Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-17-00817-CR
Jayson Robert SPONABLE, Appellant
v.
The STATE of Texas, Appellee
From the County Court at Law No. 2, Guadalupe County, Texas Trial Court No. CCL-16-1291 Honorable Frank Follis, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice
Delivered and Filed: December 27, 2018
AFFIRMED
A jury found appellant Jayson Robert Sponable guilty of the offense of assault–family
violence, a misdemeanor. On appeal, Sponable contends the trial court erred in refusing to provide
the jury with instructions relating to: (1) defense of a third person; and (2) the presumption of
reasonableness that the force used was immediately necessary. We affirm the trial court’s
judgment. 04-17-00817-CR
BACKGROUND
The record shows Sponable and the victim have been in a relationship for approximately
four years. They have two children. The victim testified that on a Sunday, she and the couple’s
infant daughter went to Sponable’s place of employment — a small engine repair shop — “to
basically try to get him to come home.” The shop was closed at the time she went to see Sponable.
The victim stated she went inside to speak to Sponable, leaving her infant daughter asleep in the
car in her car seat with the air conditioner running. She said that for the first hour she was in the
shop, she could see her daughter in the car from the shop; Sponable denied this, testifying the
victim could not see outside the shop because the windows were closed and “[t]hey’re like pieces
of wood that slide in a — in like a slat[.]” The victim stated she only lost sight of her child for
thirty minutes when she and Sponable went into the shop’s office; Sponable could not see the child
either. The victim vehemently denied her daughter was unsafe while in the car — she was just
feet away at all times.
The victim testified she attempted to convince Sponable to come home, but he refused.
Sponable denied the two were even living together at that time. According to the victim, Sponable
claimed he was waiting for a customer, but she did not believe him. During his testimony,
Sponable reasserted his contention that he was waiting for a customer and was not doing drugs.
The victim contradicted this assertion, stating her belief that Sponable was under the influence of
drugs at that time — she had seen him do drugs before and testified to her familiarity with his
behavior when he is under the influence. Seguin Police Department Officer Dustin Kincaid
testified the victim advised him that Sponable had been using drugs the day before the incident at
the shop, but there was nothing in the police report about Sponable being under the influence of
drugs at the time of the incident. Officer Kincaid stated his belief that if the victim had told him
-2- 04-17-00817-CR
Sponable was under the influence of drugs at the time of the assault, he would have recorded the
information in his report.
According to Sponable, the victim came into the shop “cussing [him] out[,]” calling him
names, and accusing him of doing drugs at the shop. He claimed she was trying to provoke him.
The couple then began arguing — not for the first time — about drugs, specifically Sponable’s
addiction to methamphetamines. The victim claimed Sponable stayed at the shop after it closed
to do drugs because he knew she would not allow him to do them at home. During his testimony,
Sponable admitted that at the time he “was freaking screwed up with drugs[,]” which made his
relationship with the victim “rocky[.]” However, as noted above, he denied he was under the
influence that day.
As the victim and Sponable continued to talk, things escalated. The victim admitted on
cross-examination that during her confrontation with Sponable, she knocked over a bucket
containing nuts and bolts because she was upset. The two began yelling at each other. During his
testimony, Sponable claimed he grabbed his laptop computer and went into the office, followed
by the victim. Sponable stated the victim wanted his laptop, believing it had evidence that he was
cheating on her. Sponable testified he was trying to “get her out of the office,” screaming at her
“and just really trying to intimidate her so she would leave because she wouldn’t listen.” He stated
“the last time I tried to intimidate her, I kind of like bumped up to her and she elbowed me right
in the throat, well kind of the throat. It’s like right up under the throat meets the chest right here.”
Sponable stated he told the victim at that point he was going to “call the cops.” Sponable stated
he was trying not to touch the victim, but to get her to move out of the doorway. Sponable also
stated he did not call the police because he could not find his cell phone and assumed the victim
had picked it up. The victim denied taking the phone.
-3- 04-17-00817-CR
The victim agreed Sponable was behind her, yelling in her ear, but she denied elbowing
him in the throat area. Rather, she stated she used her elbow in his chest to push him away. The
victim stated she used her elbow against Sponable’s chest just to get away from him. Then,
according to the victim, they “started pretty much pushing each other.” According to the victim,
Sponable was “mad” and “pretty upset.” She testified she was scared based on Sponable’s
“escalating” voice and the “look on his face.” When she pushed him, he pushed back with “his
arms on [her] shoulders.” The victim claimed it became a shoving match. According to Sponable,
during this time he was actually looking for his cell phone for “probably like 20 minutes.” As he
was searching, he heard his daughter “screaming in the backseat of the car, screaming daddy,
daddy, daddy.” He testified the child’s face was red and she was crying. He denied knowing she
had been in the car during his confrontation with the victim. Sponable stated he then left the shop
and removed the child from the car.
