested

defensive issues because an unrequested defensive issue is not the law ‘applicable to

the case.’” Id. (citing Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998)). “A

defendant cannot complain on appeal about the trial judge’s failure to include a defensive

instruction that he did not preserve by request or objection: he has procedurally defaulted

any such complaint.” Id.




                                             10
       “However, if the trial judge does charge on a defensive issue (regardless of

whether he does so sua sponte or upon a party’s request), but fails to do so correctly, this

is charge error subject to review under Almanza.” Id. “If there was an objection, reversal

is required if the accused suffered ‘some harm’ from the error.” Id. “If no proper objection

was made at trial, a reversal is required only if the error caused ‘egregious harm.’” Id.

       The State argues that Campos waived her issue on appeal under Posey. See

Posey, 966 S.W.2d at 62. “But this case is not like Posey,” as the Texas Court of Criminal

Appeals recently explained in Vega:

       Posey had complained on appeal that the trial judge reversibly erred by not
       sua sponte instructing the jury on the defense of mistake of fact. Posey had
       not requested this instruction, nor had he objected to its absence in the jury
       charge, and the trial judge gave no mistake-of-fact instruction whatsoever.
       There was no error, because mistake of fact had not become “law
       applicable to the case.”

Vega, 394 S.W.3d at 519. As the Texas Court of Criminal Appeals held in Barrera v.

State, once the jury is charged on a defensive issue, a flaw in that charge is error:

       This case presents a different issue from that in Posey, however. Rather
       than omitting an instruction altogether, the trial court in this case failed to
       apply an abstract instruction to the facts of the case. That is to say, even
       without a request, the trial court included the law of self-defense in the
       charge to the jury. A trial court has no duty to sua sponte charge the jury
       on unrequested defensive issues raised by the evidence. However, having
       undertaken on its own to charge the jury on this issue, the trial court in this
       case signaled that self-defense was “the law applicable to the case.”
       Therefore, any flaw in the charge on self-defense amounts to an error in the
       charge, even under the reasoning of Posey.

Barrera v. State, 982 S.W.2d 415, 416 (Tex. Crim. App. 1998) (citations omitted). Thus,

in Barrera, the Texas Court of Criminal Appeals held that it was error to include an

abstract self-defense instruction in the jury charge and then fail to instruct the jury to acquit

if it had a reasonable doubt on self defense. Id. at 416–17. Following Barrera, we hold



                                               11
that the trial court erred by including an abstract self-defense instruction in the jury charge

and then failing to instruct the jury to acquit if it had a reasonable doubt on self defense.

See id.

E. Harm Analysis

       Under Almanza, an appellant who complains on appeal about un-objected-to error

in the jury charge, as in this case, “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.         We assess whether Campos has suffered

egregious harm “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. “Egregious

harm is a difficult standard to prove and such a determination must be done on a case-

by-case basis.” Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011) (quotations

omitted). “Errors which result in egregious harm are those that affect the very basis of

the case, deprive the defendant of a valuable right, vitally affect the defensive theory, or

make a case for conviction clearly and significantly more persuasive.” Id. at 490.

       The first Almanza factor is “the entire jury charge.” Almanza, 686 S.W.2d at 171.

In this case, the jury charge consists of twenty-four pages covering five different counts,

each of which includes one or more application paragraphs with an instruction on defense

of a third person. See TEX. PENAL CODE ANN. § 9.33. As set forth above, the abstract

portion of the jury charge included an instruction on self defense and the use of deadly

force, but the application paragraphs did not instruct the jury to acquit Campos of any of

the five counts alleged by the State if they found she was acting in self defense. Id. §



                                              12
9.31–.32. The error went to the “heart and soul” of the jury charge because the application

paragraphs specify “the factual circumstances under which the jury should convict or

acquit.” Vasquez v. State, 389 S.W.3d 361, 367 (Tex. Crim. App. 2012).

        The second Almanza factor is “the state of the evidence, including the contested

issues and weight of probative evidence.” Almanza, 686 S.W.2d at 171. Campos’s guilt

or innocence was a hotly contested issue at trial. The State’s witnesses testified to facts

that, if believed, supported Campos’s conviction for murder and four counts of aggravated

assault.1 The State agrees that Campos’s evidence raised the issue of whether she was

acting in defense of a third person; however, the State maintains, and we agree, that

Campos did not testify or offer any evidence that, if believed, would have supported a self

defense claim. See Allen, 253 S.W.3d at 267–68 (“[I]n an egregious-harm analysis, it is

appropriate to consider the plausibility of the evidence raising the defense, as at least one

factor among others.”). Thus, the omission of an instruction on self defense from the

application paragraphs of the jury charge did not “touch[] upon a vital aspect” of Campos’s

defense.     See id. at 266.       Accordingly, the second Almanza factor weighs against

Campos.

