                                       In The

                                 Court of Appeals

                     Ninth District of Texas at Beaumont

                               ___________________

                                NO. 09-16-00458-CR
                               ___________________


                  PRESTON WILLIAM REPMAN, Appellant

                                          V.

                       THE STATE OF TEXAS, Appellee

__________________________________________________________________

                On Appeal from the 75th District Court
                       Liberty County, Texas
                      Trial Cause No. CR32307
__________________________________________________________________

                           MEMORANDUM OPINION

      Preston William Repman appeals from a final judgment following a trial in

which a jury found him guilty of murdering his grandfather. See Tex. Penal Code

Ann. § 19.02 (West 2011). In a single issue, Repman argues the trial court erred and

caused egregious harm by giving the jury a charge that included an abstract

paragraph that informed the jury that it could consider a defendant’s use of deadly

force to be justified if the defendant acted in the defense of a third person, but that

                                          1
the charge then failed to include further instructions explaining how the jury was

required to apply the concept to the facts admitted during Repman’s trial. At trial,

Repman failed to lodge any objections to the jury charge. Because the trial court’s

alleged error did not result in egregious harm, we affirm.

                                     Background

      On the evening of November 1, 2015, Repman and his grandfather, Melvin

Linck, became involved in a heated argument inside Melvin’s home. Melvin,

Melvin’s wife, Murl, and Repman’s friend, David Strange, were the only

eyewitnesses to the altercation that occurred a short time after the argument began.

At one point, after the men exchanged blows, they threatened to kill each other.

Melvin went to his bedroom to retrieve a gun; however, Murl followed him into the

bedroom, where she took possession of her husband’s guns. When they returned

from their bedroom, Repman stabbed Melvin in the chest with a knife. Shortly after

he was stabbed, Melvin bled to death. According to Dr. John Ralston, a forensic

pathologist who testified in Repman’s trial, the stab wound to Melvin’s chest “cut

the base of the aorta[,]” and caused his death.

      In January 2016, a Liberty County grand jury indicted Repman for Melvin’s

murder. Repman’s trial began in October 2016. Although Repman did not testify in

the guilt-innocence phase of the trial, his attorney told the jury in opening statement

that Repman “stab[bed] his grandfather in the chest.” Repman’s attorney explained
                                          2
that evidence would be presented in the trial supporting Repman’s claim that he

stabbed Melvin in self-defense, and that “after all the evidence is presented[,] you

will conclude that Preston acted in self-defense.” In opening statement, Repman’s

attorney did not suggest that the evidence in the trial would show that Repman

stabbed Melvin to defend Murl.

      Murl was the only eyewitness who testified during the trial regarding what

happened in the home the night Melvin was killed. During the trial, Murl explained

that approximately one week before the altercation occurred, she and Melvin agreed

that they wanted Repman to move out of their home. According to Murl, although

she told Repman he had to move, he refused.

      On November 1, 2015, Melvin, accompanied by Murl, returned home after

gambling at a Louisiana casino with their sons. Shortly after they returned, Melvin

and Repman became involved in a heated argument. Melvin told Repman that he

“[had] to go.” While the two were arguing, Melvin accused Repman of lying to him

about how many miles he had driven Melvin’s truck. In the course of the argument,

Melvin grabbed Repman’s shirt. When Repman attempted to break Melvin’s grip,

“[Repman] hit Melvin in the chin and knocked him over backwards.” The men

continued to exchange blows while fighting on the floor. Ultimately, Strange, who

Repman had invited over while the Lincks were gone, pulled Repman off Melvin.

After the two men were separated, they exchanged verbal threats. According to
                                         3
Murl, Repman was very angry at that point, and he said: “I will kill you, you old

bastard.” Melvin responded to Repman’s threat, stating: “I will show you. I have

something for you.” Melvin left the room where the fight occurred and went into his

bedroom.

      Murl testified that she followed Melvin into their bedroom, where she found

Melvin in the process of retrieving a gun. Murl closed and locked the bedroom door,

and she acquired all three of the guns that Melvin kept in the bedroom. According

to Murl, she was carrying three unloaded guns as Melvin followed her from the

bedroom into the dining room. As they left the bedroom, Melvin had his hands on

her shoulders.

      When Strange saw the Lincks enter the dining room, Strange yelled:

“[Repman], he has got a gun.” Murl denied that Melvin took any guns from the

bedroom. However, in opening statement, Repman’s attorneys claimed that Repman

might have seen the barrel of a gun pointed in his direction because Murl entered the

dining room with a gun tucked under her arm. When Murl entered the dining room,

Repman retreated to the kitchen, where he got a knife. Murl stood between the two

men as Repman approached them with a knife. Murl explained, at that point that

evening, “I thought he was going to stab me or Melvin.” Melvin pushed Murl aside,

stepped forward, and then lunged at Repman, yelling: “I will kill you.” As Melvin

lunged forward, Repman stabbed him. On cross-examination, Murl agreed that she
                                         4
failed to tell the police when she was interviewed that Repman verbally threatened

to kill Melvin while they were fighting on the floor. Murl also testified that on the

night Melvin was killed, she “was never worried that [Melvin] would hurt [her,]”

and that Repman did not have a reason to assume that Melvin was a danger to her.

