                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-09-232-CR


JAMES PROX                                                          APPELLANT

                                            V.

THE STATE OF TEXAS                                                       STATE

                                        ------------

            FROM THE 78TH DISTRICT COURT OF W ICHITA COUNTY

                                        ------------

                          MEMORANDUM OPINION 1

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                                  I. Introduction

      The State charged Appellant James Prox, a Texas Department of Criminal

Justice (TDCJ) inmate, with committing an aggravated assault with a deadly weapon

against Rodney Howard, another TDCJ inmate. 2 The jury found Prox guilty and




      1
           See Tex. R. App. P. 47.4.
      2
        Because Prox challenges the factual sufficiency of the evidence, we will
discuss the facts in detail below.
assessed his punishment at life imprisonment. The trial court entered judgment

accordingly, and Prox brings three issues on appeal.

                               II. Evidentiary Issues

      In his third issue, Prox challenges the factual sufficiency of the evidence to

support his conviction and contends that “[t]he great weight and preponderance of

the evidence establishes that the jury wrongfully rejected [his] claim of self-defense.”

In his first issue, he argues that the trial court abused its discretion by excluding

evidence relevant to his self-defense claim.

A. Factual Sufficiency

      1. Standard of Review

      W hen reviewing the factual sufficiency of the evidence to support a conviction,

we view all the evidence in a neutral light, favoring neither party. Steadman v. State,

280 S.W .3d 242, 246 (Tex. Crim. App. 2009); Watson v. State, 204 S.W .3d 404, 414

(Tex. Crim. App. 2006).       W e then ask whether the evidence supporting the

conviction, although legally sufficient, is nevertheless so weak that the factfinder’s

determination is clearly wrong and manifestly unjust or whether conflicting evidence

so greatly outweighs the evidence supporting the conviction that the factfinder’s

determination is manifestly unjust. Steadman, 280 S.W .3d at 246; Watson, 204

S.W .3d at 414–15, 417. To reverse under the second ground, we must determine,

with some objective basis in the record, that the great weight and preponderance of




                                           2
all the evidence, although legally sufficient, contradicts the verdict. Watson, 204

S.W .3d at 417.

      Unless we conclude that it is necessary to correct manifest injustice, we must

give due deference to the factfinder’s determinations, “particularly those

determinations concerning the weight and credibility of the evidence.” Johnson v.

State, 23 S.W .3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W .3d at 246.

Evidence is always factually sufficient when it preponderates in favor of the

conviction. Steadman, 280 S.W .3d at 247; see Watson, 204 S.W .3d at 417.

      Because self-defense is classified as a defense rather than an affirmative

defense, we apply the factual sufficiency review generally applied to convictions to

an appellant’s challenge to the jury’s implicit finding beyond a reasonable doubt

against his self-defense claim.     Bundy v. State, 280 S.W .3d 425, 433 (Tex.

App.—Fort W orth 2009, pet. ref’d).

      2. Evidence

             a. Howard’s Testimony

      Howard testified that on December 10, 2004, Prox, his cell mate of two to

three weeks, attacked him with a razor that was tied to his hand. Howard testified

that Prox wanted to be in the cell by himself, so “right off” they had problems. On the

day of the incident, Prox left the cell for recreation. W hen he returned, he made a

comment to Howard about wanting a cell by himself, to which Howard retorted that




                                          3
he thought “all diabetic inmates should be in the cell with one another anyway.” Prox

is diabetic.

       Howard testified that Prox started the altercation—he saw Prox approach him

from behind in the reflection from the plexiglass pane in the cell door and then Prox

attacked him:

               I saw him when he got up, and I saw him move behind me. And
       when I turned around, he had—he was raised up just like he was going
       to strike me. But when he struck me, it was—he cut me. Cut me on my
       biceps. . . .

               I tried to grab his hand, and then he cut me on my right wrist. By
       this time, I did—I was able to get hold of his hand. And I kneed him in
       his groin. And I pushed him up against the wall trying to get leverage
       on his arm.

              He cut me in the face a couple of times, and cut me in my chest,
       also. So I grabbed him and rushed him across the cell. And got on to
       the bottom bunk and got on top of him and started punching him in his
       face. . . .

             I was punching him, trying to knock him out so I could take
       whatever weapon he had from him. Because I realized he had it tied
       onto his hand. And the only way I was going to be able to get it away
       from him was to knock him out.

       Howard testified that officers arrived while he was punching Prox and that the

officers told them to break it up. He punched Prox a few more times, knocking Prox

out to the extent that he could unwrap the string from Prox’s hand, remove the

weapon, and throw it to the officers through the “bean slot” 3 in the cell door.



