      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-14-00290-CR



                               Michael Shawn Alexander, Appellant

                                                    v.

                                     The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
      NO. D-1-DC-13-201709, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING



                              MEMORANDUM OPINION


                 A jury convicted appellant Michael Shawn Alexander of the offense of assault

family violence.1 After Alexander pleaded true to three enhancement paragraphs alleging a total of

eight prior convictions, including a prior conviction for the offense of assault family violence, the

district court rendered judgment on the verdict and sentenced Alexander to 25 years’ imprisonment.

In a single issue on appeal, Alexander asserts that the district court erred in failing to instruct the jury

on the law of self-defense. We will affirm the judgment of conviction.


                                           BACKGROUND

                 The jury heard evidence that on the night of March 25, 2013, Officers

Michael Cornett and Jared Carruth of the Austin Police Department were standing outside a

residence in East Austin, investigating a report of a possible suicide attempt, when they heard

what Cornett characterized as a “high-pitched kind of shrill scream” coming from “somewhere


        1
            See Tex. Penal Code § 22.01(b)(2).
in the immediate area.” The officers headed in the direction where they had heard the scream and

encountered two individuals on a driveway who told the officers that they had “heard a commotion

and saw a male running from the general area” and pointed the officers east. Shortly thereafter,

Cornett testified, the two officers observed a man, later identified as Alexander, standing outside a

residence, “kind of banging on the door and yelling.” The officers detained Alexander until other

officers arrived. Cornett also entered the residence, where he encountered a female resident, later

identified as Darnise Bowens, who informed him “that there had been an altercation” and that she

had been assaulted.

               Officer Troy Wiser of the Austin Police Department investigated the incident. Wiser

testified that, upon arriving at the residence, he proceeded to interview Bowens. According to Wiser,

during the interview, Bowens was “seated on a couch or chair in her living room and she was crying.

She was real red faced. Her hair looked like it had been pulled and messed up in the back. She

was—she was generally just real upset and seemed afraid.” He added, “She was having difficulty

speaking through her crying. She seemed just very nervous, afraid for her safety.” Wiser testified

that Bowens told him that she and Alexander had been married but were now divorced and

that, during the course of an argument between them that night, Alexander had strangled her. Wiser

observed “a bloodstain on her shirt toward the collar” but otherwise did not observe any blood on

Bowens or any visible injuries to her neck. Following his interview with Bowens, Wiser proceeded

to interview Alexander and, after concluding that Alexander was not being forthcoming regarding

the night’s events, subsequently arrested him for assault.

               When Wiser arrived at the police station and began the booking process with

Alexander, Wiser observed what appeared to be a “bite mark” on Alexander’s upper right arm

below his shoulder and what Wiser characterized as “a very small cut” on Alexander’s upper lip.

                                                 2
Wiser testified that the bite mark was consistent with Bowens’s description of the manner in which

the assault had occurred. Wiser explained,


        [T]he way she had described that he had his arm around the front of her neck,
        that would have placed her face right about here (indicating) and during a struggle
        that would have been a defensive wound for her to try and get his arm away from
        her face. And so at that point I recognized that as being exactly where her face could
        have been during that point. And that’s a common defense to try and get out of a
        choke hold or a strangulation.


Wiser added that it was “very unlikely” that the bite mark was the result of Bowens attacking

Alexander. He testified, “If she was attacking him . . . it would be very unlikely . . . that she would

be able to get in that position without having any interference from his arms pushing her away,

holding her. It’s just a very unlikely spot for an offensive wound.” Wiser also explained that the

cut on Alexander’s lip could have been caused by Bowens’s fingernails scratching his face as she

was attempting to break free from Alexander choking her. On cross-examination, when asked if

Alexander’s injuries could have been consistent “with him being attacked” by Bowens, Wiser

testified that “[a]nything is possible.”

                Bowens also testified and provided her account of the incident. According to

Bowens, although she and Alexander were divorced, she had, prior to the incident, allowed him to

resume living with her. On the night in question, she “wanted to take a bath and go to sleep” but

Alexander was “insisting” that she spend time with him. Bowens testified that Alexander followed

her into the bathroom and “put his arm around [her] neck and began to choke [her].” Bowens

described the choking as Alexander “pulling” and “locking” his arm “tight” around her throat to the

extent that Bowens feared he might break her neck. Bowens recounted that as she attempted to break

free of Alexander—biting his arm in the process—she eventually screamed out and Alexander


                                                  3
released her, throwing her toward the bathtub. According to Bowens, she then ran out of the

bathroom and into her bedroom, where Alexander “grabbed [her] again” and pushed her onto the

bed, holding her down. Bowens testified that she again broke free from Alexander and ran into the

living room, where she was “stopped by him again and pushed in the chair.” At that point, Bowens

explained, Alexander “got on top of [her] and began to put his hands around [her] neck. And his

words were, ‘I’m going to go to jail for something.’” Bowens added, “I was fighting him off, trying

to keep him [away], but he overpowered me. And all I could say, you know, why are you doing this?