        The third Almanza factor is “the argument of counsel.” Almanza, 686 S.W.2d at

171. As set forth above, Campos was charged with murder and aggravated assault for

her alleged role in the killing of Matthew Garcia. Campos was charged with two counts

of aggravated assault for the alleged striking and stabbing of Ernesto Garza, and she was

charged with one count of aggravated assault for the alleged stabbing of Jason Garcia.



        1We note that Campos has not challenged the sufficiency of the evidence to prove her guilt beyond
a reasonable doubt on any of the five counts.


                                                   13
In his opening statement at trial, Campos’s attorney told the jury that “what you’ll find at

the very end is that there is no evidence that Sophia Campos stabbed anybody. There

is no evidence that Sophia Campos solicited, encouraged, aided, [or] directed anybody

to stab another person much less commit a murder.”           Counsel explained what he

expected the evidence to show:

       Some witnesses will come forward and say, Yes, Ms. Campos [was]
       pointing fingers, doing this, egging them on, walks up to her boyfriend,
       Danny, and says, Either do something or I’ll fucking do it. Walks up to a
       man 6’2, 250, hits him, [and] everybody jumps in. That’s what some
       witnesses will say. Other witnesses will say that words [were] exchanged
       between Matt Garcia and her boyfriend, Danny Gonzalez, who’s 5’10, 200
       pounds at which point some will say that Danny hit Matt first, the fight
       started.

       The other story will be from some witnesses that will testify here that words
       were exchanged between Matt and Danny. Matt hits Danny, knocked him
       to the ground and is on top of him pounding him when the fight starts.

       A whole, whole bunch of stories[;] all very different. But they all end the
       same. Matt was stabbed 20 times violently. . . .

       And you will see and hear Ms. Campos’s statement [on] the night of the
       murder and judge for yourself if that [is] someone [who] was involved not
       only in aggravated assault but in assault that led to the murder of Matthew
       Garcia.

       You’ll get to see her and hear her that night. When it’s all said and done,
       when everybody has testified, when all the stuff has been admitted and we
       come forward, you will have one clear conclusion. We don’t know what
       happened that night. . . .

       [O]ne thing is clear. Sophia is not guilty of murder, she’s not guilty of
       aggravated assault, she’s not guilty as a party, and it would be very crystal
       clear when this case is over with.

In his opening statement, counsel did not assert or allude to the possibility that Campos

was acting in self defense.




                                            14
        During closing arguments, Campos’s attorney emphasized the discrepancies in

the various accounts given by the witnesses for the State in terms of how the altercation

began and the various roles played by the different actors, particularly Campos. Counsel

acknowledged that there was eyewitness testimony of Campos striking Matthew Garcia

with her high heel shoes. However, counsel poked holes in this testimony and contrasted

it with other conflicting testimony from other witnesses who did not see Campos strike

Matthew Garcia. Campos’s attorney asserted his client was not guilty. One theory

counsel advanced was that Campos was acting in defense of her boyfriend, Daniel

Gonzalez. Counsel never asserted or alluded to the possibility that Campos was acting

in self defense. For its part, the State asserted in its closing argument that Campos incited

the entire melee—that Campos either attacked Matthew Garcia first or caused Daniel

Gonzalez to do so. The State did not assert or allude to the possibility that Campos was

acting in self defense. Therefore, the third Almanza factor weighs against Campos.

        The fourth Almanza factor is “any other relevant information revealed by the record

of the trial as a whole.” Id. Here, we reiterate that Campos never confessed to any of the

alleged offenses. “An instruction on a confession-and-avoidance defense, . . . [such as

self defense or defense of a third person], is appropriate 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.” Cornet v. State, PD-0205-13, 2013 WL 5925772, at *4 (Tex. Crim. App. Nov.

6, 2013) (quotations omitted); Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App.

2007).2 Therefore, it could be argued that Campos was not entitled to an instruction on


        2 Nevertheless, “in a handful of cases . . . [the Texas Court of Criminal Appeals has] ignored the
confession and avoidance doctrine altogether.” Juarez v. State, 308 S.W.3d 398, 403 (Tex. Crim. App.

                                                   15
self defense or defense of a third person; however, the State concedes that the evidence

raised the issue of defense of a third person. In any event, the trial court included defense

of a third person in the jury charge and that was the central defensive theory requested

and argued by Campos’s attorney. The record does not reflect any effort on the part of

Campos’s attorney to assert, present evidence, or request submission of the issue of self

defense, and we are mindful “that which defensive issues to request are strategic

decisions generally left to the lawyer and the client.” Posey, 966 S.W.2d at 63. Based

on the foregoing, we conclude that the fourth Almanza factor weighs against Campos.