       3
        A “bean slot” is the section of the door used to put food into a cell to feed
the inmates.

                                           4
               b. Prox’s Testimony

      Prox testified that on December 10, 2004, he left the cell for recreation to “get

away from [Howard].” He stated, “That dude [Howard] had been trouble ever since

he moved in there,” and testified that he had filed administrative forms trying to move

away from him. W hen Prox returned from recreation,

      [Howard] was sitting there waiting. He jumped down. Told me—said
      you trying to go out there to pay somebody to jump on me. I said, man,
      I don’t know anything about you. So when I sit on the bed, he—I
      thought he hit me. But he cut me. W hen he cut me, I throwed [sic] my
      hands up.

He testified that the cut he referred to was depicted on State’s Exhibit 36, and he

tried to take off his shirt to show the jury the scars from the cuts on his chest. Prox

also testified that he did not have a knife, that he hit Howard with a coffee cup in self-

defense, and that Howard was a known psychopath who had choked him two or

three times before the incident. 4



      4
           On cross-examination, Prox testified,

      Q. So it’s your story that Mr. Howard was just picking on you for no
      reason; is that correct?

      A. Yes, sir.

      Q. That he picks on everybody?

      A. He picks on—that’s why he got moved.

      Q. And everybody knows he’s crazy and he’s trouble?

      A. Everybody know[s] it.

                                            5
      Prox stated, “I don’t do nothing. I don’t bother nobody. Only thing I do is try

to do my time.” However, on cross-examination, he admitted that he had had

problems while incarcerated, including disciplinary cases charging him with fighting

with a weapon, fighting without a weapon, threatening an officer, and threatening an

inmate.   He claimed that he had been set up. The trial court gave a limiting

instruction on credibility with regard to this testimony.

      Prox testified that his physical condition at the time was too poor for him to

attack anyone because he had been waiting on bypass surgery and hernia surgery

and that his “stomach was so big and so swole [sic] that [he] couldn’t even get up in

the bed.”5 He testified that he had bad arteries, that he had 180 pounds of pressure

in his right leg and eighty pounds of pressure in his left leg, that he had high blood

pressure, and that he was diabetic. Prox claimed that because he had no circulation

in his legs, he was assigned the bottom bunk and this made Howard angry.

      Prox attempted to unbutton his shirt to show the jury his surgical scars. The

trial court sustained the State’s objection to the relevance of Prox’s post-incident

surgical scars and “based upon not having the medical testimony that would

establish that [the medical condition] was affecting him on the date of th[e]

occurrence,” but it allowed Prox to make a bill of exception.        In Prox’s bill of

exception, he testified that the first surgery was performed about a month after the



      5
        He testified, “I’m taking so much medication that I couldn’t—I couldn’t do
nothing,” and “I’m not healthy and strong no more.”

                                           6
incident and the second surgery occurred six months later. He testified that he had

a herniated small intestine, that he had a scar ten inches long and one inch wide

from the first procedure, and that the doctors “had to go all the way down and inside

the stomach and on both sides of the legs to make enough to get circulation in the

legs.” He testified that the doctors discovered that he had artery blockage during his

second surgery and that his second surgery resulted in a scar six inches long. Prox

stated that his circulatory problems existed at the time of the incident with Howard.

             c. Other Evidence

      At the time of the incident Howard was thirty-nine-years old, six feet tall, and

weighed around 150 pounds. He had been convicted of kidnapping, robbery, and

aggravated sexual assault, and he had two prior burglary-of-a-habitation convictions.

Prox was a forty-eight-year-old insulin-dependent diabetic receiving injections twice

a day, with additional health problems listed above. He was five feet, five inches tall,

weighed around 158 pounds, and had been convicted of attempted murder and

murder with a deadly weapon.

      Photographs of Howard’s injuries to his face, neck, shoulder, chest, wrist, and

hand were admitted in evidence.         The trial court also admitted in evidence

photographs of Prox’s injuries—Howard admitted that he “swole [sic] up one of

[Prox’s] eyes” and might have busted his lip and that Prox might have been cut when

they were wrestling and when he tried to take the razor from Prox. The weapon,




                                           7
composed of one or more razor blades attached to a plastic razor handle, 6 was also

admitted in evidence.

      Officer Marion Johnston, who had been working in Prox and Howard’s cell

block that day, corroborated Howard’s description of the fight, although he admitted

that he did not know who instigated it. He testified that other inmates alerted him to

the cell fight and that when he arrived, he saw Howard on top of Prox on the bottom

bunk, trying to remove a weapon from Prox’s hand. Prox had the weapon tied with

a string to his wrist, and Officer Johnston saw Prox slash out at Howard with the

weapon at least three times. He and the other officers ordered the inmates to stop

fighting, which the inmates did after a few more blows; the weapon dropped from

Prox’s hand, still attached to his wrist, and Howard complied with one of the other

officer’s orders to grab the weapon and toss it out of the cell. The officers secured

the inmates with hand restraints and took them for medical treatment because both

had injuries.

