Affirmed; Opinion Filed February 27, 2018.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-17-00066-CR

                               ZAFAR ALI RAZA, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the 265th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F15-58310-R

                              MEMORANDUM OPINION
                            Before Justices Lang, Evans, and Schenck
                                    Opinion by Justice Evans
       Zafar Ali Raza was indicted for aggravated assault with a deadly weapon. Appellant pled

not guilty and, at trial, asserted defense of third person. A jury convicted appellant of aggravated

assault and assessed his punishment at eighteen years’ imprisonment. On appeal appellant

contends that the evidence is insufficient to disprove that he acted in defense of others or that his

conduct was justified by necessity. Appellant also contends he received ineffective assistance of

counsel due to counsel’s failure to request that instructions on the necessity justification and

presumption of reasonableness in defense of others be included in the jury charge. For the reasons

that follow, we affirm the judgment of conviction.
                                            BACKGROUND

        On October 2, 2015, Michael Rogers, the complainant, was shot in the face by appellant.

Appellant admitted he shot appellant but claimed the shooting was justified because Rogers was

endangering the lives of other persons.

        Evidence of the circumstances leading to the shooting was presented through witness

testimony and video surveillance. That evidence shows that appellant worked as a clerk at the

Peach Tree Food Mart located on the south end of a small strip shopping center on Walnut Hill

Lane in Dallas. Lupita’s Café, a pool hall, was at the north end of the center. There were a couple

of other stores in between the food mart and the pool hall. The businesses in the center shared a

small parking lot which also contained gas pumps located in front of the food mart. There were

two entrances or exits to the center, one coming off Walnut Hill close to the food mart, and one

off of Estate Lane, the side street close to the pool hall.

        Rogers and his wife, Tarsha,1 owned a moving company and carpet cleaning business.

They had three daughters, aged six, eight and fifteen. On October 2, 2015, they had just finished

a move and carpet cleaning in Mesquite when Rogers pulled in front of the gas pumps in front of

the food mart in order to replenish the gas in the U-Haul truck before returning it to the nearby

rental center. Tarsha was with the three girls driving the family’s SUV with a trailer attached

carrying the carpet cleaning equipment. She followed Rogers to the gas station. When Rogers got

out of the truck to pump the gas, he locked the doors with the keys inside, stranding the vehicle

and blocking the pump. Tarsha told Rogers that the SUV also needed gas, and after arguing with

each other, Rogers had Tarsha get out of the vehicle so he could pull it around to the other side of

pump.



    1
       At the time of the shooting, Rogers and Tarsha had been together since 2007 but were not married. They
officially got married in June, 2016.
                                                    –2–
        The U-Haul truck and SUV blocked both sides of the pump for about an hour while Tarsha

and Rogers tried to find someone to open up the U-Haul. During that time, appellant and another

store employee confronted Rogers and Tarsha about the vehicles blocking the gas pumps. After

they explained the situation to appellant, the two men went back into the store. Shortly afterwards,

another man came out and confronted Rogers and Tarsha using profanity and threatened to damage

the vehicle. As a result of that encounter, Tarsha called 911. At that point, several men started

walking quickly towards the SUV and Rogers jumped in the car. The men beat on the window,

kicked the driver’s side door, and attempted to open the driver’s door as Rogers tried to pull away.

Rogers had a difficult time maneuvering the vehicle with the trailer and jack-knifed the trailer

several times; he also hit a couple of other vehicles in the parking lot. Each time the SUV slowed,

the men attacked the vehicle again. One of the aggressors was pushed by Roger’s vehicle when it

lurched out of a jack-knife position. After being bumped, that individual advanced on the SUV

again. Physical evidence showed that the SUV sustained damage to the driver’s window and door

and that the driver’s side door handle had been torn off.

        When Rogers was finally able to maneuver the vehicle and trailer in a position to exit at

Walnut Hill, he was met by another vehicle attempting to enter the parking lot. At that point, the

video shows the SUV going in reverse and the trailer jackknifing. Detective Kreun testified that

the final rolling back and jackknife occurred after Rogers had been shot. Physical evidence shows

that the bullet that hit Rogers came through the driver’s side window and struck him in the face.

Rogers suffered injuries which included broken bones in his mouth and face, complete loss of

hearing in one ear, partial loss of hearing in the other ear, and an aneurysm from the fragments in

his carotid artery.

        Although appellant did not testify at trial, his statement to police was presented to the jury.