He claimed that when he returned to the front of the shop with his daughter in his arms, the
victim was “pulling wires” out of his boss’s truck, which he used, along with cell phones and other
personal items that belonged to him. When he asked her what she was doing, she pushed him
“with my daughter in my hands, ” called me “a sorry piece of ___.” As a result of the push, he
stumbled. He then walked into the office, trying to lock the door so he could use his laptop to
contact police. He stated he was trying to get away from the victim, but once he was in the office,
the victim began trying to open the door with a crowbar. When that did not work, she began trying
to kick in the door. According to Sponable, she was also throwing his tools around in the shop
and knocked a toolbox over. At some point, the door jamb gave way and the door struck him in
the head and face. He said he suffered a “busted” lip and was bleeding, but “[i]t wasn’t that big
of a deal.” He said at that point he placed the baby on the floor in order to grab the door “and push
-4- 04-17-00817-CR
the door back on its hinge.” Sponable testified that the child “didn’t get hit … but she could of got
hurt real bad if I wouldn’t have set her down.”
At that point, according to Sponable, he “grabbed a little piece of wood that was falling”
and “hit her with it.” He described the piece of wood as trim, about 1.5" wide and 1/8" thick. He
testified he struck the victim with the wood “[b]ecause she was coming through the door to try to
attack me” and he used “immediate force to protect” himself and his daughter. He described his
actions as reasonable, stating “it could have been way worse. I’m a pretty big dude; she’s not that
big.” Sponable stated he tried to stop the victim from hitting him, advising there was nothing else
he could have done. He said he had nowhere to which he could retreat once he was in the office,
describing it as “a little cage.” Sponable admitted he also punched the victim, but claimed it was
because she “kept coming at me.” He stated the trim broke over her head because it was so flimsy
and “it didn’t even phase her.” According to Sponable, that was when he punched her, grabbed
the baby from the floor and left. He said he left with his daughter because it was his “weekend”
pursuant to their agreement. And, Sponable stated he believed the child was safer with him at that
point.
The victim, on the other hand, testified that after their shoving match Sponable ran outside
of the shop and grabbed their daughter out of the car, walked back inside, and locked himself in
the shop’s office. She denied pushing him when he removed the child from the car, but admitted
she told authorities that she tried to grab her daughter from Sponable. The victim testified
Sponable stated he was not going to give the child back to her. Although the victim admitted
Sponable was entitled to possession of the child at that time due to an agreement between the
parties, she was worried about the child’s safety given “the state [Sponable] was in at that point.”
When asked to clarify regarding Sponable’s “state,” the victim said he was “on drugs” and “irate.”
The victim testified that when Sponable is sober, he is not violent, but is respectful, well-mannered, -5- 04-17-00817-CR
and “very good to the kids.” However, when he is under the influence of drugs, “his attitude does
a whole 360.” She stated he is rude and agitated. The victim stated that when he is in such a state,
she is concerned with his ability to properly parent, explaining her desire to retrieve the child.
The victim admitted trying to open the door with a screwdriver, but could not. She then
started kicking the door, eventually kicking it in. At that point, according to the victim, Sponable
“grabbed a piece of wood” and “swung it” at the victim “with full force.” The victim, who is 5'
6" tall, stated Sponable, who is 6' 2" tall, hit her “twice in the forehead” with the piece of wood,
which she described as “three or four feet long and … probably about two or three inches wide,
like thick wise.” He then hit her on the side of the head with his fist, causing her to fall to the
floor. Sponable admitted striking the victim on the side of her head.
The State introduced and trial court admitted into evidence pictures of the victim taken the
day of the incident that showed a large knot on her forehead and a cut on her arm. Sponable denied
the wood he struck her with could have created the knot, testifying the wood actually “broke in the
air while I was swinging it.” Sponable stated his belief, with regard to the knot on the victim’s
forehead, that “she did that to herself, yeah.” The victim testified that as Sponable struck her with
the wood and his fist, he was yelling at her “is this what you wanted?” Sponable then grabbed the
child and left. The victim denied the child was involved in any portion of the physical altercation.
She also denied doing “anything destructive” to Sponable’s vehicle. She further denied taking his
cell phone or laptop computer, stating she merely picked up the laptop and placed it on top of a
mower. She admitted she did this to make Sponable believe she had taken the laptop.
After Sponable left with the child, the victim called Sponable’s mother and then went to
the police station to file a report. She later retrieved her daughter from Sponable’s mother.