      Officer William Moss testified that he responded with Officer Johnston to the

fight between Prox and Howard. He testified that Prox had a weapon wrapped in his

right hand and that Prox and Howard were wrestling, with Howard trying to get the

weapon from Prox and yelling, “[H]e’s stabbing me. He’s stabbing me.” He testified

that the fighting stopped when the officers threatened to gas them, Prox unwrapped

      6
         More than one witness testified that this type of weapon is common in
prison. Officer Johnston testified that such weapons are capable of causing serious
bodily injury and possibly death if they strike a jugular vein.

                                          8
the weapon from his hand, and Howard picked up the weapon and threw it out of the

bean slot. Officer Moss also testified that the usual protocol for an inmate going to

recreation is to search the inmate before he is escorted to recreation and to search

him upon his return from recreation. 7 He stated that he had no personal knowledge

as to where the weapon was kept, other than in some crevice that had evaded

detection in prior cell searches.

      Julie Diamond, a criminal investigator for the Office of the Inspector General,

testified that she investigated the incident. She took photographs of the inmates’ cell

immediately after the incident—including photographs of a towel on the sink area

with blood on it and blood droplets and smears on the floor, walls, and bottom

bunk—and of the inmates’ injuries. She also collected the bloodstained sheet that

was on top of the bottom bunk.

      3. Analysis

      To convict Prox of aggravated assault with a deadly weapon, the jury had to

find that Prox intentionally, knowingly, or recklessly caused bodily injury to Howard

by cutting him with a razor blade and that a razor blade was a deadly weapon. See

Tex. Penal Code Ann. § 1.07(a)(17) (Vernon Supp. 2009) (defining deadly weapon

as anything manifestly designed, made, or adapted for the purpose of inflicting death



      7
          The weapon’s maker was unknown. In response to Prox’s counsel’s
question, “For all you know, Rodney Howard has a certificate of title to that weapon;
is that right?” Officer Moss replied, “He could.” However, he also testified that based
on what he observed, his impression was that Prox was the weapon’s owner.

                                          9
or serious bodily injury or anything that, in the manner of its use or intended use, is

capable of causing death or serious bodily injury), § 22.02 (Vernon Supp. 2009)

(defining elements of aggravated assault with a deadly weapon). To acquit Prox of

committing aggravated assault with a deadly weapon, the jury would have had to find

that Prox was justified in using force to defend himself. See id. § 9.31 (Vernon

Supp. 2009) (defining justification of self-defense). A defensive instruction such as

self-defense is only appropriate when the defendant’s evidence essentially admits

to every element of the offense including the culpable mental state but interposes

the justification to excuse the otherwise criminal conduct. Shaw v. State, 243

S.W .3d 647, 659 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 2486 (2008).

      According to Prox, the evidence showed that:

      (1) [Prox] had diabetes, a chronic medical condition that seriously
      limited his mobility and reduced his strength while Mr. Howard was
      younger, stronger, and physically fit;

      (2) [Prox] and Mr. Howard are both convicted felons and both denied
      instigating the assault;

      (3) [Prox] and Mr. Howard disliked each other;

      (4) [J]ust before the fight, Mr. Howard accused [Prox] of setting up a
      “hit” on Mr. Howard;

      (5) [Prox] had just returned from the recreation yard when the assault
      occurred;

      (6) [P]olicy required [Prox] to be searched for contraband when he
      returned from the yard;

      (7) Mr. Howard had not left the cell on the day of the fight;


                                          10
        (8) [O]nly [Prox] and Mr. Howard have personal knowledge of who
        started the fight or who had the weapon when the fight started;

        (9) [T]he assault occurred on the bed at the far wall of a dimly-lit cell;

        (10) [T]he officers did not see the fight start;

        (11) [T]he officers viewed the fight from outside the cell and about
        [twelve] feet away from the bed, which was partially obscured by a
        hanging sheet;

        (12) [T]he officers saw Mr. Howard on top of and struggling with a
        prone [Prox];

        (13) [T]he officers saw a weapon fall to the floor during the fight;

        (14) [T]he weapon was a shank made from a razor; and

        (15) [B]oth [Prox] and Mr. Howard sustained cuts during the fight.

Prox complains that the only evidence supporting the verdict was Howard’s

testimony and the officers’ testimony that they saw the weapon fall out of Prox’s

hand.

        According to Prox’s recital above and the necessary inferences therefrom,

Prox was weak and Howard was strong, one was lying about who started the fight

(in his view, Howard), both were cut, the officers saw Howard on Prox and saw a

weapon fall, and Prox had been at recreation before the fight (and must therefore

have been searched before re-entering the cell) so the weapon could not have been

his. Prox also claims that Howard’s testimony was not more credible than his own.