In his statement, appellant admitted that he fired the weapon. He stated two reasons for shooting

                                                 –3–
Rogers: he believed he was protecting the people in the parking lot because Rogers was trying to

run people over, and he believed Rogers was going to drive his vehicle into appellant’s store and

hit him.

                                            ANALYSIS

I.     Sufficiency of the Evidence – Defense of Third Person

       In appellant’s first issue, he contends that the evidence is legally insufficient for a rational

jury to have found that he did not act in defense of a third person.

       We review the legal sufficiency of the evidence to support a jury’s rejection of defense of

third person claim under the standard in Jackson v. Virginia, 443 U.S. 307, 319 (1979). In defense

of third person cases, this requires a court to review all of the evidence presented at trial in the

light most favorable to the prosecution to determine if any rational trier of fact would have found

the essential elements of the offense beyond a reasonable doubt and also would have found against

appellant on the defense of third person issue beyond a reasonable doubt. Braughton v. State, 522

S.W.3d 714, 727 (Tex. App.—Houston [1st. Dist.] 2017, pet. granted) (citing Saxton v. State, 804

S.W.2d 910, 914 (Tex. Crim. App. 1991).

       In this case, appellant was charged with aggravated assault with a deadly weapon by

intentionally, knowingly, and recklessly causing bodily injury to Rogers by shooting him with a

firearm.   A person commits aggravated assault with a deadly weapon if he intentionally,

knowingly, or recklessly causes bodily injury to another and uses or exhibits a deadly weapon

during the commission of the assault. TEX. PENAL CODE ANN. §§ 22.01(a)(1) (West Supp. 2017),

22.02(a)(2) (West 2011). A deadly weapon includes a firearm. TEX. PENAL CODE ANN. § 1.07(17)

(West Supp. 2017). The jury was also instructed on the definition of defense of a third person in

accordance with the applicable law. A person is justified in using deadly force against another to

protect a third person, “[s]o long as the accused reasonably believes that the third person would be

                                                 –4–
justified in using [deadly force] to protect himself. . . ” Smith v. State, 355 S.W.3d 138, 145 (Tex.

App.—Houston [1st. Dist.] 2011, pet. ref’d) (quoting Hughes v. State, 719 S.W.2d 560, 564 (Tex.

Crim. App. 1986); see TEX. PENAL CODE ANN. § 9.33 (West 2011). A person is justified in using

deadly force against another . . . when and to the degree the actor reasonably believes the deadly

force is immediately necessary to protect the actor against the other’s use or attempted use of

unlawful deadly force. See TEX. PENAL CODE ANN. § 9.32(a) (West 2011). A “reasonable belief”

is defined as one that would be held by an ordinary and prudent person in the same circumstances

as the actor. See TEX. PENAL CODE ANN. § 1.07(a)(42) (West Supp. 2017).

        A defendant has the burden of producing some evidence to support a claim of defense of

others. Braughton, 522 S.W.3d at 730 (citing Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim.

App. 2003)). Once the defendant does so, the State then bears the burden of persuasion to disprove

the raised defense. Id. The burden of persuasion does not require the State to produce evidence; it

requires only that the State prove its case beyond a reasonable doubt. Id. A determination of guilt

by the fact finder implies a finding against the defensive theory. Id.

        The issue of defense of a third person is a fact issue to be determined by the fact finder,

who is free to accept or reject the defensive issue. Saxton, 804 S.W.2d at 913–14. As the sole

judge of the weight and credibility accorded any witness's testimony, the fact finder is free to

believe or disbelieve the testimony of all witnesses, and to accept or reject any or all of the evidence

produced by the respective parties. Cleveland v. State, 177 S.W.3d 374, 380 (Tex. App.—Houston

[1st. Dist.] 2005, pet. ref’d).

        In his statement to the police, appellant admitted that he shot Rogers. He maintains,

however, that he shot Rogers to protect the people in the parking lot, and the other people on the

sidewalk in front of the food mart, and the people on the sidewalk between the food mart and the

pool hall. Appellant contends that he acted reasonably because the evidence, including his

                                                  –5–
statement, the 911 call he made, and the testimony of other witnesses, show that Rogers’s conduct

threatened people in the parking lot and threatened people on the sidewalk because they thought

he was going to drive into the food mart. The statements of appellant and his witnesses do not

conclusively prove a claim of defense of a third person. See London v. State, 325 S.W.3d 197, 203

(Tex. App.—Dallas 2008, pet. ref’d).