Although the couple ceased living together after the incident at the shop, the victim stated the two
continued to talk through Facebook messenger and by text and phone. With regard to their -6- 04-17-00817-CR
conversations, the State introduced, and the trial court admitted into evidence, photographs of
certain Facebook messenger conversations between the victim and Sponable that occurred right
before the trial. In those conversations, Sponable accuses the victim of initially lying to law
enforcement, which she denies. Sponable admits striking the victim, but claims she was
“standing.” The victim replies that he struck her when she “was down.” Sponable states in the
messages, “I punched u and you fell.” The victim responds, stating Sponable hit her twice “with
the wood” and while she was falling he punched her. Sponable claims in the message he hit her
“once with the trim” and then “pinched” her, which the victim testified was a typographical error
and Sponable admitted he “punched” her. She denied in the Facebook messages that he hit her
with “trim,” as Sponable suggests. She then advised Sponable multiple times to watch the shop’s
video of the incident, suggesting it would support her version of events. The video could not be
recovered, though law enforcement tried.
Leopoldo Leija testified for Sponable. Leija employed Sponable and owned the shop
where the incident between Sponable and the victim took place. Leija testified the shop had a
video camera and it recorded the incident. He stated he viewed the video with Sponable. However,
according to an investigator, the night before Leija testified he told the investigator he had never
watched the video.
Leija, who testified he had seen the video, stated he saw Sponable and the victim arguing;
they were screaming and yelling at each other. Leija said he could see the victim “like swinging”
at Sponable, “hitting him a few times.” However, on cross-examination he clarified that he could
“only see her swinging.” Leija testified he saw Sponable walk toward the office. Although he
could no longer see anyone, he stated he could hear “a bunch of noise,” “like someone hit the door
and then … a bunch of screaming.” He concluded by saying that after the screaming “then like
[Sponable] goes into the office. And that’s pretty much it, you know.” Leija admitted the camera -7- 04-17-00817-CR
did not cover the office area. Leija said that when he returned to his shop he could see the door
“kind of hanging.”
With regard to the actual surveillance video, Leija testified it was destroyed when he moved
out of the building. He explained that it was damaged during the move. He moved out of the
building approximately two months after the incident between the victim and Sponable.
After hearing arguments of counsel and the jury charge, the jury retired to deliberate. It
rejected Sponable’s claim of self-defense and found him guilty of assault–family violence. The
trial court sentenced Sponable to two hundred days in jail and assessed a $1,000.00 fine.
ANALYSIS
As set out in the introduction, Sponable raises two appellate issues, both relating to the jury
charge. First, he contends the trial court erred in refusing to include a jury instruction on defense
of a third person. Second, he contends the trial court erred in refusing to include a jury instruction
on the presumption of reasonableness that the force used was immediately necessary. He further
contends the trial court’s failure to include one or both of these instructions harmed him, entitling
him to a reversal.
Standard of Review
In reviewing claims of charge error, we first ask whether there was error in the charge.
Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015); Kirsch v. State, 357 S.W.3d 645,
649 (Tex. Crim. App. 2012); Sakil v. State, 287 S.W.3d 23, 26 (Tex. Crim. App. 2009). If we
conclude there was error, there are separate standards of review for determining whether the
defendant was harmed. Rogers v. State, 550 S.W.3d 190, 191 (Tex. Crim. App. 2018); Marshall
v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016). If the defendant proffered a timely
objection, reversal is required if the defendant suffered “some harm.” Rogers, 550 S.W.3d at 191;
Marshall, 479 S.W.3d at 843. Under the “some harm” standard, reversal is required if the error -8- 04-17-00817-CR
was “calculated to injure the rights” of the defendant, i.e., there must be some harm to the
defendant from the error. Rogers, 550 S.W.3d at 191; Sakil, 287 S.W.3d at 26 (citing Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). However, if the defendant failed to timely
object to the complained-of instruction, reversal is required only if the error was so egregious and
created such harm that the defendant was denied a fair and impartial trial. Marshall, 479 S.W.3d
at 843; Villarreal v. State, 453 S.W.3d 429, 435 (Tex. Crim. App. 2015). Error is egregiously
harmful only if it affects the very basis of the case, deprives the defendant of a valuable right, or
vitally affects a defensive theory. Marshall, 479 S.W.3d at 843; Villarreal, 453 S.W.3d at 435.
This is a difficult standard to meet. Marshall, 479 S.W.3d at 843; Villarreal, 453 S.W.3d at 435.
