Joe Pearl Windham v. State
Opinion
In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-19-00063-CR ___________________________
JOE PEARL WINDHAM, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 78th District Court Wichita County, Texas Trial Court No. 59,187-B
Before Sudderth, C.J.; Womack and Wallach, JJ. Memorandum Opinion by Justice Wallach MEMORANDUM OPINION
This is an alleged road-rage case in which the only eyewitnesses were the
complainant, the accused, and the accused’s adult son, who was a passenger in the
accused’s pickup at the time of the incident. The jury was presented with differing
stories from which it had to piece together the true facts of the event. The accused,
appellant Joe Pearl Windham, attempted to raise self-defense as a justification for his
actions, but the trial court denied his request for a self-defense instruction to the jury.
Based on our review of the entire record, we conclude that the trial court erred by
refusing Windham’s requested self-defense instruction and that this refusal caused
Windham some harm. Accordingly, we reverse Windham’s conviction for aggravated
assault with a deadly weapon and remand the case for a new trial.
I. PROCEDURAL BACKGROUND1 Law enforcement responded to a 911 call about a person in a pickup pointing a
gun at a tractor-trailer driver. A Clay County Sheriff’s Deputy pulled over the pickup
driver, Windham; conducted an investigation that included talking to Michael Horton,
the tractor-trailer driver; and arrested Windham. A grand jury later indicted Windham
for aggravated assault with a deadly weapon, alleging that Windham had “intentionally
or knowingly threaten[ed] . . . Horton with imminent bodily injury by pointing a
firearm at or in the direction of” Horton while using or exhibiting a deadly weapon.
1 Because our discussion of Windham’s complaints on appeal requires a thorough review of the evidence at trial, we provide a more detailed explanation of that evidence in our analysis of those complaints.
2 After a trial at which Horton and Windham were the primary witnesses, a jury
convicted Windham of aggravated assault and assessed his punishment at five years’
confinement and a $5,000 fine. However, the jury also recommended that Windham’s
sentence be suspended and that he be placed on community supervision. The trial
court sentenced Windham in accordance with the jury’s verdict, placing him on two
years’ community supervision.
II. ISSUES ON APPEAL
Windham brings five issues on appeal. In two of his issues, Windham
challenges the sufficiency of the evidence to support his conviction, and in the other
three issues, he challenges the trial court’s denial of his requested jury instructions on
nondeadly-force self-defense, deadly-force self-defense, and necessity. We will address
his sufficiency issues first because they could afford him the greatest relief if
sustained. See Roberson v. State, 810 S.W.2d 224, 225 (Tex. Crim. App. 1991) (per
curiam).
III. SUFFICIENCY OF THE EVIDENCE
In his first issue, Windham argues that the evidence is insufficient to prove
beyond a reasonable doubt that he committed aggravated assault with a deadly
weapon. We disagree.
A. Standard of Review and Applicable Law
In our evidentiary-sufficiency review, we view all the evidence in the light most
favorable to the verdict to determine whether any rational factfinder could have found
3 the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex.
Crim. App. 2017). This standard gives full play to the factfinder’s responsibility to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at
2789; Queeman, 520 S.W.3d at 622.
The factfinder alone judges the evidence’s weight and credibility. See Tex. Code
Crim. Proc. Ann. art. 38.04; Queeman, 520 S.W.3d at 622. We may not re-evaluate the
evidence’s weight and credibility and substitute our judgment for the factfinder’s.
Queeman, 520 S.W.3d at 622. Instead, we determine whether the necessary inferences
are reasonable based on the evidence’s cumulative force when viewed in the light
most favorable to the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.
2015); see Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). We must
presume that the factfinder resolved any conflicting inferences in favor of the verdict,
and we must defer to that resolution. Murray, 457 S.W.3d at 448–49.
To determine whether the State has met its Jackson burden to prove a
defendant’s guilt beyond a reasonable doubt, we compare the crime’s elements as
defined by the hypothetically correct jury charge to the evidence adduced at trial. See
Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); see also Febus v. State,
542 S.W.3d 568, 572 (Tex. Crim. App. 2018) (“The essential elements of an offense
are determined by state law.”). Such a charge is one that accurately sets out the law, is
4 authorized by the indictment, does not unnecessarily increase the State’s burden of
proof or restrict the State’s theories of liability, and adequately describes the particular
offense for which the defendant was tried. Jenkins, 493 S.W.3d at 599. The “law as
authorized by the indictment” means the statutory elements of the charged offense as
modified by the factual details and legal theories contained in the charging instrument.
See id.; see also Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014) (“When the
State pleads a specific element of a penal offense that has statutory alternatives for
that element, the sufficiency of the evidence will be measured by the element that was
actually pleaded, and not any alternative statutory elements.”).
As applicable here, a person commits aggravated assault if the person
intentionally or knowingly threatens another with imminent bodily injury and in doing
so uses or exhibits a deadly weapon. Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2).
Thus, we must determine if the evidence supports a determination beyond a
reasonable doubt that Windham used or exhibited a deadly weapon to intentionally or
knowingly threaten Horton with imminent bodily injury. See id.; De Leon v. State,
865 S.W.2d 139, 142 (Tex. App.—Corpus Christi–Edinburg 1993, no pet.).
B. Evidence at Trial
The events at issue occurred on June 6, 2017, during evening rush-hour traffic
in Wichita Falls, as Windham and Horton were traveling on an elevated portion of
southbound Highway 287 known as the flyover. The flyover has two constant lanes of
travel, but because it also has on-and-off ramps that merge onto or split away from
5 the highway on both sides, it has two, three, or four lanes of travel depending on the
driver’s location.
Horton was driving a Peterbilt truck with an attached trailer that together were
eight feet, six inches wide and seventy-nine-feet long. Horton was the only occupant
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In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-19-00063-CR ___________________________
JOE PEARL WINDHAM, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 78th District Court Wichita County, Texas Trial Court No. 59,187-B
Before Sudderth, C.J.; Womack and Wallach, JJ. Memorandum Opinion by Justice Wallach MEMORANDUM OPINION
This is an alleged road-rage case in which the only eyewitnesses were the
complainant, the accused, and the accused’s adult son, who was a passenger in the
accused’s pickup at the time of the incident. The jury was presented with differing
stories from which it had to piece together the true facts of the event. The accused,
appellant Joe Pearl Windham, attempted to raise self-defense as a justification for his
actions, but the trial court denied his request for a self-defense instruction to the jury.
Based on our review of the entire record, we conclude that the trial court erred by
refusing Windham’s requested self-defense instruction and that this refusal caused
Windham some harm. Accordingly, we reverse Windham’s conviction for aggravated
assault with a deadly weapon and remand the case for a new trial.
I. PROCEDURAL BACKGROUND1 Law enforcement responded to a 911 call about a person in a pickup pointing a
gun at a tractor-trailer driver. A Clay County Sheriff’s Deputy pulled over the pickup
driver, Windham; conducted an investigation that included talking to Michael Horton,
the tractor-trailer driver; and arrested Windham. A grand jury later indicted Windham
for aggravated assault with a deadly weapon, alleging that Windham had “intentionally
or knowingly threaten[ed] . . . Horton with imminent bodily injury by pointing a
firearm at or in the direction of” Horton while using or exhibiting a deadly weapon.
1 Because our discussion of Windham’s complaints on appeal requires a thorough review of the evidence at trial, we provide a more detailed explanation of that evidence in our analysis of those complaints.