       Based upon the evidence in this case, the jury rationally could have rejected appellant’s

defense of third person theory. The jury viewed three different video recordings of the events

surrounding the shooting. The video from the pool hall shows an hour of events leading up to the

altercation. Two videos from the food mart show the actions of appellant and others prior to the

shooting and immediately after. In the videos, it is apparent that no one was in danger of being hit

by Rogers’s vehicle, that the only people that are near Rogers’s vehicle are the men attacking the

vehicle and that Rogers is trying to get away from the men but that the men keep coming after his

vehicle as it is moving forward. It is apparent from the videos that if Rogers was intent on hitting

somebody in the parking lot, he could have done so but instead drove his vehicle in a manner

indicating he was trying to get away. It is also apparent from the videos that just before Rogers

was shot, he was positioning his vehicle to head out of the Walnut Hill exit, as opposed to aiming

his vehicle to run forward or backward into the front of the store, as claimed by appellant. The

videos also showed that the bystanders, including appellant, were standing on the sidewalk in front

of the food mart as they watched the events unfold. The videos did not show anyone on the

sidewalk in front of the food mart trying to scramble out of the way of Rogers’s vehicle.

       Detective Kreun testified the physical evidence also indicated that Rogers was trying to

exit the parking lot and that no one was in danger of being hit. The evidence showed that the bullet

that hit Rogers came through the driver’s side window and struck him in the face, which placed

appellant, who was standing on the sidewalk in front of the food mart, beside the car and not in

                                                –6–
front of the car. Detective Kreun testified that after his investigation at the scene and viewing the

videos, he could find no evidence that anyone was in danger.

        Further, testimony from two defense witnesses, the manager of the pool hall and the

security guard for the pool hall, indicated that no one on the sidewalk in front of the pool hall or

in the parking lot near the pool hall was in danger of being hit by Rogers’s vehicle. The pool hall

manager stated that he was standing on the sidewalk and if he had been in danger, he would have

called 911 himself. The security guard testified that when he came out to the parking lot, Rogers

was coming in his direction and he shined his flashlight at Rogers but did not pull his gun because

he did not believe his life or any other person’s life was in danger; he thought Rogers was trying

to leave the parking lot.

        Finally, Rogers testified that he was still learning to maneuver the trailer. He testified that

he was frightened and trying to get away from the men who were attacking his vehicle in order to

protect his children. He testified that he did not think he could get out of any other exit and that

the only exit he knew was the Walnut Hill exit – the exit he had used to come into the parking lot.

He testified that when the security guard was shining the flashlight in front of him, he thought it

was a gun pointing towards him and that he was being told not to come that way. He testified that

all of his maneuvering of the SUV and trailer was him just trying to get to the exit he knew in order

to get out of the parking lot.

        Based upon the video and physical evidence, as well as the testimony of not only the State’s

witnesses, but also the defense witnesses, the jury could have reasonably concluded that contrary

to appellant’s statements, no people were in danger of being hit by Rogers’s vehicle when he was

heading towards the exit of the parking lot. Considering all of the evidence in the light most

favorable the verdict, we conclude a rational jury could have found the essential elements of




                                                 –7–
aggravated assault beyond a reasonable doubt and rejected appellant’s defense of third person

claim. Appellant’s first issue is overruled.

II.     Sufficiency of the Evidence – Defense of Necessity

        In appellant’s second issue he contends that the evidence is insufficient to disprove that

appellant’s conduct was justified by necessity. Appellant argues that although the defense of

necessity was not included in the jury charge, the hypothetically correct jury charge in this case

would include consideration of the necessity defense and that under the holding in Malik v. State,

the sufficiency of the evidence must be measured according to a hypothetically correct charge.

See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). We need not address appellant’s

claim because the “hypothetically correct jury charge” analysis is inapplicable under the facts of

this case.