        The jury had the responsibility to determine the weight and credibility of the

evidence—essentially, whether to believe Howard or Prox—and we must give due


                                            11
deference to that determination. See Steadman, 280 S.W .3d at 246; Johnson, 23

S.W .3d at 9. Viewing all of the evidence in a neutral light, the jury could have

chosen to believe Howard’s testimony that Prox instigated the altercation by

attacking and cutting him, particularly in light of the photographs of Howard’s injuries

to his face, neck, shoulder, chest, wrist, and hand and Officer Johnston’s testimony

that he saw Prox slash out at Howard with a weapon at least three times during the

incident. See Steadman, 280 S.W .3d at 246. Furthermore, although Prox claimed

he was physically incapable of attacking Howard, the record reflects, based on his

own testimony, that he was physically able to go to recreation and to defend himself

with a coffee mug. Therefore, the jury could have reasonably concluded that Prox

was also physically able to perpetrate an attack on his cell mate. And Officer Moss

testified that the weapon could have been hidden in the cell and could have

belonged to either inmate. From this, and from Officers Johnston and Moss’s

testimonies about seeing Prox use the weapon, the jury could have reasonably

concluded that Prox hid the weapon in the cell before going to recreation and then

used it upon his return to attack Howard.

      Additionally, based on our review of the record, we cannot agree with Prox

that the evidence was factually insufficient to justify the jury’s rejection of his self-

defense claim. W e cannot say that the evidence supporting the conviction is so

weak that the jury’s determination is clearly wrong and manifestly unjust or that the

conflicting evidence—Prox’s testimony containing his version of events—so greatly


                                           12
outweighs the evidence supporting the conviction that the jury’s determination is

manifestly unjust. See Steadman, 280 S.W .3d at 246; Watson, 204 S.W .3d at

414–15, 417. Therefore, we overrule Prox’s third issue.

B. Self-Defense

      In his first issue, Prox complains that the trial court erred by excluding

“evidence about his incapacitating medical conditions,” which he contends was

relevant to his claim of self-defense because “it tended to prove he lacked the

physical strength to initiate an assault.” Specifically, he argues that the trial court

prevented him from presenting an effective defense by refusing to let the jury hear

about the debilitating nature of his medical conditions and to see the severe scarring

on his body left by the surgeries for his circulatory problems and hernia.          He

contends that admission of this evidence “would have increased the jury’s

knowledge about the improbability of [Prox] instigating a physical attack” on Howard.

      1. Standard of Review

      W e review a trial court’s decision to exclude evidence for an abuse of

discretion. See Green v. State, 934 S.W .2d 92, 101–02 (Tex. Crim. App. 1996),

cert. denied, 520 U.S. 1200 (1997); Montgomery v. State, 810 S.W .2d 372, 391

(Tex. Crim. App. 1991) (op. on reh’g). As long as the trial court’s ruling falls within

the zone of reasonable disagreement and was correct under any theory of law

applicable to the case, we will affirm its decision. Winegarner v. State, 235 S.W .3d

787, 790 (Tex. Crim. App. 2007). The trial court’s decision must be reasonable in


                                          13
view of all the relevant facts. Santellan v. State, 939 S.W .2d 155, 169 (Tex. Crim.

App. 1997).    The mere fact that a trial court may decide a matter within its

discretionary authority in a different manner than an appellate court would in a

similar circumstance does not demonstrate that an abuse of discretion has occurred.

Manning v. State, 114 S.W .3d 922, 926 (Tex. Crim. App. 2003).

      2. Analysis

      “Relevant evidence” means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence. Tex. R. Evid. 401.

Evidence is relevant to self-defense when it shows that a defendant reasonably

believed that “force [was] immediately necessary to protect [himself] against the

other’s use or attempted use of unlawful force.”       See Tex. Penal Code Ann.

§ 9.31(a); Teakell v. State, 143 Tex. Crim. 471, 473, 159 S.W .2d 504, 504–05

(1942). Furthermore, on the issue of self-defense, testimony as to the relative size,

strength, and other physical characteristics showing the disparity between the

accused and the complainant, as a ground for apprehension, and also upon the

question as to which party was the aggressor, is relevant. Mosby v. State, 482

S.W .2d 256, 258 (Tex. Crim. App. 1972) (addressing relevance of the condition of

a deceased complainant).

      As set out above, some of Prox’s testimony about his post-incident surgery

and medical condition was excluded by the judge “based upon the relevance, and


                                         14
also based upon not having the medical testimony that would establish that it was

affecting him on the date of this occurrence.” A review of Prox’s bill of exception

reveals that Prox would have testified that he had two surgeries after the incident,

one to repair his herniated small intestine and another to correct circulation problems

in his legs, and that prior to surgery, his stomach was distended and he could put no

pressure on his legs.