And I saw, you know, the rage in his eyes.” In an effort to get Alexander off of her, Bowens “began

to punch” Alexander and “eventually he let [her] go.” Bowens then “ran clean out of the house,”

and Alexander “ran after [her].” Bowens further testified that as Alexander chased her around the

yard and repeatedly “grabbed” at her, she proceeded to scream in an attempt “to get help,”

which prompted Alexander to move away from her. Bowens then ran back inside the house, pushed

furniture against the front door to prevent Alexander from entering, and hid in the bedroom until the

police arrived.

                  One of the defense witnesses, Bobby Epstein, had spoken with Alexander following

his arrest. According to Epstein, Alexander had told him that he was “in a fight with Darnise and

that “she was upset about something.” Epstein added, “He told me, ‘I have blood on my shirt that

was mine, I didn’t hurt her, [] she was very angry.”

                  During the charge conference, Alexander requested an instruction on the law of self-

defense. The district court denied the request. The jury found Alexander guilty as charged, and

the district court rendered judgment on the verdict, sentencing him to 25 years’ imprisonment

after Alexander pleaded true to the State’s enhancement paragraphs as indicated above. This appeal

followed.

                                                   4
                                              ANALYSIS

                  In his sole issue on appeal, Alexander asserts that the district court erred in denying

his request for an instruction in the jury charge on the law of self-defense. According to Alexander,

the evidence tending to show that he was injured by Bowens during the incident, including the bite

mark on his arm, the cut to his lip, and the blood on his and Bowens’s shirts following the incident,

sufficiently raised the issue of self-defense so as to require an instruction to the jury on the issue.

                  The district court shall provide the jury with “a written charge distinctly setting

forth the law applicable to the case.”2 The law applicable to the case includes “statutory defenses,

affirmative defenses, and justifications whenever they are raised by the evidence.”3 “[A] defense

is supported (or raised) by the evidence if there is some evidence, from any source, on each

element of the defense that, if believed by the jury, would support a rational inference that that

element is true.”4

                  “[W]e do not apply the usual rule of appellate deference to trial court rulings when

reviewing a trial court’s decision to deny a requested defensive instruction.”5 Instead, “we view

the evidence in the light most favorable to the defendant’s requested submission.”6 “A defendant

is entitled to an instruction on self-defense if the issue is raised by the evidence, whether that

evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may

        2
            Tex. Code Crim. Proc. art. 36.14.
       3
            Walters v. State, 247 S.W.3d 204, 208-09 (Tex. Crim. App. 2007).
       4
          Shaw v. State, 243 S.W.3d 647, 658-59 (Tex. Crim. App. 2007); see Tex. Penal Code
§ 2.03(c) (“The issue of the existence of a defense is not submitted to the jury unless evidence is
admitted supporting the defense.”).
        5
            Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006).
        6
            Id.

                                                    5
think about the credibility of the defense.”7 “On the other hand, if the evidence, viewed in the light

most favorable to the defendant, does not establish self-defense, the defendant is not entitled to an

instruction on the issue.”8

                  The elements of a self-defense claim are set forth in section 9.31 of the Penal Code,

which provides that “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.”9 “Thus, in order to justify the submission of a charge to

the jury on the issue of self-defense, there must be some evidence in the record to show that the

defendant was in some apprehension or fear of being the recipient of the unlawful use of force from

the complainant.”10 Additionally, by its express terms, the statute requires some evidence that the

defendant had a “reasonable belief” that his use of force was immediately necessary to protect

himself from the other’s use or attempted use of unlawful force.11 Accordingly, to be entitled to a

jury instruction on the issue of self-defense, there must be some evidence in the record of the




       7
            Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001).
       8
            Id.
       9
            Tex. Penal Code § 9.31(a).
       10
           Smith v. State, 676 S.W.2d 584, 585 (Tex. Crim. App. 1984); see Jones v. State,
859 S.W.2d 537, 539-40 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d); see also Vaughn v. State,
No. 03-10-00510-CR, 2011 Tex. App. LEXIS 5037, at *17 (Tex. App.—Austin July 1, 2011,
no pet.) (mem. op., not designated for publication).
       11
          See Tex. Penal Code § 9.31(a). A “reasonable belief” means a belief that would be held
by an ordinary and prudent man in the same circumstances as the actor. Id. § 1.07(a)(42).