        In sum, we cannot conclude that Campos suffered “egregious harm.” Almanza,

686 S.W.2d at 171. Given that Campos’s attorney never asserted the defensive theory

of self defense, we cannot conclude that Campos “has not had a fair and impartial trial”

due to the trial court’s failure to include an instruction on self defense in the application

paragraphs of the jury charge. Id. Accordingly, we overrule Campos’s first issue.

                                          IV. BURDEN OF PROOF

        In her second issue, Campos contends that the trial court “misapplied the law and

inverted the burden of proof” on defense of a third person in the application paragraphs

of the jury charge. Campos argues in relevant part as follows:

        It should first be noted that the instruction is grammatically at odds with the
        law. The use of the phrase “or you have a reasonable doubt thereof” at
        lines 14–15 of page 8 of 24 stands the law on its head. It tells the jury that
        if they have a reasonable doubt that another person was under attack or
        attempted attack by Matthew Garcia and she reasonably believed such an
        attack was occurring and stabbed Garcia then they should acquit her.
        Alternatively, it could be read to say that if they have a reasonable doubt
        that she reasonably believed such an attack was occurring and she stabbed


2010). “In Martinez v. State, for instance, . . . [the Texas Court of Criminal Appeals] held that the appellant
was entitled to an instruction on self-defense even though he claimed that he did not intend to kill the victim.”
Id. (citing Martinez v. State, 775 S.W.2d 645, 647 (Tex. Crim. App. 1989)).

                                                      16
      Garcia then they should acquit. In either case it is an improper and
      extremely confusing allocation of the burden.

      We quoted the relevant language from Count I, the alleged murder of Matthew

Garcia, in connection with Campos’s first issue. The same language is found in the

application paragraphs for Counts II–V; however, Campos’s attorney has clearly limited

the issue to the language in Count I. For ease of reference, we will quote the relevant

language again:

      Now, if you find from the evidence beyond a reasonable doubt that on or
      about the 8th day of August, 2010, in Kleberg county, Texas, the defendant,
      Sophia Campos, did with the intent to cause serious bodily injury to Matthew
      Garcia, commit an act clearly dangerous to human life that caused the death
      of Matthew Garcia, by stabbing Matthew Garcia, and the defendant did then
      and there use or exhibit a deadly weapon, to-wit: a knife or a sharp object
      during the commission of said act, or intentionally or knowingly commit or
      attempt to commit an act clearly dangerous to human life, to wit: stabbing
      Matthew Garcia, that caused the death of Matthew Garcia, and the
      defendant was then and there in the course of intentionally or knowingly
      committing a felony, to wit: aggravated assault, and said death of Matthew
      Garcia was caused in the course of and in furtherance of the commission
      of or attempt to commit said felony, and the defendant did then and there
      use or exhibit a deadly weapon, to-wit: a knife or a sharp object during the
      commission of said act, but you further find from the evidence, or you have
      a reasonable doubt thereof, that at that time another person was under
      attack or attempted attack from the said Matthew Garcia, and that the
      defendant reasonably believed, as viewed from her standpoint, that such
      force as she used, if any, was immediately necessary to protect another
      against such attack or attempted attack, and so believing, she stabbed
      Matthew Garcia, then you will acquit the defendant and say by your verdict,
      “not guilty” as to Count I.

(emphasis added).

      The Texas Penal Code provides in relevant part, “If the issue of the existence of a

defense is submitted to the jury, the court shall charge that a reasonable doubt on the

issue requires that the defendant be acquitted.” TEX. PENAL CODE ANN. § 2.03(d) (West

2011). As set forth above, the jury charge instructed the jury to acquit Campos if they



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had a reasonable doubt about whether she was acting in defense of a third person. This

is consistent with the law set forth above. See id. Therefore, we reject Campos’s

assertion that the trial court “misapplied the law.”

       Furthermore, Campos has not explained how the instruction purportedly “inverted

the burden of proof.” The two interpretations of the relevant language advanced by

counsel are consistent with the State having “the ultimate burden of persuasion when

confronted with a section 2.03 defense.” Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim.

App. 2003)). “The State’s burden is proving its case beyond a reasonable doubt.” Id.

The instruction reflects as much.       Accordingly, we conclude that Campos has not

demonstrated any error in the jury charge with respect to the reasonable doubt language

used in connection with the instruction on the defense of a third party.      Therefore,

Campos’s second issue is overruled.

                                      V. CONCLUSION

       We affirm the trial court’s judgment.




                                                    NORA L. LONGORIA
                                                    Justice


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

Delivered and filed the
6th day of March, 2014.




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