      W e initially note that the trial court allowed Prox to present testimony to the

jury that his physical condition at the time of the incident—his diabetes, his swollen

stomach, his then-upcoming bypass and hernia surgeries, his high blood pressure,

and the lack of circulation in his legs—was too poor to allow him to attack anyone.

And photographs taken immediately after the incident, showing his physical

appearance at the time, were presented to the jury.

      Although Prox argues that the jury needed to see his post-incident surgical

scars to show that his subsequent surgery “was seriously invasive and indicative of

his debilitated medical condition,” we have found no cases holding that such after-

the-fact evidence is relevant. Cf. Teakell, 143 Tex. Crim. at 473, 159 S.W .2d at

504–05 (holding that it was error to exclude appellant’s requested exhibition on the

witness stand of the scars from the wounds that were inflicted on him during his

altercation with the complainant); Boyd v. State, No. 01-98-00167-CR, 1999 W L

442156, at *1–3 (Tex. App.—Houston [1st Dist.] July 1, 1999, no pet.) (not

designated for publication) (holding it was error to exclude exhibition of Boyd’s knee-


                                          15
surgery scars when his loss of normal use of physical faculties was at issue in DW I

case, but the error was harmless when Boyd’s witness testified that Boyd had

undergone knee surgery, to explain his failure to successfully complete the one-

legged-stand field sobriety test); Sorenson v. State, 856 S.W .2d 792, 793–95 (Tex.

App.—Beaumont 1993, no pet.) (holding that trial court committed harmless error in

felony DW I case when it excluded evidence pertaining to the condition of appellant’s

legs and feet at the time he performed field sobriety tests involving leg movement);

Wolford v. State, 675 S.W .2d 530, 533 (Tex. App.—Houston [14th Dist.] 1983, pet.

ref’d) (holding that showing complainant’s wounds and surgical scars was relevant

to appellant’s claim of self-defense when there was disputed testimony about

whether appellant shot him in the abdomen or in the back).

      To the contrary, one of our sister courts has upheld the exclusion of similar

evidence when, as here, it failed to show the appellant’s condition at the time of the

incident. See Sneed v. State, 955 S.W .2d 451, 455–56 (Tex. App.—Houston [14th

Dist.] 1997, pet. ref’d) (upholding exclusion in DW I case when appellant’s medical

records were created approximately a week after his arrest and so were not relevant

to prove that appellant had actually sustained a head injury or had taken medication

at the time he was arrested). W e hold that the trial court did not abuse its discretion

by excluding evidence of surgical scarring that occurred after the incident in

question, and we overrule this portion of Prox’s first issue.




                                          16
      According to his bill of exception, Prox would also have testified that he could

not push down on his legs or put pressure on his legs. W hile this is somewhat

redundant of his testimony that the trial court admitted, we will assume, without

deciding, that it was error to exclude the testimony about his legs’ condition.

      W e must conduct a harm analysis to determine whether the assumed error

calls for reversal of the judgment. Tex. R. App. P. 44.2. The admission or exclusion

of evidence is generally not of constitutional dimension. See Solomon v. State, 49

S.W .3d 356, 365 (Tex. Crim. App. 2001); see also Walters v. State, 247 S.W .3d 204,

222 (Tex. Crim. App. 2007). Hence, we apply rule 44.2(b)—the exclusion must have

affected a substantial right. Tex. R. App. P. 44.2(b); see Mosley v. State, 983

S.W .2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070

(1999); Coggeshall v. State, 961 S.W .2d 639, 642–43 (Tex. App.—Fort W orth 1998,

pet. ref’d). A substantial right is affected when the error had a substantial and

injurious effect or influence in determining the jury’s verdict. King v. State, 953

S.W .2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S.

750, 776, 66 S. Ct. 1239, 1253 (1946)); Coggeshall, 961 S.W .2d at 643. Conversely,

an error does not affect a substantial right if we have “fair assurance that the error

did not influence the jury, or had but a slight effect.” Solomon, 49 S.W .3d at 365;

Johnson v. State, 967 S.W .2d 410, 417 (Tex. Crim. App. 1998).

      In making this determination, we review the record as a whole, including any

testimony or physical evidence admitted for the jury’s consideration, the nature of the


                                          17
evidence supporting the verdict, and the character of the alleged error and how it

might be considered in connection with other evidence in the case. Motilla v. State,

78 S.W .3d 352, 355 (Tex. Crim. App. 2002). Based on our review of the record, we

conclude that, in the context of the entire case against Prox, any error by the trial

court in excluding the testimony in question did not have a substantial or injurious

effect on the jury’s verdict and did not affect his substantial rights in that the

evidence of his medical condition and claim of physical inability to attack Howard

was already squarely before the jury. See King, 953 S.W .2d at 271. Thus, we

disregard the error, if any, and we overrule the remainder of Prox’s first issue. See

Tex. R. App. P. 44.2(b).