2 After a trial at which Horton and Windham were the primary witnesses, a jury
convicted Windham of aggravated assault and assessed his punishment at five years’
confinement and a $5,000 fine. However, the jury also recommended that Windham’s
sentence be suspended and that he be placed on community supervision. The trial
court sentenced Windham in accordance with the jury’s verdict, placing him on two
years’ community supervision.
II. ISSUES ON APPEAL
Windham brings five issues on appeal. In two of his issues, Windham
challenges the sufficiency of the evidence to support his conviction, and in the other
three issues, he challenges the trial court’s denial of his requested jury instructions on
nondeadly-force self-defense, deadly-force self-defense, and necessity. We will address
his sufficiency issues first because they could afford him the greatest relief if
sustained. See Roberson v. State, 810 S.W.2d 224, 225 (Tex. Crim. App. 1991) (per
curiam).
III. SUFFICIENCY OF THE EVIDENCE
In his first issue, Windham argues that the evidence is insufficient to prove
beyond a reasonable doubt that he committed aggravated assault with a deadly
weapon. We disagree.
A. Standard of Review and Applicable Law
In our evidentiary-sufficiency review, we view all the evidence in the light most
favorable to the verdict to determine whether any rational factfinder could have found
3 the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex.
Crim. App. 2017). This standard gives full play to the factfinder’s responsibility to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at
2789; Queeman, 520 S.W.3d at 622.
The factfinder alone judges the evidence’s weight and credibility. See Tex. Code
Crim. Proc. Ann. art. 38.04; Queeman, 520 S.W.3d at 622. We may not re-evaluate the
evidence’s weight and credibility and substitute our judgment for the factfinder’s.
Queeman, 520 S.W.3d at 622. Instead, we determine whether the necessary inferences
are reasonable based on the evidence’s cumulative force when viewed in the light
most favorable to the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.
2015); see Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). We must
presume that the factfinder resolved any conflicting inferences in favor of the verdict,
and we must defer to that resolution. Murray, 457 S.W.3d at 448–49.
To determine whether the State has met its Jackson burden to prove a
defendant’s guilt beyond a reasonable doubt, we compare the crime’s elements as
defined by the hypothetically correct jury charge to the evidence adduced at trial. See
Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); see also Febus v. State,
542 S.W.3d 568, 572 (Tex. Crim. App. 2018) (“The essential elements of an offense
are determined by state law.”). Such a charge is one that accurately sets out the law, is
4 authorized by the indictment, does not unnecessarily increase the State’s burden of
proof or restrict the State’s theories of liability, and adequately describes the particular
offense for which the defendant was tried. Jenkins, 493 S.W.3d at 599. The “law as
authorized by the indictment” means the statutory elements of the charged offense as
modified by the factual details and legal theories contained in the charging instrument.
See id.; see also Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014) (“When the
State pleads a specific element of a penal offense that has statutory alternatives for
that element, the sufficiency of the evidence will be measured by the element that was
actually pleaded, and not any alternative statutory elements.”).
As applicable here, a person commits aggravated assault if the person
intentionally or knowingly threatens another with imminent bodily injury and in doing
so uses or exhibits a deadly weapon. Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2).
Thus, we must determine if the evidence supports a determination beyond a
reasonable doubt that Windham used or exhibited a deadly weapon to intentionally or
knowingly threaten Horton with imminent bodily injury. See id.; De Leon v. State,
865 S.W.2d 139, 142 (Tex. App.—Corpus Christi–Edinburg 1993, no pet.).
B. Evidence at Trial
The events at issue occurred on June 6, 2017, during evening rush-hour traffic
in Wichita Falls, as Windham and Horton were traveling on an elevated portion of
southbound Highway 287 known as the flyover. The flyover has two constant lanes of
travel, but because it also has on-and-off ramps that merge onto or split away from
5 the highway on both sides, it has two, three, or four lanes of travel depending on the
driver’s location.
Horton was driving a Peterbilt truck with an attached trailer that together were
eight feet, six inches wide and seventy-nine-feet long. Horton was the only occupant
of his vehicle, but he had been traveling with another driver, Danny Williams, who
was driving in his own, nearly identical Peterbilt. Horton had lost sight of Williams in
Burkburnett and did not know where he was when the incident occurred. Windham
was driving a pickup and was hauling a thirty-five-foot long ocean-going boat that
weighed about six to seven thousand pounds. Windham’s adult son Chad was sitting
in the front-passenger seat, and his other adult son Chance was sitting in the
passenger-side back seat.
1. Horton’s testimony
Horton testified that he traveled on Highway 287 through Wichita Falls three
or four times a month and usually stayed in the second lane from the left (lane 2)
while driving through because that lane continues straight through the city. Horton
said that he first noticed Windham’s pickup upon entering the flyover. According to
Horton, the flyover had three lanes at that point; Horton was in the middle lane (lane
2), and the pickup was in the right lane (lane 3). As Horton was about to pass the
pickup and boat, the pickup driver sped up, “jumped over in front of” Horton, and
then immediately slowed down, causing Horton to slow down. The pickup then
moved back over to the right, into lane 3. Horton sped up to go around the pickup,
6 but the pickup driver sped up again, moved back in front of Horton, slowed down,
and then moved back over into lane 3. Although lane 3 becomes an exit ramp at
Highway 82, reducing Highway 287 to only two lanes before a right-side on-ramp
widens it again to three, Horton said that these events occurred before that location.
Horton testified he was driving fifty-five or sixty miles per hour during this part of the
encounter.
According to Horton, he stayed in lane 2 to continue on southbound Highway
287. After they passed the Highway 82 exit, the pickup was in front of him in lane 2.
After the road widened again to three lanes, the pickup then moved over into the
right lane (lane 3), and as Horton pulled alongside the pickup to pass, the same thing
happened: “he pulled ahead of me and went back over.” Horton then passed the
pickup.
The pickup driver, still in lane 3, then passed Horton and did the same thing:
moved over into lane 2 from lane 3, slowed down, and moved back over into lane 3.
Before lane 1 became a left-side exit ramp, the pickup driver moved the pickup
behind Horton and then into lane 1. As the pickup moved alongside Horton’s driver’s
side window, Horton saw a “pistol hanging out the window--or pointing up at [him]
from inside the” pickup in front of the front-seat passenger; the driver was holding
the pistol. Horton was “[s]ort of” looking down the barrel of the gun because his
seats rode higher than the pickup. Horton described the pistol as “a . . . blue[-]barrel
7 revolver.” Horton could see the driver’s face and identified Windham as the person
who had pointed the gun at him. Horton testified that he felt threatened by the gun.
Horton testified that he then let off the accelerator and leaned back in his seat
to “get[] as far away from [the gun] as [he] could and mak[e] [himself] less visible.”
The pickup driver then pulled away and moved down the road. Horton called 911 but
continued to follow the pickup, letting it “get some distance” from him.
Horton denied pushing the pickup into another semi-truck, crowding it into
another lane, or cutting it off. He did not recall anything about a “near collision.” He
also denied making any rude or obscene gestures, being aggravated by or mad at the
pickup driver’s cutting him off, or taking any aggressive actions himself.
2. The 911 call
The trial court admitted the recording of Horton’s 911 call into evidence.
When the operator asked Horton, “What’d he’d point [the gun] at you for?” Horton
answered,
I have no idea. All I know is he, he cut me off, and then he got back over in the other lane and slowed down, and I went ahead and passed around him. Next thing I knew, he comes speeding up beside me sticking his pistol out the window at me. Horton explained in more detail that
he was coming in through town in, uh, slow traffic, and I went around, and next thing I know he shoots up beside me and cuts me off and then slows back down, and I just went ahead, . . . I had my cruise control set and I just went back around him. And next thing I know we’re coming out of town and he’s speeding beside me and I’ve got a pistol hanging out the window at me. [Emphasis added.]