      Only one witness, Sergeant Josh Cummins, was called to testify on Repman’s

behalf during the guilt-innocence phase of his trial. Sergeant Cummins, an employee

of the Liberty County Sheriff’s Office, explained in his testimony that he talked to

Repman after taking him to jail. According to Sergeant Cummins, Repman told him

that he acted in self-defense or to defend another when he stabbed Melvin.

      At the conclusion of the trial, the jury found Repman guilty of murder.

Approximately thirty days later, the trial court1 held a sentencing hearing. When the

hearing concluded, the trial court assessed Repman’s sentence at life in prison.

                                     The Charge

          Generally, Texas law justifies a defendant’s use of deadly force to defend

another against someone else’s use of unlawful deadly force if the defendant

reasonably believes that using deadly force is immediately necessary to protect a

third person from imminent harm. See Tex. Penal Code Ann. § 9.33 (West 2011).



      1
       Before the trial began, Repman elected to have the trial court assess his
punishment.

                                          5
In one appellate issue, Repman complains the trial court erred by failing to instruct

the jury in the application section of the charge that the State was required to prove,

beyond reasonable doubt, that Repman was not acting to defend Murl from Melvin

when Repman stabbed him, and that if the State failed to prove that Repman had not

acted in the defense of another, the jury was required to return a verdict finding

Repman not guilty of murder.

          The abstract paragraphs in the charge submitted by the trial court to the jury

in Repman’s case include an instruction stating that the jury had heard evidence that

Repman believed his use of deadly force was necessary to defend “a third person

against Melvin[’s] use or attempted use of unlawful deadly force.” On appeal,

Repman complains that the application paragraphs in the charge failed to explain to

the jury the steps that it was required to take to determine whether the defense

applied based on the testimony and evidence the jury considered in his trial.2 In



      2
         The charge includes application paragraphs that allowed the jury to consider
whether Repman was acting in self-defense. The application paragraphs relevant to
the instructions on self-defense explain, in part, that if the jury found the State had
proven the offense of murder beyond reasonable doubt, “that self-defense does not
apply to the defendant’s conduct.” Other parts of the application paragraphs on self-
defense explain that the State was required to overcome the evidence raising an issue
on self-defense. Finally, the application section of the charge relevant to self-defense
instructs that if the State failed to prove that Repman was not acting in self-defense,
that the jury was required to find for Repman on the issue and to find him “not
guilty.”

                                            6
Repman’s case, we note that Repman’s attorneys did not object to any omissions in

the charge.3 In his brief, Repman concludes that he is entitled to another trial because

the charge was incomplete and the absence of instructions in the application

paragraphs of the charge explaining the steps the jury was required to take to resolve

whether Repman killed Melvin defending Murl caused egregious harm.

                                  Standard of Review

          When a defendant raises an issue alleging charge error for the first time on

appeal, we analyze the issue under the standards recognized in Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1985). Under Almanza, when the defendant has

failed to preserve his complaint about an alleged error in a charge, the case must be

reversed only if the error caused the defendant egregious harm. Id. (explaining that

egregious harm occurs if the error is so egregious and created such harm that the

defendant did not receive a fair and impartial trial).

      To evaluate the degree to which a defendant might have been harmed by

unpreserved error that exists in a jury charge, a reviewing court should consider “the

entire jury charge, the state of the evidence, including the contested issues and



      3
        The trial court conducted a charge conference to confer with the attorneys
regarding the court’s proposed charge. In the conference, the trial court asked
Repman’s attorneys if they had any objections to the proposed charge. In response,
one of Repman’s attorneys stated: “We have reviewed the charge, and we have no
objections.”
                                        7
weight of probative evidence, the argument of counsel and any other relevant

information revealed by the record of the trial as a whole.” Id.; see also Allen v.

State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008). “Errors that result in egregious

harm are those that affect ‘the very basis of the case,’ ‘deprive the defendant of a

valuable right,’ or ‘vitally affect a defensive theory.’” Ngo v. State, 175 S.W.3d 738,

750 (Tex. Crim. App. 2005) (quoting Hutch v. State, 922 S.W.2d 166, 171 (Tex.

Crim. App. 1996)).