                                 III. Jury Charge

      In his second issue, Prox argues that, with regard to the trial court’s self-

defense instructions to the jury, the trial court erred by making “repeated and

unnecessary references to a razor,” which he also contends assumed the truth of a

contested issue. He further complains that the trial court erred by denying his own

requested jury instructions on self-defense.     For purposes of our analysis, we

assume, without deciding, that Prox was entitled to an instruction on self-defense. 8

Cf. Shaw, 243 S.W .3d at 657–59; Ex parte Nailor, 149 S.W .3d 125, 133–34 (Tex.




      8
      Prox states in his briefing to this court, “Appellant denied that he used a
weapon, much less a deadly weapon, to defend himself against Mr. Howard.”

                                         18
Crim. App. 2004) (stating that when Nailor argued that he did not perform the actions

alleged by the State, he was not entitled to an instruction on self-defense).

      Prox objected “to the inclusion of the manner and means language in the

application paragraph” of the self-defense deadly force and non-deadly force

instructions. The deadly-force self-defense instruction in the application portion of

the trial court’s charge stated:

             Now, if you find from the evidence beyond a reasonable doubt
      that the defendant, James Prox, did intentionally, knowingly, or
      recklessly cause bodily injury to Rodney Howard by cutting Rodney
      Howard with a razor blade, and did then and there use or exhibit a
      deadly weapon, to-wit: a razor blade that in the manner of its use or
      intended use was capable of causing death or serious bodily injury
      during the commission of the said cutting, as alleged, but you further
      find from the evidence, or you have a reasonable doubt thereof, that
      viewed from the standpoint of the defendant at the time, from the words
      or conduct or both, of Rodney Howard, it reasonably appeared to
      defendant that his life or person was in danger and there was created
      in his mind a reasonable expectation or fear of death or serious bodily
      injury from the use of unlawful deadly force at the hands of Rodney
      Howard, and that acting under such apprehension and reasonably
      believing that the use of deadly force on his part was immediately
      necessary to protect himself against Rodney Howard’s use or
      attempted use of unlawful deadly force, he cut Rodney Howard with
      said deadly weapon, and that a reasonable person in defendant’s
      situation would not have retreated, then you will find the defendant not
      guilty. [Emphasis added.]

      The non-deadly-force self-defense instruction in the application portion of the

trial court’s charge stated:

             Now, if you find from the evidence beyond a reasonable doubt
      that on the occasion in question the defendant, James Prox[,]
      intentionally, knowingly, or recklessly cause[d] bodily injury to Rodney
      Howard by cutting Rodney Howard with a razor blade, but you further


                                         19
      find from the evidence, as viewed from the standpoint of the defendant
      at the time, that from the words or conduct, or both, of Rodney Howard
      it reasonably appeared to the defendant that his life or person was in
      danger and there was created in his mind a reasonable expectation or
      fear of bodily injury from the use of unlawful force at the hands of
      Rodney Howard, and that acting under such apprehension and
      reasonably believing that the use of force on his part was immediately
      necessary to protect himself against Rodney Howard’s use or
      attempted use of unlawful force, he cut Rodney Howard with a razor
      blade, then you should acquit the defendant on the grounds of self-
      defense, or, if you have a reasonable doubt as to whether or not the
      defendant was acting in self defense on said occasion and under the
      circumstances, then you should give the defendant the benefit of that
      doubt and say by your verdict not guilty. [Emphasis added.]

During the charge conference, Prox elaborated on his objection, stating,

      It’s our position that if the State is not bound by manner and means
      because manner and means is not an element of an offense, it would
      also not be an element of a defense. And the jury could possibly reject
      the defendant’s self-defense instruction because they didn’t find
      that—that the manner and means was proven as it’s—as it’s charged
      to the jury.9

The State responded that, if Prox’s objection was that it was all surplusage, then the

State was bound by it, so it was appropriate to have that language in the charge.

Prox provided no further argument on the issue. The trial court overruled Prox’s




      9
         W e note that if the jury did not find that the manner and means was proven
as charged, then it would have to acquit Prox, also as charged in the jury
instructions.

                                         20
objection, 10 and it denied his request that the trial court substitute Prox’s proposed

instructions for non-deadly and deadly force. 11

A. Standard of Review

      Although Prox objected to the inclusion of the manner and means in the self-

defense instructions, he did not articulate at trial the argument that he now presents

on appeal, which is that

      by submitting, over [Prox’s] objections, jury instructions that improperly
      commented on the weight of the evidence by assuming the existence
      of a controverted fact and drawing undue attention to one piece of
      evidence . . . the charge repeatedly and unnecessarily stated that the
      manner and means of assault was with a razor, which was a contested
      issue. [Emphasis added.]