8 The 911 operator instructed Horton to pull over when the officers pulled over
the pickup driver. Horton also explained to the operator that he was traveling with
another driver:
911 operator: “You’re in a black Peterbilt semi?” Horton: “Yes.” 911 operator: [Talking over dispatch] “RP is going to be in a black Peterbilt semi.” Horton: “There’s two of us though, don’t get - I’m the one in front.” [laughs] 911 operator: “He’s advising that there are two of him, uh, there’s another one that looks like his but he’s gonna be the front.” 3. Deputy William Norris and Norris’s dash-cam video
Clay County Sheriff’s Deputy2 William Norris testified that he stopped the
pickup in response to the 911 call. According to Deputy Norris, the driver and his
two passengers claimed that they had been involved in an altercation with another
vehicle in which the pickup’s right, side-view mirror hit an eighteen-wheeler.3 Deputy
Norris testified that he did not see any damage to the passenger side of the boat or
damage to the pickup and that there was no evidence of contact on the pickup’s right-
hand mirror. Deputy Norris did not compare the left- and right-hand mirrors, though,
2 By the time of trial, Deputy Norris worked for the Electra Police Department. 3 As explained below, Windham’s story is that where lane 3 of the flyover ends as an exit ramp to the right, Horton (in lane 1) forcefully pushed Windham’s pickup (in lane 2) into the far-right lane (lane 3) and into a red truck.
9 to determine if the right-hand mirror had been pushed in. He admitted that he could
not speculate whether the mirror had been disturbed.
The trial court admitted footage from Deputy Norris’s dash-cam into evidence.
After Windham stopped, he almost immediately stated, “I got out of his way . . .
[unintelligible]. Then he come and chased me down, ran me into [unintelligible].”
Windham told Deputy Norris, “He ran me off the road. . . . [R]an me into the other
truck. Tried to crush us between two trucks.” Windham then said,
He, he came over in my lane twice. . . . All I did was pull up, accelerate to go out and get in front of him. . . . I have no earthly idea what pissed him off at that. I wasn’t that close, I do not believe so. But then he come and chase me down and, and ran me into another truck. I mean, he came to get me. Later in the video, Windham again told Deputy Norris that he had hit the other
truck with the pickup’s passenger-side mirror: they “touched.” Windham told the
officer, “[T]he guy tried to kill me . . . between two trucks. Tried to kill my kids.” He
repeatedly stated that the other driver had “attacked” him with his tractor-trailer.
Windham also elaborated,
That was assault with a deadly weapon. That automobile, he used that damn truck. He, he might as well’ve pulled a knife, a gun, or something like that. . . . That’s attempted murder of three people, in my opinion. I wouldn’t have reacted so badly. I would have been able to call. I wouldn’t have gotten so choked up. . . . I know they’re grown men to you, but they’re still my babies. . . . He damn near wiped out my whole family. [Deputy Norris’s interjecting remarks omitted.] When Deputy Norris asked Windham if he had tried to speed up to get away from the
other driver, Windham responded,
10 [H]e chased me down. I’ve got a boat. I’m in a half-ton truck with a 24- foot boat. I can’t, I can’t run, I can’t hide. . . . He was running off the side of the road on the corner with his . . . trailer. I tried to speed up and get around him and get in front of him. And he come and chased us down and ran me into that other damn truck. Windham also told Deputy Norris that he had tried to call 911, but that he did
not connect. Chad said that he did not call 911.
Windham denied pointing his gun at the other driver. He also denied reaching
across the front seat and pointing a gun up at the other driver, stating, “No, I did not.
I did, I did throw him the finger, I did throw him my fist. I did . . . rage. I did tell him,
‘f[***] you, m[***** ******], g[*******] tried to kill us.’” When the officer later again
asked, “Did you ever point the weapon at him?,” Windham responded, “No. I, I
pointed my finger at him, I shook . . . my fist at him, we all did. I rolled the window
down and screamed at him. Why, ‘You, you tried to kill us! What the f[***] is wrong
with you?’ That’s exactly what I said.” Windham then added, “I had my iPad in my
hand. I pointed my iPad at him.”
4. Clay County Sheriff’s Sergeant Jody Polvado and Polvado’s dash- cam video
Clay County Sheriff’s Sergeant Jody Polvado assisted in the traffic stop of the
pickup. He testified that he searched for, located, and took possession of a fully
loaded black revolver with a long barrel.4 The sergeant testified that he looked over
4 The sergeant testified that Windham had a license to carry and was certified to carry a gun.
11 the pickup “pretty thoroughly” and “didn’t see any damage at all,” including on the
passenger-side mirror. Sergeant Polvado also admitted, however, that he did not
operate the electronic extension to make the mirrors go out and in; he just visually
examined them. He did not observe one mirror’s being pushed in closer than the
other.
Sergeant Polvado also spoke with Horton after he had pulled over as instructed
by the operator. Sergeant Polvado testified that Horton told him that Windham had
cut in front of him so closely that he could not see the motors on the boat. In the
video from Sergeant Polvado’s dash-cam, Horton described what his tractor-trailer’s
dash-cam would have shown had it been recording that day5: “It woulda showed that
they cut me off. . . . I couldn’t even see the back-end of the motors on the boat. . . .
Like I said, after that, he just jumped over in the right-hand lane, and I just kept on
going, went on past him.”
Sergeant Polvado also interviewed Williams, who had stopped to check on
Horton. According to Sergeant Polvado, Williams told him that he was so far behind
Horton that he did not witness anything.
5. Trooper Benjamin Wolf and Wolf’s dash-cam video
Department of Public Safety Trooper Benjamin Wolf testified that by the time
he arrived, Horton’s and Williams’s two commercial tractor-trailers were parked on
Horton explained at trial that although his tractor-trailer is equipped with a 5
dash-cam, it did not record that day’s events because it had been locked inadvertently.
12 the side of the roadway shoulder.6 Trooper Wolf’s dash-cam video showed Sergeant
Polvado giving Trooper Wolf information about the incident and then both officers
having a largely unintelligible conversation with Horton. After that conversation,
Trooper Wolf told Sergeant Polvado: “If they did sideswipe, there’s no reason to pull
a gun.”
Trooper Wolf testified that when he asked Horton if he felt threatened by
Windham’s actions, Horton responded, “No, I was pissed.” Trooper Wolf admitted
that before he interviewed Windham, he had already told Horton that he was going to
arrest Windham, most likely for “ag assault,” based on Horton’s statement. Before
interviewing Windham, Trooper Wolf told Horton that he could leave; Horton drove
away as Trooper Wolf drove over to where Windham’s pickup was parked. Trooper
Wolf had previously told Williams he could leave because Williams stated that he had
not witnessed anything.
Trooper Wolf testified that he secured the loaded weapon, which he described
as a long-barrel Smith and Wesson .38 caliber revolver with a synthetic wooden-type
grip with a bluish-black color to it; he testified that Horton’s description of the gun on
the 911 call matched the gun exactly.
Trooper Wolf interviewed Windham after reading him his Miranda rights. The
interior dash-cam footage from Wolf’s car showed that when Trooper Wolf asked
During trial, Trooper Wolf’s rank was corporal, but we will refer to him as 6
Trooper Wolf because that was his rank at the time of the offense.