In conducting either a review for “some harm” or egregious harm, neither the appellant nor
the State bears the burden on appeal to show harm or lack thereof. Rogers, 550 S.W.3d at 191;
Marshall, 479 S.W.3d at 843. Rather, the appellate court must examine the relevant portions of
the entire record — the entire jury charge, the state of the evidence, arguments of counsel, and
other relevant record information — to determine whether the appellant suffered actual, as opposed
to theoretical, harm as a result of the error. Rogers, 550 S.W.3d at 192; Marshall, 479 S.W.3d at
843; Villarreal, 453 S.W.3d at 435.
A trial court must provide the jury with a written charge “distinctly setting forth the law
applicable to the case; not expressing any opinion as to the weight of the evidence, not summing
up the testimony, discussing the facts or using any argument in [the] charge calculated to arouse
the sympathy or excite the passions of the jury.” TEX. CODE CRIM. PROC. ANN. art. 36.14. This
mandate requires a trial court to instruct the jury, when properly requested, on statutory defenses,
affirmative defenses, and justifications raised by the evidence. Walters v. State, 247 S.W.3d 204,
208–09 (Tex. Crim. App. 2007). The decision to exclude a defensive issue in the charge is
reviewed for an abuse of discretion. Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. -9- 04-17-00817-CR
2000) (en banc); Lee v. State, 442 S.W.3d 569, 577 (Tex. App.—San Antonio 2014, no pet.); see
Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006). When reviewing a trial court’s
decision to refuse a requested defensive instruction, we view the evidence in the light most
favorable to the defendant’s requested submission. Bufkin, 207 S.W.3d at 782; Lee, 442 S.W.3d
at 577.
A defensive issue is raised by the evidence if there is some evidence, regardless of its
source, on each element of a defense that, if believed by the jury, would support a rational inference
that the defense is true. Krajovic v. State, 393 S.W.3d 282, 286 (Tex. Crim. App. 2013); (Tex.
Crim. App. 2013); Shaw v. State, 243 S.W.3d 647, 657–58 (Tex. Crim. App. 2007). In deciding
whether a defensive issue has been raised by the evidence, a court must rely on its own judgment,
formed in light of its own common sense and experience, as to the limits of rational inference from
the facts that have been proven. Shaw, 243 S.W.3d at 658. An instruction is required when there
is legally sufficient evidence to raise the defense, regardless of whether the evidence supporting
the defense is weak or contradicted and even if the trial court is of the opinion that the evidence is
not credible. Elizondo v. State, 487 S.W.3d 185, 196 (Tex. Crim. App. 2016); Farmer v. State,
411 S.W.3d 901, 906 (Tex. Crim. App. 2013); Shaw, 243 S.W.3d at 658.
Defense of a Third Person
In his first issue, Sponable contends he was entitled to an instruction on defense of a third
person. More specifically, Sponable contends there was sufficient evidence to show he reasonably
believed the force he used against the victim was immediately necessary to protect his daughter.
Applicable Law
Section 9.33 of the Texas Penal Code provides that a person is justified in using force
against another to protect a third person if: “(1) under the circumstances as the actor reasonably
believes them to be, the actor would be justified … in using force … to protect himself against the - 10 - 04-17-00817-CR
unlawful force … he reasonably believes to be threatening the third person he seeks to protect; and
(2) the actor reasonably believes that his intervention is immediately necessary to protect the third
person.” TEX. PENAL CODE ANN. § 9.33. A “reasonable belief” is one that would be held by an
ordinary and prudent person in the same circumstances as the actor. Id. § 1.07(a)(42). The focus
of the defense is upon what the actor reasonably believes concerning the situation of the third
person. Morales v. State, 357 S.W.3d 1, 8 (Tex. Crim. App. 2011). In other words, a defendant
is justified in defending a third person if, under the circumstances as the defendant reasonably
believes them to be, the third person would be justified in defending herself. Henley v. State, 493
S.W.3d 77, 89 (Tex. Crim. App. 2016). Thus, if there is evidence that Sponable reasonably
believed that hitting the victim with the piece of wood and punching her was immediately
necessary to protect his daughter, then he was entitled to an instruction on defense of a third person.
See id.
Application
With regard to defense of a third person, Sponable contends there is evidence he struck the
victim with the wood and punched her because he reasonably believed it was immediately
necessary to protect his infant daughter. We disagree.
The evidence shows that after Sponable and the victim had been arguing for some time,
Sponable went outside and removed the infant from the car. The reason for this was disputed.