        Malik provides that a hypothetically correct jury charge is one that accurately sets out the

law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof

or unnecessarily restrict the State’s theories of liability, and adequately describes the particular

offense for which the defendant was tried. Id. A hypothetically correct jury charge includes only

the defensive issues applicable to the case that the defendant timely requests or objects to the

omission from the jury charge. Tolbert v. State, 306 S.W.3d 776, 780 (Tex. Crim. App. 2010);

Posey v. State, 966 S.W.2d 57, 61–62 (Tex. Crim. App. 1998). Appellant did not ask to include

the defense of necessity in the jury charge, nor did he object to its omission. Therefore, the

necessity defense is not be considered in an evaluation of the sufficiency of the evidence to support

appellant’s conviction for aggravated assault. See Cervantes v. State, No. 07-14-00391-CR, 2015

WL 3610543, at *2 (Tex. App.—Amarillo June 9, 2015, no pet.) (not designated for publication);

Osborne v. State, No. 07-13-00156, 2015 WL 3463047, at *3, (Tex. App.—Amarillo May 29 2015,

pet. ref’d) (not designated for publication); Pruiett v. State, No. 05-12-00131-CR, 2013 WL

                                                –8–
1277861, at *2 (Tex. App.—Dallas Feb. 25, 2013, pet. ref’d) (mem. op., not designated for

publication). Appellant’s second issue is overruled.

III.   Ineffective Assistance of Counsel

       In appellant’s third and fourth issues, he contends that he received ineffective assistance of

counsel at trial because of counsel’s failure to request that instructions on the defense of necessity

and the presumption of reasonableness be included in the jury charge. We disagree.

       To prove a claim of ineffective assistance of counsel, appellant must show that (1) his trial

counsel’s performance fell below an objective standard of reasonableness and (2) there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different. Strickland v. Washington, 466 U.S. 668, 687–88 (1984); Lopez v. State,

343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Appellant has the burden to establish both prongs

by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App.

1998). “An appellant’s failure to satisfy one prong of the Strickland test negates a court’s need to

consider the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); see

also Strickland, 466 U.S. at 697.

       A.      Defense of Necessity Instruction

       Assuming, without deciding, that appellant was entitled to an instruction on the defense of

necessity, on this record, appellant cannot show how the result of the proceeding would have been

different had the jury charge included a necessity instruction.

       The necessity defense provides that conduct is justified if:

       (1) the actor reasonably believes the conduct is immediately necessary to avoid
       imminent harm;

       (2) the desirability and urgency of avoiding the harm clearly outweigh, according
       to ordinary standards of reasonableness, the harm sought to be prevented by the law
       proscribing the conduct; and



                                                 –9–
       (3) a legislative purpose to exclude the justification claimed for the conduct does
       not otherwise plainly appear.

TEX. PENAL CODE ANN. § 9.22 (West 2011). A proper charge on the defense of necessity includes

the first two subsections. See Williams v. State, 630 S.W.2d 640, 642–43 (Tex. Crim. App. 1982).

       The jury was instructed on defense of third person, as follows:

               You are instructed that under our law a person is justified in using force or
       deadly force against another to protect a third person if, under the circumstances as
       he reasonably believes them to be, such person would be justified in using force or
       deadly force to protect himself against the unlawful force or deadly force of another
       which he reasonably believes to be threatening the third person he seeks to protect,
       and he reasonably believes that his intervention is immediately necessary to protect
       the third person.

               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 against
       the other's use or attempted use of unlawful force.

              By the term “reasonable belief” as used herein is meant a belief that would
       be held by an ordinary and prudent person in the same circumstances as the
       defendant.

              A person is justified in using deadly force against another:

              (1) if the person would be justified in using force against the other; and

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

                  (A) to protect himself 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.

               “Deadly force” means force that is intended or known by the person using
       it to cause, or in the manner of its use or intended use is capable of causing, death
       or serious bodily injury.

       ....

               Now, therefore, bearing in mind the foregoing definitions and instructions,
       if you find from the evidence beyond a reasonable doubt that the defendant, Zafar
       Ali Raza, did unlawfully then and there intentionally or knowingly or recklessly
       cause bodily injury to Michael Rogers, hereinafter called complainant, by shooting
       complainant with a firearm, and said defendant did use or exhibit a deadly weapon
                                             –10–
       to wit; a firearm, during the commission of the assault, as alleged in the indictment,
       but you further find from the evidence, or you have a reasonable doubt thereof, that,
       that the defendant reasonably believed that deadly force when and to the degree
       used, if it was, was immediately necessary to protect an unknown individual against
       the use or attempted use of unlawful deadly force by Michael Rogers you will
       acquit the defendant and say by your verdict “not guilty.”

       The instructions and evidence in this case make the prejudice prong of the ineffective

assistance of counsel analysis analogous to the harm analysis in Rodriguez v. State, 524 S.W.3d

389, 395 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d). In Rodriguez, the Houston Court of

Appeals held that the appellant was not harmed by the omission of a necessity instruction when

the jury charge included a self-defense instruction. The court noted that the jury rejected

appellant’s claim of self-defense and found that none of the evidence and instructions concerning

self-defense set up any barriers that could have led to a finding of necessity without a finding of

self-defense. Id.