13 Windham what had occurred, Windham responded, “The, the truck driver ran us off
the road into another truck. We actually touched the other truck. I do not know what
set him off,” explaining that his passenger-side mirror had hit the other truck. When
Trooper Wolf asked Windham if he had called anybody about the crash, Windham
responded that he had tried but that he was driving with the boat and pushing buttons
while his phone was locked, adding, “I felt my two kids were, you know, I just got
attacked with a deadly weapon so I was a little bit shook up.” 7
Trooper Wolf testified that Windham said that his pickup had been forced off
the road and that his passenger-side mirror had “touched” another truck. Trooper
Wolf did not see any evidence of damage to the pickup’s right-side mirror, and he
would have expected to see some indication of contact if the vehicles had been
traveling sixty miles per hour. The trooper also admitted that he did not operate the
mirrors’ motors and could not rule out that Windham’s pickup had touched another
vehicle on the highway.
Trooper Wolf testified that Windham denied pointing a gun at Horton or
displaying a gun. The trooper’s dash-cam video also showed Windham denying that
anything happened with the gun but having no response to the trooper’s asking how
Horton could know that there was a gun in Windham’s pickup. Windham said that
7 Communications supervisors for the Wichita Falls Police Department and Clay County Sheriff’s Office testified that they could not find any 911 calls for a motor-vehicle accident or near-collision around the applicable time on the day of the incident. Horton’s call did not mention any motor-vehicle accident or near-collision.
14 the gun was in his console, that Horton had attacked him with his tractor-trailer, that
he got “pissed off” at Horton, and that he threw his ipod at Horton and shot him the
finger. Windham further complained that the officers had let Horton go, claiming that
he had been attacked with the semi-truck because Horton was in a road rage.
Windham explained that he had tried to call 911 and claimed to have “movies”
of the incident. Windham then explained that he was going to pull over but that he
had not by the time he saw the officers attempting to pull him over. Trooper Wolf
remarked that the stop was about twenty miles away from where the incident had
happened, and Windham responded: “He’s following us. There’s two trucks following
us, it was all the way. I, I was in fear of my life.” He reiterated that Horton had been
following them and “had just tried to run [them] off the road.”
Trooper Wolf told Windham that the other driver had a dash-cam video, and
Windham responded: “I hope he does. I hope he does.” Trooper Wolf interjected:
“He sure does.” Then Windham asked: “Did you see him try to kill us?” Trooper
Wolf responded: “No, sir, I did not.” 8 Trooper Wolf then arrested Windham for
aggravated assault.
The trooper’s dash-cam video also showed that after Trooper Wolf arrested
Windham, Windham spoke with his sons and told them: “Don’t get . . . fuzzy like I
Trooper Wolf testified at trial that he was unable to view any material from the 8
SIM card on Horton’s dash-cam.
15 did.” Trooper Wolf testified that he took this statement to mean that Windham was
saying, “[D]on’t do what I did.”
6. Chad Windham
The defense called Windham’s adult son Chad to testify. Chad, who was sitting
in the front-passenger seat, testified about the family’s encounter with Horton’s
tractor-trailer and the near-collision:
[W]e were coming down 287 and we were in the middle lane of the highway. . . . And I believe right at the split, . . . we were moving over into the left-hand lane, and then I guess a truck behind us thought we had cut him off. But we’re toting a boat so, you know, we’re going 60 miles per hour. . . . We get back into the middle lane. At that time, the truck driver on the left-hand lane pulls forward. I can see him in front of me. He then decides to move into our lane, pushing us into the right- hand lane. On the right-hand lane, there was a red truck. We made contact with that vehicle just as he split. I mean, it was seconds. And that’s exactly what happened right there. I don’t know where the split was. Chad testified that their right-hand mirror was pushed in, explaining that it happened
just when the red truck split off and that “[i]f he hadn’t split off, we would have
crashed.” According to Chad, Horton pushed them into the red truck without making
contact with the driver’s side of their pickup or boat:
Q. Okay. So did he drift in his lane? A. He forcefully pushed us into that red truck. .... Q. . . . . You’re saying that he forcefully maneuvered, aggressively, so that your – the vehicle your father was operating contacted the red truck and yet he, in the 79-foot trailer going this way into you, didn’t contact your vehicle?
16 A. Correct. Q. Okay. Was the cab of Mr. Horton’s vehicle, the truck part, was it past you when he came over? A. Yes, sir. Q. Okay. So Mr. Horton was ahead of you when he forcefully pushed you and your father and your brother into this red truck and missed you, right? A. Yes, sir. Chad testified that he was “[a]bsolutely” in fear for his life and that he had never been
that afraid before. He later testified that he “could have kissed that semi.”
Next, according to Chad, their pickup was in the left of two lanes; Horton had
slowed down and moved into the right lane. Chad testified that they did not accelerate
to catch up with Horton: he had slowed down while they had accelerated to get back
up to the speed limit. Chad admitted that if they had “maintained the same speed as
Mr. Horton did, then [they] never would have caught him.” He also testified that they
“sped up to the speed limit and [that they] ended up catching up with him.” He
further admitted:
Q. . . . . So y’all, in fact, pursued him and caught him, correct? A. We caught up next to him, yes, sir. Q. And you drove up along the driver’s side of the 18-wheeler, right? A. Yes, sir. Chad denied that they had pursued Horton, again stating that they “eventually caught
up with him.”
17 According to Chad, Horton was slowing down and as they were passing him,
“[a]t this time, out of fear, [Windham] displayed his weapon.” Chad admitted that
Horton did not take any “aggressive movement” toward them or their vehicle when
their pickup came up along Horton’s driver’s side. Chad further admitted that other
than the incident with the red truck, which he viewed as aggressive, Horton did not
have any aggression toward the family in the pickup “[a]t [any] other time.”
Chad denied that his father pointed the gun at anybody, stating that his father
just “shook it.” Chad also denied that his father had leaned over him, put the gun
across his face, or pointed the gun. When he was asked, “Your dad reached into the
center console of the pickup truck and brandished [the gun], didn’t he?” Chad
answered: “He displayed his weapon, yes, sir.” Chad had no recollection of his
father’s throwing an iPad, “flip[ping] the bird,” shaking his fist, or yelling profanities
at Horton.
According to Chad, Horton then slowed down and started to veer back but
continued to follow them. Chad agreed that his father was trying to avoid “two black
semis” that were following them but admitted that Horton did not attempt to
overtake them and that it was “very possible” Horton was trying to get home. Chad
further testified that Horton did not pull over and was not showing any fear or
backing down. Chad answered yes when asked (1) if Horton had continued “to
pursue” the pickup and (2) if he was then “in fear for [his] safety.”
18 Although Windham had asked Chad to call the police, Chad testified that he
could not because he was “in shock” and “terrified” and “[n]othing was working.”
Chad further testified that they were in “heavy traffic” and that he did not notice any
exits from the highway that would be easy to take with a big pickup pulling a huge
boat. According to Chad, it was not easy for Windham to change lanes while hauling
the boat; the boat would fishtail if they went above sixty-five or seventy miles per
hour. Chad did not notice any rest stops on his side of the highway, and the shoulder
was not wide enough to pull the pickup and boat off the road. He could not recall if
there were other places to pull over and call the police.
Chad admitted that he did not tell the officers that his father had a gun; the
deputies had recovered the gun as soon as they pulled them over. Chad also admitted
that neither he nor his father told the police the truth. Chad said that when his father
told him not to “be fuzzy,” he was talking about “when he produced that pistol and
threatened Mr. Horton with it.”