Sponable claimed he took the infant out of the car because she was in distress; the victim claimed
he did it to aggravate her. He stated he returned with the child to the inside of the shop and
attempted to lock himself and the child in the shop’s office. It is undisputed that it was only when
Sponable removed the child from the vehicle and took her into the office that the victim began
kicking the door in an attempt to retrieve the child. The victim stated that at the time she hoped
the child would not be hurt. Although Sponable argues the child could have been injured by a - 11 - 04-17-00817-CR
wood projectile from the door, there was no evidence to this effect. Moreover, Sponable admitted
that “as soon as the door broke through the first time, the door jamb started coming down” he
pushed the door back into place and set his daughter down. Sponable specifically testified his
daughter was not struck, admitting she would have “got hurt real bad” only if he had not “set her
down.” The evidence shows it was after Sponable set the child down that the victim kicked in the
door, striking Sponable in the face, and it was then that Sponable struck the victim twice in the
forehead with a piece of wood and punched her. At that point, any force by the victim was directed
at Sponable, not the child. At the time Sponable struck the victim, there was no evidence the
victim posed any threat to the child. Although Sponable testified he struck the victim in defense
of himself and his daughter, the evidence does not support a reasonable belief that at the time
Sponable struck the victim, such action was immediately necessary to protect the child.
We find this case analogous to Madrigal v. State, 347 S.W.3d 809 (Tex. App.—Corpus
Christ 2011, pet. ref’d). In Madrigal, the defendant testified he stabbed the victim because he
feared for his ex-girlfriend — the third person — “[b]ecause she was right there next to me and in
front of me. They were coming from the back of her.” 347 S.W.3d at 817. The defendant admitted
he moved his ex-girlfriend “to the side” before he stabbed the victim. Id. The appellate court held
this evidence was insufficient to entitle the defendant to an instruction on defense of a third person
because there was no evidence the third person — the defendant’s ex-girlfriend — was in danger
of being attacked by the victim. Id. at 818. The defendant’s testimony that he feared for her safety
was insufficient to raise the defense. Id.
As the defendant did in Madrigal, Sponable placed the “third person” away from an attack
directed at him. See id. at 817. When Sponable assaulted the victim, there was no evidence the
child — the “third person” — was in any danger at all — especially from the victim. See id. at
818. Sponable’s testimony that he acted in defense of his daughter is insufficient, under the - 12 - 04-17-00817-CR
circumstances, to support entitlement to an instruction on defense of a third party. Accordingly,
we hold the trial court did not err in refusing the requested instruction.
Moreover, we hold that even if the trial court erred in refusing Sponable’s request for an
instruction on the defense of a third party, such error did not result in “some harm” to Sponable.
This case is similar to those in which courts have held it was harmless error for the trial court to
fail to instruct the jury on defense of third persons, although raised by the evidence, when it
provided the jury with an instruction on self-defense and both were based on the same evidence.
See, e.g., Evans v. State, 945 S.W.2d 153, 158 (Tex. App.—El Paso, 1997, no pet.); Hernandez v.
State, 914 S.W.2d 218, 224 (Tex. App.—El Paso 1996, pet. ref’d); Curtis v. State, 754 S.W.2d
460, 462 (Tex. App.—Dallas 1988, pet. ref’d); cf. Rodriguez v. State, 524 S.W.3d 389, 393–95
(Tex. App.—Houston [1st Dist.] 2017, pet. ref’d) (holding that failure to submit necessity defense
did not cause appellant to suffer “some harm” because jury’s rejection of self-defense theory meant
it would have also rejected necessity defense); Barrios v. State, 389 S.W.3d 382, 397–98 (Tex.
App.—Texarkana 2012, pet. ref’d) (holding that failure to submit defense of third party instruction
did not cause appellant to suffer “some harm” because jury’s conclusions on defensive instruction
of necessity meant it would have also rejected defense of third party theory). In Evans, Hernandez,
and Curtis, the defendants claimed they acted in self-defense and in defense of a third person.
Evans, 945 S.W.2d at 158; Hernandez, 914 S.W.2d at 224; Curtis, 754 S.W.2d at 462. In each
case, the trial court instructed the jury on self-defense, but the jury rejected the claims of self-
defense. Evans, 945 S.W.2d at 158; Hernandez, 914 S.W.2d at 224; Curtis, 754 S.W.2d at 462.
On review in each case, the appellate courts determined that any error in refusing to instruct the
jury on defense of a third person was harmless because the jury’s negative finding on self-defense
precluded the possibility that the defendant was justified in using deadly force to defend a third
person. Evans, 945 S.W.2d at 158; Hernandez, 914 S.W.2d at 224; Curtis, 754 S.W.2d at 462. - 13 - 04-17-00817-CR
In this case, Sponable’s claim that he was entitled to both a self-defense and a defense of
third person instruction rested on the same evidence, which is detailed above. The trial court
instructed the jury on Sponable’s right to use force to protect himself from the victim’s use of force.