       Here, the jury rejected appellant’s claim of defense of third person. Thus, the jury found

that the State negated at least one essential element of defense of third person and proved beyond

a reasonable doubt either (1) appellant did not reasonably believe that a third person was in danger

of death or serious bodily injury, or (2) appellant did not reasonably believe that deadly force was

immediately necessary to protect a third person against Rogers’s use or attempted use of unlawful

deadly force. Id. (citing Barrios v. State, 389 S.W.3d 382, 398 (Tex. App.—Texarkana 2012, pet.

ref’d). If the jury rejected the defense of third person theory based on the first prong – no

reasonable belief that a third person was in danger – then the jury would have also rejected the

necessity defense because appellant did not reasonably believe that a specific harm was imminent.

If the jury rejected the defense of third person theory based on the second prong – no reasonable

belief that force was immediately necessary to protect a third person from Rogers – then the jury

would have also rejected the necessity defense because appellant did not reasonably believe that

shooting Rogers was immediately necessary.
                                               –11–
       As in Rodriguez, we cannot find any evidence in the record specific to appellant’s necessity

defense such that the jury might have rejected appellant’s defense of third person theory while

accepting his necessity theory. Appellant’s conduct was the same: shooting Rogers. The harm

sought to be avoided was the same: protecting others from being seriously injured by Rogers

conduct in driving his vehicle in the parking lot. None of the evidence and instructions concerning

defense of third person set up any barriers that could have led to a finding of necessity without a

finding of defense of third person. The instructions and evidence overlapped to such a degree that

we are assured appellant suffered no harm and the result of the proceeding would not be different.

Id.; see also Barrios, 389 S.W.3d at 398.

       B.      Presumption of Reasonableness Instruction

       Appellant also contends that he received ineffective assistance of counsel because counsel

should have requested that the presumption of reasonableness instruction be included in the charge.

Appellant claims that he was entitled to the presumption because the jury could have found

appellant reasonably believed Rogers was attempting to commit murder. We conclude that

appellant can show neither deficient performance by counsel in failing to request the instruction,

nor a likelihood that the result of the proceeding would have been different had the jury charge

included a presumption of reasonableness instruction.

       The presumption of reasonableness under Penal Code § 9.32 provides that the actor’s belief

that deadly force was immediately necessary was reasonable if the actor knew or had reason to

believe that the person against whom the deadly force was used was committing or attempting to

commit the offense of murder. TEX. PENAL CODE ANN. § 9.32(a)(2)(B), (b)(1)(C) (West 2011).

The Penal Code “requires that a presumption that favors the defendant be submitted to the jury if

there is sufficient evidence of the facts that give rise to the presumption . . . unless the court is

satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the

                                               –12–
presumed fact. TEX. PENAL CODE ANN. § 2.05(b)(1) (West 2011); Morales v. State, 357 S.W.3d

1, 7 (Tex. Crim. App. 2011). As pointed out by the State in its brief, the record in this case is

devoid of any facts that support the elements of murder or attempted murder. Thus, appellant was

not entitled to the instruction.

        Further, under the evidence in this case, a complete instruction would have permitted the

jury to disregard the presumption of reasonableness based on its determination that appellant had

no reason to believe that Rogers was attempting to commit murder. See Villarreal v. State, 453

S.W.3d 429, 435 (Tex. Crim. App. 2015). In addition, a presumption of reasonableness instruction

would not likely have resulted in a different verdict because of the weakness of appellant’s

defensive evidence in comparison to the evidence in the record refuting that evidence. Id. at 439.

        We overrule appellant’s third and fourth issues.

                                         CONCLUSION

        We affirm the trial court’s judgment.



                                                       /David Evans/
                                                       DAVID EVANS
                                                       JUSTICE


Do Not Publish
TEX. R. APP. P. 47
170066F.U05




                                                –13–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 ZAFAR ALI RAZA, Appellant                          On Appeal from the 265th Judicial District
                                                    Court, Dallas County, Texas
 No. 05-17-00066-CR        V.                       Trial Court Cause No. F15-58310-R.
                                                    Opinion delivered by Justice Evans,
 THE STATE OF TEXAS, Appellee                       Justices Lang and Schenck participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 27th day of February, 2018.




                                            –14–