Chad said that when he got home, he told his mother about his father’s
displaying the weapon. His father called from jail later that day. The trial court
admitted the recording of the call into evidence. In that call, Windham asked his wife
whether Chad and Chance had told her what had happened, and she responded, “You
. . . lost your temper and showed [the] gun.” Windham replied, “Yeah. . . . I mean the
guy tried to kill us.” When speaking to his other son Chance, Windham said, “I
messed up.” Chad, on the other hand, did not think that his father had messed up.
19 7. Windham
Windham testified that on the flyover, he was in the middle of three lanes (lane
2) and that Horton’s tractor-trailer was in lane 1. Windham changed into lane 1 in
front of Horton’s tractor-trailer, passed a slower automobile, and then moved back
into lane 2. Windham then saw Horton’s tractor-trailer accelerating and coming over;
a red truck was in the far-right lane (lane 3). Windham’s pickup “touch[ed]” the red
truck; Windham claimed that Horton “drove us all the way over there and [that he,
Windham,] did a remarkable job of not tearing that highway up with everybody out
there.” Windham testified that there was also a second semi-truck behind him during
this incident with the red truck but that he had no reason to believe that it was
Williams’s tractor-trailer:
Q. All right. So [Horton] slowed down? A. Yes. We all slowed down, all three of us, even the red truck. . . . . And there was also a truck behind me. Q. A semi truck behind you? A. Yes, sir. Q. So you were kind of boxed in where nobody could see you? A. Correct. According to Windham, the red truck exited the highway, and Horton then
went back to the middle lane. At that point, the highway went down to two lanes, and
Horton was in front of him. Horton had slowed down to about forty miles per hour.
20 Next, Windham slowed down and moved to the far-left lane (lane 1).
According to Windham, both he and Horton sped up initially, but Horton slowed
down when they reached a point in the road where there was a guardrail to
Windham’s left:
Q. [Both of you] are speeding back up? A. Yes. And then we got to about 60 miles per hour and he slows down. He’s coming back now, again. And there’s a guard rail. Q. A guard rail on your – your left? A. Yes. Q. All right. A. There’s no shoulder and a guard rail there. Q. All right. Did that concern you? A. I thought here he’s – he’s coming again. Q. He’d already tried to push you off – A. He’d already damn near killed all three of us. .... Q. . . . . So tell me why you were concerned about the guard rail on your left. A. I had no place to go. It’s just gonna be a big mess. Q. And you thought he was coming up to – A. He’d already done it once. Q. Okay. Were you in fear for your life? A. Yes, sir. Q. Were you in fear for your children’s lives?
21 A. I was in fear for them first. Q. All right. So what did you do? A. Uh, I grabbed my gun out of the console and held it between my boy’s legs, like this. I didn’t – I didn’t grip it. I had it between these three fingers and my thumb, and I shook it like that. (Gesturing) Q. Did you ever point it at him? A. I did not point that gun at that man. ....
Q. Okay. Why did you show the gun to him? A. I wanted him to know that I could protect me and my – my family and my property. Q. Were you trying to – Were you making a statement? A. I was wanting him to go away and leave us alone. He was in road rage, and he was driving that truck dangerously for all of us. Q. So what happened then? A. He slowed down and continued to stay behind me from then on. In further explanation of this incident, Windham testified that after he resumed
driving the speed limit, Horton slowed and was “coming back at [him], and [the
pickup was] up against the guard rail.” Windham added, “He slowed down, took a
look. . . . I thought he was coming at us again, but he wanted to see how big our eyes
were. That’s how he looked.”
Windham said that when he produced the gun, he was between Horton and a
guardrail and was still in fear for his safety. Windham felt justified in producing and
22 displaying the gun because he had done so in self-defense. However, he denied
“us[ing] a firearm to intimidate and threaten another human being” on the day at
issue.
Windham also admitted that Horton took no aggressive action toward him
after he produced the gun, that he “never saw two big black trucks bearing down on
[him] the whole time,” and that he had lied to Trooper Wolf about not having
displayed a weapon.
Windham testified that he did not notice any places to exit from the highway
that he could have taken easily but that he was just watching Horton’s tractor-trailer.
The shoulder was not wide enough to pull the boat over. Horton’s tractor-trailer was
bigger than Windham’s pickup, and Windham could not easily accelerate with the
boat.
According to Windham, when he told Chance that he had “messed up,” he
meant that he had messed up by not calling 911 because that was the reason Trooper
Wolf gave for arresting him.
C. Discussion
Windham asserts that this evidence is insufficient to prove beyond a reasonable
doubt that he committed aggravated assault with a deadly weapon because he merely
displayed the gun and never pointed it at Horton and because Horton was not actually
threatened by his actions. Windham’s arguments invite us to view the evidence in the
23 light most favorable to the defensive evidence, contrary to the prescribed standard of
review. Therefore, neither argument is persuasive.
1. No material variance
Windham challenges whether the evidence shows that he pointed the gun at
Horton, as alleged in the indictment. According to Windham, the evidence does not
prove that he actually pointed the gun at Horton; therefore, there is a material
variance between the allegations in the indictment and the proof at trial, rendering the
evidence insufficient. See Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001)
(holding that evidence presented at trial that varies from indictment’s wording will not
support conviction if the variance is material and prejudices defendant’s substantial
rights).
Horton testified that Windham pointed the gun at him and that he was looking
down the barrel of the gun, which was “pointing up at [him] from inside the” pickup.
Dash-cam video showed Horton demonstrating shortly after the incident how
Windham had displayed the weapon; Horton’s arm was extended directly from the
shoulder in a pointing motion.
Although Windham challenges on appeal how reasonable it was for a jury to
believe that Horton could have actually seen into the pickup, Horton testified at trial
that his seat rode higher than the seats in the pickup and that he was elevated.
Windham offered no explanation at trial as to how Horton could have accurately
described to the 911 operator that the gun was a “black-blue revolver” before the
24 officers stopped Windham and found the weapon. The jury was free to believe or
disbelieve any or all aspects of Horton’s and Windham’s version of events. See Jackson,
443 U.S. at 319, 99 S. Ct. at 2789; Queeman, 520 S.W.3d at 622. Therefore, the jury was
not required to believe Windham’s testimony that he merely produced the gun and
held it so that Horton could see it.
The evidence was sufficient to support a finding that Windham pointed the
gun at Horton; thus, there is no material variance between the indictment and the
proof at trial. See, e.g., Alexander v. State, No. 02-18-00070-CR, 2019 WL 4048864, at
*4 (Tex. App.—Fort Worth Aug. 28, 2019, no pet.) (mem. op., not designated for
publication) (determining that conviction was not infirm for lack of sufficient
evidence under Jackson when evidence at trial and wording of indictment did not vary).
2. Evidence that Horton perceived threat To support his argument that he did not threaten Horton with imminent bodily
injury, Windham focuses on the trial testimony and dash-cam footage showing that
Horton had told Trooper Wolf shortly after the incident that he felt “pissed” but did
not “figure [Windham] was going to shoot.” Citing no authority, Windham argues that
an “essential element [of aggravated assault with a deadly weapon by threat] is that the
[c]omplainant feared imminent bodily injury.” He then argues that it was impossible
that Horton “could have interpreted [Windham’s] actions in . . . a manner as would
under the circumstances portend an immediate threat of danger to a person of
reasonable sensibility” and that Horton was “neither fearful nor ‘threatened.’”