                                          Analysis

      In Repman’s case, although the trial court instructed the jury on the issue of

self-defense, the jury found Repman guilty of murder. Based on the jury’s findings

on the self-defense issue, the jury must have determined that the State had proven,

beyond reasonable doubt, that Repman did not believe his conduct was immediately

necessary to protect himself against Melvin’s use of unlawful deadly force; or, that

Repman’s belief that he needed to use deadly force was not reasonable; or that

Repman provoked Melvin’s use of unlawful deadly force in the process of finding

Repman guilty. See Tex. Penal Code Ann. § 9.32(a)(2) (West 2011).

      Generally, when a jury was instructed on the issue of self-defense and finds

the defendant guilty, the jury has implicitly rejected the self-defense theory, a

determination that precludes the possibility that the defendant was justified in using

deadly force to defend a third person. Hernandez v. State, 914 S.W.2d 218, 224 (Tex.
                                          8
App.—El Paso 1996, pet. ref’d). In Repman’s case, the evidence before the jury,

when considered as a whole, established that although Melvin threatened to kill

Repman, he never threatened to kill Murl on the evening that Melvin was killed. See

Almanza, 686 S.W.2d at 171 (explaining that appeals courts should consider all of

the evidence admitted in the trial when reviewing for egregious harm). For example,

no testimony in the trial was introduced to show that Repman ever saw Melvin point

a gun at Murl. Second, when Melvin and Murl entered the dining room together after

they argued in their bedroom, Murl’s description of the struggle that occurred in the

bedroom—which is the only evidence the jury heard about that matter in the trial—

does not show that Melvin threatened to hurt Murl or that he injured her. Third, there

is no testimony in the trial indicating that Melvin ever physically injured or verbally

abused Murl in Repman’s presence or that he was aware that such an incident had

previously occurred. Fourth, since Repman did not testify, the only evidence from

which the jury might have inferred that Repman might have perceived that Murl was

in danger was based wholly on the evidence describing the events that occurred on

the evening of November 1. Fifth, Murl’s testimony in the trial revealed her

perspective about whether Melvin presented any danger that he might injure her on

the night Melvin was killed: she testified that she was not afraid of him and that she

did not need to be protected from him.



                                          9
      The abstract portion of the charge, which referenced that the jury had heard

evidence that Repman was defending Murl when he stabbed Melvin, is supported

solely by the response Sergeant Cummins provided to a question posed by one of

Repman’s attorneys who asked:

             Q. During that conversation [with Repman on the night of the

      occurrence,] did [Repman] tell you he acted in self-defense or in

      defense of another person?

             A. Yes.

Except for this answer, Sergeant Cummins did not testify about what Repman told

him on the night Melvin was killed. Repman did not testify in the trial, so there is no

other testimony that explains whether he ever thought that Melvin represented an

immediate threat to Murl. Standing alone, Sergeant Cummins’ answer to this leading

and compound question is insufficient to raise an issue that Repman’s actions were

justified because he reasonably believed that he was acting in Murl’s defense.

      We also look to the arguments of counsel in determining the extent to which

Repman suffered any egregious harm. During closing argument, the prosecutor

focused on Repman’s claim of self-defense. For example, the prosecutor argued that

the evidence in the trial showed that Melvin did not use any force against Repman

after Melvin came out of the bedroom. He also explained that when Murl and Melvin

returned from their bedroom, Melvin’s hands were on Murl’s shoulders, and that
                                          10
none of the testimony showed that Melvin ever displayed a gun while he was in the

dining room. The prosecutor concluded that the State’s evidence disproved any

evidence tending to suggest that Repman stabbed Melvin in self-defense.

      The attorney who argued for Repman in closing also focused on whether

Repman acted in self-defense. He argued that the evidence the State presented was

insufficient to disprove Repman acted in self-defense. Significantly, Repman’s

attorney did not point to any evidence in closing to argue that Repman believed that

Melvin had threatened Murl with the use of deadly force on the night the stabbing

occurred.

      On this record, Sergeant Cummins’ answer to a leading and compound

question about whether Repman told him he acted in self-defense and in defense of

a third person is insufficient, by itself, to raise an issue of material fact regarding

whether Repman was justified in using deadly force to protect Murl. Given the

testimony about the argument and the altercation that occurred in the Lincks’ home

on the evening that Melvin was killed, we are confident the jury would have rejected

any argument that Repman was acting to defend Murl even had the application

section of the charge fully explained the steps the jury was required to take to resolve

whether the State proved that Repman’s use of deadly force was not justified.

Therefore, we conclude the error, if any, caused no egregious harm. See Villarreal



                                          11
v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015) (noting that a conviction will

not be reversed unless the defendant suffers actual rather than theoretical harm).

      Because we have overruled Repman’s sole issue, we affirm the trial court’s

judgment.

      AFFIRMED.


                                              ______________________________
                                                     HOLLIS HORTON
                                                          Justice



Submitted on November 15, 2017
Opinion Delivered March 7, 2018
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




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