However, the jury implicitly rejected Sponable’s theory of self-defense by finding him guilty of
assault—family violence. Sponable’s claim of defense of a third person was based on the very
same evidence as his defense of a third person. Thus, the jury’s rejection of Sponable’s claim that
he struck the victim because he feared for himself precludes the possibility that a rational jury
would have nevertheless concluded his actions were justified to protect his daughter. See Evans,
945 S.W.2d at 158; Hernandez, 914 S.W.2d at 224; Curtis, 754 S.W.2d at 462; cf. Rodriguez, 524
S.W.3d at 393–95; Barrios, 389 S.W.3d at 397–98. Having considered the entire jury charge, the
state of the evidence, the arguments of both counsel, and, particularly, the jury’s consideration and
rejection of Sponable’s self-defense claim, we conclude the trial court’s error, if any, in failing to
instruct the jury on defense of a third person was harmless. See Rogers, 550 S.W.3d at 191; Sakil,
287 S.W.3d at 26
Presumption of Reasonableness
Sponable next contends he was entitled to an instruction on the presumption of the
reasonableness of his belief that the force he used was immediately necessary. He argues the trial
court erred in refusing to include the instruction in the charge and the omission — given his failure
to object — caused him egregious harm. The State contends Sponable was not entitled to the
instruction, but even if he was, any error in refusing the instruction did not cause him egregious
harm.
In 2007, the Texas Legislature added provisions to the Texas Penal Code that require a jury
to presume non-deadly force was reasonable under certain circumstances. Morales v. State, 357 - 14 - 04-17-00817-CR
S.W.3d 1, 6 (Tex. Crim. App. 2011). As is relevant here, section 9.31(a) of the Penal Code was
amended to provide that a defendant’s belief that the force used against another person was
immediately necessary is presumed reasonable if the defendant:
(1) knew or had reason to believe that the person against whom the force was used unlawfully and with force, entered, or was attempting to enter unlawfully and with force, the actor’s habitation, vehicle, or place of business or employment;
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor or traffic violation, at the time the force was used.
TEX. PENAL CODE ANN. § 9.31(a). Thus, this section describes the conditions under which a jury
must presume the defendant’s belief that use of force was immediately necessary was reasonable.
See id. An instruction on the presumption of reasonableness must be included in the jury charge
if there is sufficient evidence of the facts giving rise to the presumption as set out in section 9.31(a)
“unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a
reasonable doubt of the presumed fact.” Id. § 2.05(b)(1); Morales, 357 S.W.3d at 7.
We need not decide whether the trial court’s failure to instruct on the presumption of
reasonableness was error because we conclude Sponable has not suffered egregious harm. See
Villarreal, 453 S.W.3d at 433 (assuming without deciding that court of appeals properly
determined the existence of charge error). As set out above, error is egregiously harmful only if it
affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a
defensive theory. Marshall, 479 S.W.3d at 843. Egregious harm is a “high and difficult standard
to meet, and such a determination must be borne out by the record.” Villarreal, 453 S.W.3d at
433. We now examine the jury charge, the state of the evidence, arguments of counsel, and other
relevant record information to determine whether Sponable suffered actual, as opposed to
- 15 - 04-17-00817-CR
theoretical, harm as a result of the error. Rogers, 550 S.W.3d at 192; Marshall, 479 S.W.3d at
843; Villarreal, 453 S.W.3d at 433.
1. Entirety of the Jury Charge
In addition to abstract charge on assault—family violence and the application paragraph
relating thereto, the trial court charged the jury on the law of self-defense. The self-defense charge
properly informed the jury on the general law of self-defense, including when the use of force is
justified under section 9.31(a) of the Texas Penal Code, the meaning of “reasonable belief,” that
verbal provocation alone is insufficient to justify the use of force, and the matter of retreat. See
TEX. PENAL CODE ANN. § 9.31(a). With regard to retreat, the trial court instructed that retreat is
not necessary when the person has a right to be at the location where the force is used, has not
provoked the person against whom force is used, and who is not engaged in criminal activity at
the time the force is used. As Sponable complains, the charge did not include an instruction on
the presumption of reasonableness regarding his purported believe that the use of force was
immediately necessary. Id. § 9.31(a)(1)–(3).
Based on the charge in its entirety, we hold this factor does not weigh in favor of egregious
harm. See Villarreal, 453 S.W.3d at 433. If the jury had been instructed on the presumption of
reasonableness, the jury would have been informed that under some circumstances, Sponable
would not be entitled to the benefit of the presumption. See TEX. PENAL CODE ANN. § 9.31(a).