25 Although Section 22.01(a)(2) “does not explicitly indicate whether the intended
victim must perceive or receive the threat” and although the Court of Criminal
Appeals has not affirmatively interpreted Section 22.01(a)(2) as requiring that a victim
perceive the threat, neither has it expressly held that the statute does not require such
a perception. Olivas v. State, 203 S.W.3d 341, 345, 349 (Tex. Crim. App. 2006); see
Boston v. State, 410 S.W.3d 321, 326 (Tex. Crim. App. 2013). Instead, it has broadly
defined the term perceive as “[t]o become aware of directly through the senses[,] . . .
[t]o take notice of[,] . . . [t]o achieve understanding of.” Boston, 410 S.W.3d at 326. In
so doing, it has held that the victim does not have to perceive the exact nature of the
threat and that varied types of evidence can prove the perception of a threat: evidence
that the victim feared he could be injured in some way, evidence that the victim
perceived an offense had occurred, and evidence of the defendant’s prior actions that
affected the victim’s state of mind at the time of the charged offense. See Boston,
410 S.W.3d at 327; Olivas, 203 S.W.3d at 350–51.
Here, viewed in the light most favorable to the verdict, the evidence showed
that Windham lost his temper, drove beside Horton on the tractor-trailer’s driver’s
side, and pointed his gun at Horton from inside the pickup. Horton testified that he
saw the barrel end of the gun and that it was Windham who was pointing the gun at
him. The gun was fully loaded when Trooper Wolf secured it. Windham himself
testified that he produced the gun to show that he could protect himself, his family,
26 and his property and so that Horton would “go away and leave [Windham and his
family] alone.”
Moreover, Horton did, in fact, testify that he felt threatened by Windham’s
actions and that he took steps to avoid being shot after he saw the gun; he leaned
back to avoid the potential line of fire and let Windham pass him. To the extent that
what Horton told the officers during the traffic stop––that he was simply angry about
Windham’s pointing the gun and that he did not think Windham would actually shoot
the gun––conflicts with his trial testimony that he felt threatened, the jury was entitled
to resolve any such conflict and determine which testimony to believe. See Murray,
457 S.W.3d at 448–49; Schmidt v. State, 232 S.W.3d 66, 68 (Tex. Crim. App. 2007).
We conclude that this evidence is sufficient for a rational jury to find beyond a
reasonable doubt that Windham threatened Horton with imminent bodily injury. 9 See
Tex. Penal Code Ann. § 22.01(a)(2); Olivas, 203 S.W.3d at 346–49. Thus, we hold that
the evidence is sufficient to prove beyond a reasonable doubt that Windham
9 In his second issue, Windham argues that we should render a judgment of acquittal because the evidence would have been insufficient if the trial court had given his requested defensive instructions. Although we may review the sufficiency of the jury’s rejection of self-defense when the trial court gives such an instruction, see Saxton v. State, 804 S.W.2d 910, 913–14 & n.8 (Tex. Crim. App. 1991), we question whether such a review is appropriate when the trial court has not given such an instruction, see Taylor v. State, No. 05-02-01178-CR, 2003 WL 21508785, at *3 (Tex. App.––Dallas July 1, 2003, no pet.) (not designated for publication). However, because the standard of review articulated in Saxton focuses on whether the State proved its case beyond a reasonable doubt despite the defensive evidence, thus incorporating a Jackson review, Windham would not be entitled to an acquittal based on our review of all the evidence in resolving his first issue. See Saxton, 804 S.W.2d at 914 (citing Jackson).
27 committed aggravated assault by threat with a deadly weapon. We overrule
Windham’s first and second issues. 10
IV. SELF-DEFENSE
In Windham’s third and fourth issues, he complains that the trial court
reversibly erred by denying his requested deadly-force and nondeadly-force self-
defense jury instructions under Penal Code Sections 9.04 and 9.32.
A. Standard of Review
Appellate review of error in a jury charge involves a two-step process. Trammell
v. State, 287 S.W.3d 336, 340 (Tex. App.—Fort Worth 2009, no pet.) (citing Abdnor v.
State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994)). Initially, we determine whether
error occurred; if so, we must then evaluate whether sufficient harm resulted from the
error to require reversal. Abdnor, 871 S.W.2d at 731–32. The standard of review for
jury-charge error depends on whether the error was preserved. Jordan v. State,
593 S.W.3d 340, 346 (Tex. Crim. App. 2020). Because Windham preserved his jury-
charge complaints by requesting instructions, we review any error for “some harm.”
Id.; see also Tex. Code Crim. Proc. Ann. art. 36.15; Francis v. State, 36 S.W.3d 121,
123 (Tex. Crim. App. 2000).
10 Because we conclude that the evidence is sufficient to support Windham’s conviction for aggravated assault, we do not reach Windham’s alternative argument that he was at most guilty of deadly conduct. See Tex. R. App. P. 47.1.
28 A defendant is entitled to a self-defense instruction when that defensive issue is
raised by the evidence, “whether that evidence is strong or weak, unimpeached or
contradicted, and regardless of what the trial court may think about the credibility of
the defense.” Gamino v. State, 537 S.W.3d 507, 510 (Tex. Crim. App. 2017). In
reviewing the denial of a requested self-defense instruction, we view the evidence in
the light most favorable to the requested submission to determine whether evidence
from any source will support the elements of the defense. Id.; see also Krajcovic v. State,
393 S.W.3d 282, 286 (Tex. Crim. App. 2013) (“[E]ven a minimum quantity of
evidence is sufficient to raise a defense as long as the evidence would support a
rational jury finding as to the defense.”).
B. Applicable Law on Self-defense
Under Section 9.31 of the Texas Penal Code, a person is justified in using
nondeadly force 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, except in the limited circumstances provided in Section 9.31(b).11 See
11 The only potentially applicable exception in Subsection (b) on the facts of this case is Section 9.31(b)(4), which provides that the threat of force against another is not justified if the actor provoked the other’s use or attempted use of unlawful force, unless (A) the actor abandons the encounter or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter and (B) the other nevertheless continues or attempts to use unlawful force against the actor. Tex. Penal Code Ann. § 9.31(b)(4). Neither Windham nor the State contends that the evidence suggests that Windham provoked any use or attempted use of unlawful force by Horton. Thus, we do not address the applicability of Section 9.31(b)(4).
29 Tex. Penal Code Ann. § 9.31(a); Gamino, 537 S.W.3d at 510. Similarly, under Penal
Code Section 9.32, a person is justified in using deadly force if he would be justified in
using force under Section 9.31 and he reasonably believes that deadly force is
immediately necessary to protect himself against another’s use or attempted use of
deadly force. See Tex. Penal Code Ann. § 9.32(a)(1)–(2)(A); Trammell, 287 S.W.3d at
341; see also Tex. Penal Code Ann. § 9.01(3) (defining “deadly force” as force
“intended or known by the actor to cause, or in the manner of its use or intended use
is capable of causing, death or serious bodily injury”). A “reasonable belief” is “a
belief that would be held by an ordinary and prudent man in the same circumstances
as the actor.” Tex. Penal Code Ann. § 1.07(a)(42).
Deadly-force self-defense may not apply to the tried facts even if a defendant is
charged with using or displaying a deadly weapon. Gamino, 537 S.W.3d at 510. That is
because under Penal Code Section 9.04, “a threat to cause death or serious bodily
injury by the production of a weapon or otherwise, as long as the actor’s purpose is
limited to creating an apprehension that he will use deadly force if necessary, does not
constitute the use of deadly force.” Tex. Penal Code Ann. § 9.04. Because Section
9.04 provides that “[t]he threat of force is justified when the use of force is justified
by [the self-defense] chapter” of the Penal Code, Section 9.04 is not a separate
statutory defense; it is incorporated into the law of self-defense. Gamino, 537 S.W.3d
at 510. Thus, even though Windham was charged with using a deadly weapon, if the
evidence presented at trial triggered the application of Section 9.04, he would be
30 entitled to an instruction on nondeadly force under Section 9.31, rather than an
instruction on deadly-force self-defense under Section 9.32. See id.