                                                    6
defendant’s state of mind or “observable manifestations” of the defendant’s state of mind at the time

he used force against the complainant.12

               Viewed in the light most favorable to Alexander, the evidence summarized above

tends to show that Bowens was “very angry” and “upset” during the altercation and that she injured

Alexander as they fought—she bit his arm, cut his lip, punched him, and even caused him to bleed.

But this evidence, without more, does not establish anything regarding Alexander’s state of mind

during the altercation. There is no evidence in the record from which a reasonable fact-finder could

infer that Alexander was in “apprehension or fear” of Bowens at any point during the altercation

or that Alexander had a reasonable belief that his use of force against Bowens was immediately

necessary to protect himself from any unlawful force that might have been used by her. Accordingly,

on this record, we cannot conclude that the district court erred in denying Alexander an instruction

on the law of self-defense.13


       12
           See VanBrackle v. State, 179 S.W.3d 708, 713 (Tex. App.—Austin 2005, no pet.); Reed
v. State, 703 S.W.2d 380, 385 (Tex. App.—Dallas 1986, pet. ref’d). Examples of “observable
manifestations” of a defendant’s state of mind would include evidence tending to show that
the defendant “called for help” during an altercation or that the defendant told the complainant
to “leave [him] alone” as they struggled. See Smith, 676 S.W.2d at 586; VanBrackle, 179 S.W.3d
at 714.
       13
           See Dyson v. State, 672 S.W.2d 460, 463-64 (Tex. Crim. App. 1984); Dominguez v. State,
506 S.W.2d 880, 882 (Tex. Crim. App. 1974); Lee v. State, 442 S.W.3d 569, 578 (Tex. App.—San
Antonio 2014, no pet.); Davis v. State, 268 S.W.3d 683, 697-98 (Tex. App.—Fort Worth 2008,
pet. ref’d); Broussard v. State, 809 S.W.2d 556, 559-60 (Tex. App.—Dallas 1991, pet. ref’d);
Reed, 703 S.W.2d at 384-85; see also Gonzales v. State, No. 03-12-00620-CR, 2014 Tex. App.
LEXIS 12944, at *8-9 (Tex. App.—Austin Dec. 4, 2014, pet. ref’d) (mem. op., not designated for
publication) (concluding that evidence tending to show that complainant injured defendant during
altercation, without more, was insufficient to raise issue of self-defense); Reynolds v. State,
No. 07-11-00500-CR, 2012 Tex. App. LEXIS 10501, at *8-11 (Tex. App.—Amarillo Dec. 19, 2012,
no pet.) (mem. op., not designated for publication) (concluding that evidence tending to show that
complainant kicked defendant prior to defendant striking complainant was insufficient to raise issue
of self-defense because it did not establish that defendant had reasonable belief that his force was
immediately necessary to protect himself from complainant’s use of force against him; observing

                                                 7
               We overrule Alexander’s sole issue on appeal.


                                         CONCLUSION

               We affirm the judgment of conviction.



                                              __________________________________________

                                              Bob Pemberton, Justice

Before Justices Puryear, Pemberton, and Bourland

Affirmed

Filed: January 21, 2016

Do Not Publish




that “[s]elf-defense is not to be confused with retaliation”); Heath v. State, No. 05-10-01084-CR,
2012 Tex. App. LEXIS 4471, at *15-17 (Tex. App.—Dallas June 6, 2012, pet. ref’d) (op.,
not designated for publication) (concluding that evidence tending to show that knife used in
altercation had defendant’s blood on it and that defendant suffered minor injuries during altercation
with complainant was insufficient to prove that appellant had reasonable belief that force was
immediately necessary to protect himself from complainant); Vaughn, 2011 Tex. App. LEXIS 5037,
at *19 (“In addition to the evidence that Vaughn initiated the altercation, there is also no evidence
showing that Vaughn was in apprehension or fear of being the recipient of unlawful use of force
from [the complainant] when he began hitting [her] and no evidence showing any observable
manifestations of Vaughn’s alleged belief that he needed to hit [the complainant] in order to prevent
her from using unlawful force against him.”); Shepherd v. State, No. 14-08-00970-CR, 2011 Tex.
App. LEXIS 133, at *19-21 (Tex. App.—Houston [14th Dist.] Jan. 11, 2011, pet. ref’d) (mem. op.,
not designated for publication) (concluding that “the mere existence of” injury to defendant caused
by victim does not establish that defendant had reasonable belief that use of force was immediately
necessary to protect himself from victim).

                                                 8