Specifically, had it been given, the jury would have been permitted to disregard the presumption
if it concluded Sponable provoked the victim or was engaged in criminal activity — other than a
Class C misdemeanor or traffic violation — at the time he struck the victim. Id.; TEXAS CRIMINAL
PATTERN JURY CHARGES, Defenses 246-47 (2013). Because the omitted instruction would have
permitted the jury to decide it did not apply under the facts of the case, this factor does not weigh
in favor of a conclusion that Sponable suffered some actual as opposed to theoretical harm from - 16 - 04-17-00817-CR
the omission. See Villarreal, 453 S.W.3d at 433. Moreover, the applicability of the omitted
instruction was dependent upon the evidence adduced at trial, to which we now turn and, as
explained below, we conclude the omitted instruction did not deprive Sponable of a fair and
impartial trial. See Villarreal, 453 S.W.3d at 433.
2. State of the Evidence
As for the state of the evidence, we begin by noting that “the mere existence of conflicting
testimony surrounding a contested issue does not necessarily trigger a finding of egregious harm.”
Id. Moreover, we must consider “the plausibility of the evidence raising the defense.” Id.
With regard to the evidence, it shows Sponable and the victim were initially engaged in a
verbal confrontation that led to some pushing and shoving. The argument centered around
Sponable’s alleged drug use. However, it was only when Sponable removed the couple’s child
from the victim’s vehicle and attempted to lock himself and the child in the shop’s office that
things escalated. At that point, it is undisputed the victim began to make all efforts to retrieve the
child from Sponable, including kicking the door to the office. Although the victim admitted that
pursuant to their agreement, Sponable was entitled to possession of the child on the day in question,
she testified he was under the influence of drugs at the time — his drug of choice being
methamphetamines. She also stated that by the time he removed the child from the vehicle, he
was “irate” and when he took the child he was “still verbalizing his anger.” The victim testified
she had been around Sponable when he was using and recognized the signs — describing Sponable
as sort of a Jekyll and Hyde with regard to his personality off and on drugs. Sponable denied using
drugs that day, but admitted that at the time he “was freaking screwed up with drugs.”
The victim testified to her belief that Sponable took their infant daughter from the vehicle
not in an effort to console her — the victim denied the baby was crying or in any distress — but
to “aggravate” her. She stated Sponable was aware that when he would take the child and the - 17 - 04-17-00817-CR
victim would ask him to return her, an argument would ensue if Sponable refused. Such an
argument would begin with yelling and screaming, but would then escalate. As the victim stated,
“and then it — it gets more than that,” which suggests devolvement into a physical altercation. On
the day of the assault, the victim testified she was telling Sponable over and over to return the baby
to her, but “he kept saying, I’m not giving her back to you.” The victim was frantic about the baby
because Sponable “was obviously doing drugs the night before and he was still high that day.”
Sponable’s evidence of self-defense, which is set out in detail in the background portion
above, was weak in comparison to evidence from the victim that he provoked her by taking the
child — knowing such actions would escalate into a physical confrontation, refused to return the
child, and struck her twice in the forehead with a piece of wood and then punched her. The
photographs of the victim’s injuries belie Sponable’s claim that he struck her with a flexible piece
of door trim. Given the evidence, and the jury’s rejection of Sponable’s claim of self-defense, a
rational jury could have found beyond a reasonable doubt that Sponable provoked the victim by
taking the child and locking himself and the child in the office. The jury could have also rationally
concluded, given the victim’s testimony that Sponable was under the influence of drugs and how
he behaved when under the influence, that Sponable was endangering the infant, which is an
offense under the Penal Code. 1 See TEX. PENAL CODE ANN. § 22.041(c). Because a rational jury
could have determined Sponable provoked the victim and was committing the offense of child
endangerment at the time he assaulted the victim, it most certainly could have concluded Sponable
1 A person commits the offense of child endangerment if he intentionally, knowingly, recklessly, or with criminal negligence, by act of omission, engages in conduct that place a child under the age of fifteen in imminent danger of death, bodily injury, or physical or mental impairment. TEX. PENAL CODE ANN. § 22.041(c). For purposes of subsection (c), it is presumed that a person engaged in such conduct if the person injected, ingested, inhaled, or otherwise introduced a controlled substance listed in Penalty Group 1 in section 481.102 of the Texas Health and Safety Code into the human body when the person was not in lawful possession of such substance. Id. 22.041(c-1)(3). There was evidence Sponable had ingested methamphetamines, which is listed in Penalty Group 1. See TEX. HEALTH & SAFETY CODE ANN. § 481.102(6).
- 18 - 04-17-00817-CR
was not entitled to a presumption of reasonableness with regard to his use of force. See TEX.