      Appellate review of error in a jury charge involves a two-step process. Abdnor

v. State, 871 S.W .2d 726, 731 (Tex. Crim. App. 1994); see also Sakil v. State, 287



      10
            The trial court elaborated upon its decision, stating,

             W ell, my thought is that the language has been used the same
      in the charging paragraph of the offense . . . as in the use of self-
      defense, and that it’s consistent to use it both places or to take it out
      both places. And in the defense of self-defense it seems to me that
      basically you are, in essence, admitting the allegation that’s in the
      indictment, but simply saying I have a defense to why I did that.
             And so since it’s tracking the language in the indictment and it’s
      being used consistently, both in the charging paragraph as well as in
      the defensive paragraph, then I will overrule the objection.
      11
          In his proposed instructions, Prox asked that the application paragraphs
for self-defense state that if the jury found that he “did cause bodily injury to Rodney
Howard,” then to consider whether he acted in self-defense, without specifying how
he caused the bodily injury.

                                            21
S.W .3d 23, 25–26 (Tex. Crim. App. 2009). Initially, we must determine whether error

occurred. If it did, we must then evaluate whether sufficient harm resulted from the

error to require reversal. Abdnor, 871 S.W .2d at 731–32.

      A complaint made on appeal must comport with the complaint made in the trial

court or the error is unpreserved. See Pena v. State, 285 S.W .3d 459, 464 (Tex.

Crim. App. 2009) (“W hether a party’s particular complaint is preserved depends on

whether the complaint on appeal comports with the complaint made at trial.”). That

is, the complaint must be “essentially the same.” Clarke v. State, 270 S.W .3d 573,

580–83 (Tex. Crim. App. 2008) (discussing cases). To determine whether the

complaint on appeal comports with that made at trial, we consider the context in

which the complaint was made and the parties’ shared understanding at that time.

Pena, 285 S.W .3d at 464. Based on the context presented to us by the record, it

would appear that Prox objected to the inclusion of the manner and means language

as surplusage. Therefore, we apply the standard of review for unpreserved error to

his jury charge complaint. That is, we must decide whether, if there was error, it was

so egregious and created such harm that he did not have a fair and impartial trial.

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

Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); Allen v. State, 253 S.W .3d

260, 264 (Tex. Crim. App. 2008); Hutch v. State, 922 S.W .2d 166, 171 (Tex. Crim.

App. 1996).

B. Improper Comment


                                         22
      1. Manner and Means

      As a general rule, the trial court’s charge to the jury should correspond to the

allegations in the indictment. Hardie v. State, 588 S.W .2d 936, 938 (Tex. Crim. App.

1979); see also Andrews v. State, 652 S.W .2d 370, 374 (Tex. Crim. App. 1983)

(“The general rule is that it is usually permissible to track the pertinent part of the

charging instrument when preparing the application paragraph.”). And proof of the

use or exhibition of a deadly weapon is an essential element of the offense of

aggravated assault with a deadly weapon as charged in the indictment. See Leal

v. State, 303 S.W .3d 292, 296 (Tex. Crim. App. 2009) (“[A]ggravated assault based

on the use of a deadly weapon may become assault if the alleged use of a deadly

weapon is disproved.”); see also Rodriguez v. State, No. 04-04-00230-CR, 2005 W L

899963, at *2 (Tex. App.—San Antonio Apr. 20, 2005, pet. ref’d) (mem. op., not

designated for publication) (“Proof of the use or exhibition of a deadly weapon is an

essential element of the offense of aggravated assault as it was charged in the

indictment [under penal code section 22.02(a)(2)].”).

      The indictment here alleged that Prox

      intentionally, knowingly, or recklessly cause[d] bodily injury to Rodney
      Howard, by cutting Rodney Howard with a razor blade and did then and
      there use or exhibit a deadly weapon, to-wit: a razor blade, that in the
      manner of its use or intended use is capable of causing death or
      serious bodily injury, during the commission of said offense.

The language in the deadly-force self-defense instruction corresponded to that of the

indictment. See Hardie, 588 S.W .2d at 938; see also Tex. Code Crim. Proc. Ann.


                                          23
art. 36.14 (Vernon 2007) (stating that in delivering the jury charge, the trial court

shall set 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 [its] charge calculated to arouse the sympathy or excite the

passions of the jury”). And the language in the non-deadly force self-defense

instruction corresponded to that contained within the trial court’s lesser-included-

offense instruction on assault. Therefore, the trial court necessarily included the

manner and means of the alleged offense in its self-defense instructions. W e

overrule this portion of Prox’s second issue.