Windham requested self-defense instructions under Sections 9.04, 9.31, and
9.32. Therefore, to be entitled to a self-defense instruction, Windham was required to
present some evidence at trial triggering the application of Sections 9.04 and
9.31 (nondeadly force) or Section 9.32 (deadly force). See Gamino, 537 S.W.3d at 510.
In his brief, Windham focuses largely on the trial court’s refusal to give a
deadly-force self-defense instruction under Section 9.32, but in his fourth issue he also
argues that the evidence triggered Section 9.04. Because Section 9.04 is not a stand-
alone provision and incorporates Section 9.31 in the nondeadly-force context, we
construe Windham’s fourth issue as fairly including an argument that the trial court
erred by refusing his requested self-defense instruction under both Section 9.04 and
Section 9.31. See Tex. R. App. P. 38.1(f); see also Gamino, 537 S.W.3d at
511 n.17 (“Logically, therefore, if Section 9.04 is triggered by the evidence presented,
and if the defendant requests a self-defense instruction, then Section 9.04 and Section
9.31 would be the ‘law appliable to the case.’”). Accordingly, we first review whether
the trial court erred by denying Windham’s requested self-defense instruction under
Penal Code Sections 9.04 and 9.31. See Gamino, 537 S.W.3d at 510–11 (noting, as court
of appeals had held, that if “Section 9.04 applies, then the use of a gun does not
constitute ‘deadly force,’ and, therefore, [S]ection 9.32 would become inapplicable”
because “the use of the gun would, by default, be the use of ‘force’ in self[-]defense,
31 and [S]ection 9.31 would be the applicable provision” (quoting Gamino v. State,
480 S.W.3d 80, 87 (Tex. App.––Fort Worth 2015))).
C. Evidence Raised Self-defense Windham argues that the evidence shows (1) that he displayed the weapon only
to create an apprehension that he would use deadly force if necessary to protect
himself and (2) that he reasonably believed that such force was immediately necessary
to protect himself from Horton’s use or attempted use of unlawful force. According
to Windham, this evidence was sufficient to support submission of a self-defense
instruction. The State counters––as it did at trial––that “no evidence shows any
immediate necessity justifying Windham’s illegal act” and that Windham was not
entitled to the instruction because he did not confess to pointing the gun at Horton as
alleged in the indictment. We agree with Windham.
1. The confession-and-avoidance requirement
The State first contends that Windham was not entitled to a self-defense
instruction because he did not admit that he pointed a gun at Horton as alleged in the
indictment. Self-defense is a confession-and-avoidance defense; therefore, a defendant
“cannot both invoke self-defense and flatly deny the charged conduct.” Jordan,
593 S.W.3d at 343. However, an appellant is not required to admit the State’s version
of events and does not necessarily have to admit committing every element of the
offense. Gamino, 537 S.W.3d at 512. Moreover, even an equivocal admission can raise
a defense. See Juarez v. State, 308 S.W.3d 398, 405–06 (Tex. Crim. App. 2010); see also
32 Bufkin v. State, 207 S.W.3d 779, 781–82 (Tex. Crim. App. 2006) (noting that while “[i]t
is certainly true that the defendant cannot foist upon the State a crime the State did
not intend to prosecute in order to gain [a defensive] instruction,” nevertheless, “the
defendant has the right to controvert the facts upon which the prosecution intends to
rely, and that right includes claiming that the events unfolded in a way different than
the State has alleged”). Therefore, Windham was not required to specifically admit
that he pointed the firearm directly at Horton; instead, he was entitled to a Section
9.04 and 9.31 instruction
if there [was] some evidence, even if contradicted, that he believed the display of his gun was immediately necessary to protect himself against the victim’s use or attempted use of unlawful force, that his purpose in displaying his weapon was limited to creating an apprehension that he would use deadly force if necessary, and that his conduct was not in response to verbal provocation alone.
Gamino, 537 S.W.3d at 512.12
Windham testified that after the first incident where he alleged Horton had
tried to push his vehicle off the road that he thought Horton was “coming again.”
12 Isaacson v. State, an unpublished case from the Austin Court of Appeals, does not command a different result. No. 03-10-00866-CR, 2013 WL 1955799 (Tex. App.—Austin May 10, 2013, pet. ref’d) (mem. op., not designated for publication). The State points out that the way we distinguished Isaacson in our opinion in Gamino shows that the reasoning of Isaacson controls here. We do not agree because not only did Isaacson predate the Court of Criminal Appeals’s decision in Gamino––which did not discuss or rely upon our distinguishing Isaacson in the underlying opinion––the defendant in Isaacson was charged with aggravated assault on a public servant and admitted only to answering his front door while holding a gun by his side, pointed at the ground, without any knowledge that the people at his door were police officers. 2013 WL 1955799, at *3. Thus, Isaacson is distinguishable, and we do not find its reasoning persuasive.
33 This second time, Windham was driving in the left-hand lane with no shoulder on the
road to his left, only a guardrail. According to Windham, he perceived that Horton
was going to try to pin his pickup against the guardrail; if Horton had done so,
Windham would have “had no place to go,” and the result would have been “a big
mess.” Windham testified that, fearing for his life and the lives of his children, he
“grabbed [his] gun out of the console” and showed it to Horton. Windham explained
that his purpose in displaying the gun was to let Horton know that he could protect
himself, his family, and his property in the hope that Horton would “go away and
leave [them] alone.” And, again according to Windham, after he brandished the gun,
Horton “slowed down and continued to stay behind [him] from then on.”
While Windham denied committing an offense, he said his purpose in holding
the gun where Horton could see it was to prevent an offense. This defensive evidence is
some evidence that Windham believed it was immediately necessary to display his gun
to prevent Horton’s attempted use of force, that Windham showed the gun solely to
create the apprehension that he would use it if necessary, and that his use of the gun
was not solely in response to verbal provocation; thus, this evidence was sufficient to
satisfy the confession-and-avoidance prerequisite to obtaining a self-defense
instruction.13 See Gamino, 537 S.W.3d at 512–13.
13 Even if the jury believed Windham’s testimony only in part––if it rejected his testimony that he did not point the gun at Horton, believing that he did point the gun at Horton, but also believing Windham’s testimony that he did so only because he was afraid that Horton was attempting to pin him in between the tractor-trailer and the
34 2. Evidence regarding imminent harm disputed
Windham next argues that he was entitled to a self-defense instruction because
some evidence shows that he believed his display of the gun was immediately
necessary. The State argued at trial, and argues on appeal, that Windham’s conduct
could not have been immediately necessary to protect himself from imminent harm
because the evidence shows that after Windham and Chad claimed to have had the
near-collision with the red truck, Windham had ended up behind Horton in lane
2 and to reach Horton’s driver’s side window had to have deliberately moved into the
left lane and accelerated. Therefore, the State contends that Windham could have
avoided the next encounter––in which Windham drove up beside the driver’s side of
Horton’s tractor-trailer on the left and either pointed or displayed the gun––altogether
by simply remaining behind Horton and letting him get ahead or exiting the highway.
At trial, the State cited this court’s Trammell opinion as controlling on this point, and
the trial court agreed. 287 S.W.3d at 340–42.