PENAL CODE ANN. § 9.31(a). Accordingly, we hold the state of the evidence does not weigh in
favor of a finding of egregious harm because two of the three elements necessary for the omitted
instruction are not supported by the evidence. See Villarreal, 453 S.W.3d at 439–40.
3. Arguments of Counsel
The arguments by the State and Sponable’s counsel show both were focused primarily on
whether Sponable acted in self-defense, specifically the concept of retreat and whether Sponable
had a “reasonable belief” that the amount of force used was necessary under the circumstances.
The State devoted the majority of its argument to challenging the reasonableness of Sponable’s
belief that the forced used, specifically the amount of force, was necessary. The State emphasized
the lack of reasonableness of Sponable’s actions based on the discrepancies between the size of
the victim and that of Sponable and the actual force used by Sponable — two strikes in the forehead
with a board and a punch to the side of the head. In fact, the prosecutor began the closing argument
by stating the case boiled down to whether Sponable was “justified in striking” the victim “three
times.” Thus, it appears the prosecutor was attempting to convince the jury Sponable’s belief that
the force he used against his much smaller victim was not a belief that would have been held by
an ordinary and prudent person under the same circumstance — the very definition submitted to
the jury for the phrase “reasonable belief.” Although the record shows the prosecutor referenced
provocation and the possibility of criminal conduct by Sponable, which are components of a
presumption of reasonableness instruction, provocation and absence of criminal activity are also
components of the concept of “retreat,” which was part of the self-defense instruction given to the
jury.
In Sponable’s closing argument, his counsel also focused on self-defense, specifically
pointing out to the jury that the prosecutor “emphasized … the duty not to retreat.” This suggests - 19 - 04-17-00817-CR
that even Sponable’s counsel recognized the State’s argument was based on the legal concept of
retreat, not the presumption of reasonableness. Counsel responded to the State’s claim that the
force used was not reasonable, arguing Sponable’s use of force “was reasonable and proportional.”
Counsel also argued about the State’s burden of proof with regard to self-defense and the meaning
of “beyond a reasonable doubt,” contending the State had not met its burden to negate Sponable’s
claim of self-defense. He also pointed to evidence of Sponable’s alleged retreat, contending the
victim was the aggressor. Counsel emphasized the victim’s lack of credibility, suggesting
Sponable was on trial — and not the victim — only because the victim contacted police first.
Sponable’s counsel pointed out Sponable had a right not to testify, but he chose to tell his story
because he was innocent, acting only in defense of himself and his child.
Based on the arguments, we conclude the focus of the closing arguments by the State and
Sponable was the applicability of self-defense, particularly as it related to the concept of retreat
and the reasonableness of the amount of force used by Sponable under the circumstances. Because
the omitted presumption-of-reasonableness instruction pertains only to the question of the
reasonableness of an actor’s belief that the use of force was immediately necessary, and because
the reasonableness of Sponable’s belief in this regard was not the center of either parties’ argument,
we conclude this factor weighs against a finding of egregious harm. See Villarreal, 453 S.W.3d
at 441–42. The crux of the arguments presented centered on the reasonableness of the amount of
force used under the circumstances, not the belief that it was immediately necessary. See id.
4. Other Relevant Information
The last factor requires that we consider any other relevant information revealed by the
record as a whole in determining whether Sponable suffered egregious harm based on the omission
of the presumption-of-reasonableness instruction. See id. at 433. Our consideration of the record
- 20 - 04-17-00817-CR
with regard to the other three factors includes all relevant information from the record as it relates
to the egregious-harm inquiry.
5. Conclusion — Egregious Harm
Mindful that error is egregiously harmful only if it affects the very basis of the case,
deprives the defendant of a valuable right, or vitally affects a defensive theory, and that it is a high
and difficult standard, we hold the record does not bear out a finding of actual, as opposed to
theoretical, egregious harm. See Marshall, 479 S.W.3d at 843; Villarreal, 453 S.W.3d at 433. We
therefore overrule Sponable’s contention that he suffered egregious harm based on the trial court’s
error, if any, in refusing to instruction the jury on the presumption of reasonableness.
CONCLUSION
We have analyzed the record in accordance with the applicable law under the proper
standards of review. Based on our analysis, we hold: (1) the trial court did not err in refusing
Sponable’s request for an instruction on defense of a third person, and that even if such refusal
was error, Sponable did not suffer “some harm”; and (2) that even assuming the trial court erred
in refusing to instruct the jury on the presumption of reasonableness that the force used was
immediately necessary, the record does not bear out Sponable’s claim that he suffered egregious
harm based on the absence of the instruction. Accordingly, we overrule Sponable’s issues and
affirm the trial court’s judgment.
Marialyn Barnard, Justice
Do Not Publish
- 21 -