      2. Repetition

      Prox complains that the trial court’s charge “used the unnecessary and extra-

statutory term ‘razor’ in at least four application paragraphs.” Although Prox argues

that specifying the razor is a comment on the weight of the evidence, we disagree

on the facts presented by this record.

      Texas Jurisprudence sets out the following on the issue of repetition:

            It is error to give undue prominence to certain issues by
      repeating instructions relative to the same issue. W here the jury has
      once been instructed on a proposition of law, it is not necessary that the
      proposition be repeated in every paragraph of the charge.

             However, repetitions are not error when they are necessary in
      order to apply any given rule of law to the various phases of the case
      raised by the evidence, or when they are not given such prominence as
      to mislead the jury into believing that the issue referred to is the
      controlling one. Thus, the definition of an offense may be contained in
      more than one paragraph of the charge.


                                         24
24 Tex. Jur. 3d Criminal Law § 3175 (2010) (internal citations omitted); see also

Woodard v. State, 54 Tex. Crim. 86, 88, 111 S.W . 941, 942 (1908) (“The charge

does repeat on the issue of provoking the difficulty, but the charges are accurate in

every particular as laid down by the rules of this court, and we will not reverse the

case on account of repetition alone.”). Repetition of the indictment language as to

the alleged deadly weapon (razor) was necessary to apply the law of self-defense

as raised by the evidence. See 24 Tex. Jur. 3d Criminal Law § 3175.

      Furthermore, while a seemingly neutral instruction may constitute an

impermissible comment on the weight of the evidence when it singles out a particular

piece of evidence for special attention, this is not what occurred here. Cf. Bartlett

v. State, 270 S.W .3d 147, 152, 154 (Tex. Crim. App. 2008) (holding that trial court’s

seemingly neutral explanation of the law with respect to the admissibility of the

refusal to take a breath test constituted an impermissible comment on the weight of

the evidence). That is, because the case turned on the specific manner and means

used—whether Prox cut Howard with a razor blade—by necessity, the jury

instructions on aggravated assault, assault as a lesser-included offense, use of

deadly force in self-defense, and use of non-deadly force in self-defense required

the jury to make a finding on that issue. Cf. Veteto v. State, 8 S.W .3d 805, 816–17

(Tex. App.—W aco 2000, pet. ref’d) (holding that instruction improperly singled out

complainant’s testimony when it stated that if the jury believed “the victim’s”

testimony beyond a reasonable doubt, this was sufficient to support a finding of guilt,


                                          25
and that referring to the complainant as “the victim” instead of as “the alleged victim”

also constituted an improper comment on the weight of the evidence because

aggravated sexual assault case’s sole issue was whether complainant was actually

a victim), abrogated on other grounds by State v. Crook, 248 S.W .3d 172 (Tex. Crim.

App. 2008).

      W e hold that the inclusion of the word “razor” in the jury instructions, when

viewed in light of the entire jury charge, does not improperly assume that Prox used

a razor. Rather, the jury is asked to decide that if it believed that Prox used a razor

to cut Howard, as alleged in the indictment, was Prox’s action justifiable as an act

of self-defense? Cf. Marlow v. State, 537 S.W .2d 8, 9–11 (Tex. Crim. App. 1976)

(stating that there are two exceptions that allow a trial court to assume in its charge

any fact to be true—when the fact is one that the court may judicially notice and

when the defendant judicially admits that the fact is true—and holding that neither

exception applied when charge stated, “if you find . . . the motion picture film

depicting various acts of oral sodomy . . . to be obscene . . .,” when it assumed that

the motion picture film depicted those acts); Harkins v. State, 268 S.W .3d 740,

745–46 (Tex. App.—Fort W orth 2008, pet. ref’d) (holding that penal code section

49.10 referring to “the dangerous drug” must be read with intoxication definition in

section 49.01 referring to “a dangerous drug,” and that instruction specifying that “the

fact that the defendant is or has been entitled to use the dangerous drug is not a

defense [to DW I],” when one of the fact issues for the jury was whether Harkins had


                                          26
taken a dangerous drug at all, constituted an improper comment on the weight of the

evidence).

      Because the jury instructions in this case required a statement of the manner

and means, and because repeating the manner and means did not constitute error,

we need not address the remaining portion of Prox’s second issue, in which he

complains that the trial court erred by denying both of his requested jury instructions

on self-defense. See Tex. R. App. P. 47.1. W e overrule the remainder of Prox’s

second issue.

                                  IV. Conclusion

      Having overruled each of Prox’s issues, we affirm the trial court’s judgment.



                                               PER CURIAM

PANEL: MCCOY, DAUPHINOT, and GARDNER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 27, 2010




                                          27