“[I]imminent harm is harm that is ready to take place—harm that is coming in
the very near future. Logically, then, if conduct is ‘immediately necessary’ to avoid
harm that is imminent, that conduct is needed right now.” Henley v. State, 493 S.W.3d
77, 89 (Tex. Crim. App. 2016). Thus, in the self-defense context, “force that is
‘immediately necessary’ to protect oneself or another from a person’s use of unlawful
guardrail––the jury could find that Windham was acting in self-defense under Sections 9.04 and 9.31.
35 force is force that is needed at that moment––‘when a split[-]second decision is
required.’” Id. at 90 (quoting Smith v. State, 874 S.W.2d 269, 273 (Tex. App.—Houston
[14th Dist.] 1994, pet. ref’d), abrogated on other grounds by Clewis v. State, 922 S.W.2d
126 (Tex. Crim. App. 1996)).
In Trammell, an aggravated assault case, several hours had passed between the
complainant’s threatening the appellant with a knife and the appellant’s shooting the
complainant. 287 S.W.3d at 337–38. The appellant had left the scene after the knife
incident, only to return hours later to sit in a parked car in front of the complainant’s
home. Id. at 337. While sitting in the parked car, appellant shot the complainant after
the complainant had driven over to appellant’s car and spoken to him through the
open windows. Id. at 337–39, 341. There was no evidence that the complainant had
threatened the appellant physically after the complainant came out of his house and
before the appellant shot him. Id. at 337–38, 341. We therefore rejected the appellant’s
argument that he was entitled to a self-defense instruction because the “appellant
could have simply driven away from the scene; shooting the gun was not an
immediately necessary response.” Id. at 341.
Here, though, there is some evidence that Windham believed Horton was
threatening him and his sons with imminent bodily injury––trying to pin their pickup
against a guardrail while driving at high speed––when Windham pulled out his gun.
However, the State claims that the evidence is undisputed that Windham, like the
36 defendant in Trammell, could have avoided the situation altogether by not driving past
Horton. The evidence is not undisputed on this point, though.
Windham testified that he and Horton were driving in rush-hour traffic and
that it was difficult to maneuver the pickup with the boat attached. After the near-
collision, Horton and Windham both accelerated back to about sixty miles per hour.
Although Windham was in the left lane and Horton in lane 2, Horton was ahead of
Windham. While the State and trial judge both characterized the evidence as showing
only that Windham had sped up to reach Horton’s tractor-trailer, that evidence came
from Horton alone. Chad and Windham both testified that Horton slowed his tractor-
trailer, thus causing Windham to pull even with the tractor-trailer, and Windham
testified that Horton’s slowing down, combined with his prior action in forcing
Windham’s pickup into the red truck, caused Windham to think that Horton was
going to try to pin the pickup between the tractor-trailer and the guardrail. Thus, not
only was the evidence about how Windham and Horton ended up next to each other
disputed, contrary to the State’s argument, the State’s position ignores that we are to
view the evidence––whether it is contradictory or weak––in the light most favorable
to Windham in determining whether the trial court should have given an instruction.
See Gamino, 537 S.W.3d at 510.
37 The facts in this case are distinguishable from the facts in Trammell.14 Windham
and Horton were both driving large vehicles through rush-hour traffic. There is some
evidence that Windham, perceiving that the threat of being pushed off the road had
ended, attempted to drive in the flow of traffic, albeit in a different lane from Horton,
but that after Windham could no longer take effective evasive action, Horton slowed
down so that he was even with Windham, which in light of Horton’s prior actions
Windham perceived as a threat to pin him against the guardrail. Whether Windham’s
moving into the left lane (where he could be put in the defensive position he claimed
he was in) and his belief that Horton was attempting to use unlawful force against him
were reasonable under the circumstances is a fact question for the jury to decide and
not a preliminary question for the trial court to resolve when determining whether the
defense was raised. See Gamino, 480 S.W.3d at 90.
Viewing the evidence in the light most favorable to Windham, there is some
evidence that the above-described circumstances imposed a threat of bodily harm to
14 Three of the cases cited by the State are factually distinguishable because in those cases, there was no evidence that the complainants were doing anything to threaten the appellants or third persons with imminent harm when the appellants used the force at issue. See Henley, 493 S.W.3d at 89–90; Graves v. State, 452 S.W.3d 907, 911–12 (Tex. App.—Texarkana 2014, pet. ref’d); McBride v. State, 359 S.W.3d 683, 694–95 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). Two of the cases are procedurally distinguishable because the trial court did include a self-defense instruction, and the focus on appeal was whether the evidence nevertheless supported the jury’s verdict. See Hernandez v. State, No. 04-18-00217-CR, 2019 WL 1547493, at *1–2, *4 (Tex. App.—San Antonio Apr. 10, 2019, no pet.) (mem. op., not designated for publication); Guerrero v. State, No. 14-13-00880-CR, 2014 WL 3955157, at *1– 2 (Tex. App.—Houston [14th Dist.] Aug. 14, 2014, pet. ref’d) (mem. op., not designated for publication).
38 Windham that was “ready to take place, near at hand, impending, hanging
threateningly over [his] head, [or] menacingly near.” See Henley, 493 S.W.3d at 89.
Accordingly, the trial court erred by refusing Windham’s Section 9.04 and 9.31 self-
defense instructions.
D. Some Harm When, as in this case, a defendant preserves a charge-error complaint, the error
requires reversal if the error caused “some harm,” meaning it was “calculated to injure
the rights of [the] defendant.” See Tex. Code Crim. Proc. Ann. art. 36.19; Abdnor,
871 S.W.2d at 732; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op.
on reh’g); see also Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). “Some
harm” means “any harm, regardless of degree,” Arline v. State, 721 S.W.2d 348,
351 (Tex. Crim. App. 1986), but it also means “actual harm and not merely a
theoretical complaint,” Jordan, 593 S.W.3d at 347; Arline, 721 S.W.2d at 351. To assess
harm, we must evaluate the whole record, including the jury charge, contested issues,
weight of the probative evidence, arguments of counsel, and other relevant
information. Jordan, 593 S.W.3d at 347.
We conclude that the record in this case demonstrates some harm. Windham
testified that he showed the gun to Horton to make Horton leave him and his sons
alone. Although the jury had to decide which version of events to believe––Horton’s
or Windham’s––even if it had believed Windham’s version it could have convicted
him under the jury charge it received. Windham’s entire defense was built around his
39 justification based on self-defense and defense of his sons; he set out this theme as
early as his opening statement. See Gamino, 480 S.W.3d at 91 (“Under the charge given
to the jury, Appellant lost under both versions because Appellant’s use of a gun
constituted the unwarranted use of deadly force. Nothing in the charge provided that
Appellant’s conduct might have been justified or excused for any reason.”). In closing
argument, the State asserted that there was no dispute that Windham purposefully
picked up the gun and emphasized that Windham did what he did because he was
angry; in other words, he had no excuse. Accordingly, we hold that Windham suffered
some harm, and we sustain his fourth issue. We need not reach his third and fifth
issues. See Tex. R. App. P. 47.1; Gamino, 480 S.W.3d at 92.
V. CONCLUSION
Having overruled Windham’s first and second issues and having sustained his
fourth issue, we reverse the trial court’s judgment and remand this case for a new trial.
See Arteaga v. State, 521 S.W.3d 329, 340 (Tex. Crim. App. 2017) (“The normative
remedy for harmful jury charge error is to reverse the convictions and remand for a
new trial.”).
40 /s/ Mike Wallach Mike Wallach Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: February 4, 2021
Joe Pearl Windham v. State (Joe Pearl Windham v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.