NUMBER 13-10-579-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOSE ANGEL BANDA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 197th District Court of Cameron County, Texas.
MEMORANDUM OPINION Before Justices Rodriguez, Vela, and Perkes Memorandum Opinion by Justice Vela A jury convicted appellant, Jose Angel Banda, of the first-degree felony offense of
aggravated assault with a deadly weapon in retaliation against a person who had
reported the occurrence of a crime. See TEX. PENAL CODE ANN. § 22.02(a)(2), (b)(2)(C)
(West Supp. 2010). The trial court assessed punishment at thirty-five years'
imprisonment. In five issues, appellant asserts: (1) the evidence is insufficient to
support his conviction; (2) the trial court abused its discretion by failing to grant a mistrial; (3) the prosecutor made improper remarks during closing argument; (4) the trial court
erred by failing to include a lesser-included-offense instruction; and (5) the trial court
erred by failing to charge the jury on self defense. We affirm.
I. FACTUAL BACKGROUND
On May 31, 2009, Bill Nored lived in a trailer park in Brownsville. That day,
appellant, whose trailer was "right across" from Nored's trailer, said he was "having
problems" with his girlfriend. Later, Nored heard fighting and a woman whimpering,
coming from inside appellant's trailer. He went to appellant's trailer and told him that if he
did not stop "beating up on her," he was going to call the police. Appellant dared him to
make the call, and Nored testified appellant watched him call the police.
When the police arrived, they handcuffed appellant, escorted his girlfriend from the
trailer, and then released him. Shortly after the police left, appellant, who was at his
trailer, called Nored some names and told him to step over to his yard. Nored refused,
and after appellant entered into his trailer, Nored went to visit a neighbor, Jimmy Adams.
Nored testified that while he was in Adams's yard, appellant "ran up with the sickle
weapon." When the prosecutor asked Nored, "[W]hat, if anything, did he do when he
had that sickle in his hand?," he said:
[H]e ran up and I tried to dissuade him from fighting because I had an extension bar, because I knew he was going to attack me, but I was in the other guy's yard. And he ran up into the yard with a sickle and said he was going to teach me a lesson.
When the prosecutor asked Nored, "[Y]ou are saying the defendant then comes
with this sickle in his hand, what, if anything, is he saying?", Nored said, "Some profanities
and then he's going to teach me a lesson. He has a weapon that can take my life . . . ."
2 Nored told appellant that if he came any closer he was going to hit him with the extension
pole.1 When Nored was asked if appellant was swinging the sickle at him, he said,
"[H]e's got it raised as he's making his charge. So I hit him with the extension pole when
he was coming up close to me with that . . . ." Nored stated that when he hit appellant
with the pole, appellant was still trying to use the sickle on him. Nored and appellant
"wrestled around" for three or four minutes until Nored took the sickle "away from him
after he cut some parts of my arm with it." Nored threw the sickle away and then let
appellant go. Appellant picked it up and went back to his trailer. The sickle was never
recovered.
On cross-examination, when defense counsel asked Nored if he had struck
appellant on the head with "a metal pole," he said, "I did, after he attacked me with a
sickle." He stated that "I had gone two trailers over to his [Jimmy Adams's] house.
That's when he [appellant] came running over . . . wielding the sickle in his hand in the
yard of Jimmy Adams." Nored testified he grabbed the blade of the sickle "because I
didn't want him cutting my throat, cutting my hand off, so I took it away from him." When
defense counsel asked him, "In your statement [to the police] do you state that you struck
him [appellant] on the head?", he said, "[A]t first on the side when he attacked me at first.
. . . I thought I hit his head with the extension [pole] to try to get him to let go of the
sickle." Nored stated he did not harm appellant after he took the sickle from him.
Jimmy Adams testified that at the time in question, Nored was at his (Adams's)
trailer, and appellant was at his own trailer. Adams saw appellant, who was carrying a
sickle in his hand, "running from his trailer . . . straight after us." He stated appellant 1 Bill Nored testified that the extension pole was made of metal and that it was used for painting. 3 "threatened Bill [Nored]." When the prosecutor asked Adams, "How would he [appellant]
threaten him?", he said, "He was going to kill him." He stated that appellant "attacked"
Nored and that both men got "into a little fight." After subduing appellant, Nored threw
the sickle behind Adams. However, appellant retrieved it and went home. When the
prosecutor asked Adams, "Did you see if the defendant was swinging this sickle at Bill
[Nored]?", he said, "Yes, sir, he was." According to Adams, appellant said, "I'm going to
kill you." He testified that Nored used the extension pole to take the sickle away from
appellant.
On cross-examination, when defense counsel asked Adams, "So you don't
disagree that Mr. Nored had a deadly weapon [the extension pole] in his hands and was
instigating a physical altercation with Mr. Banda, right?", he said, "I feel he [Nored] was
just defending himself." He said Nored arrived at his (Adams's) trailer with the extension
pole.
Jorge Cruz, who also lived in the trailer park, testified that on the day in question,
he called the police because he saw that appellant had a weapon. When the prosecutor
asked Cruz, "But you saw Mr. Banda coming with that sickle, that instrument, toward Mr.
Nored and Mr. Jimmy Adams?", he said, "He had it in his hand and he was running." On
cross-examination, when defense counsel asked Cruz, "[Y]our testimony is that what you
observed was just Mr. Banda running towards Mr. Nored with a weapon in his hand?", he
said, "Yes."
Officer Jesus Olvera testified that on the date in question, he was dispatched to the
trailer park. When the prosecutor asked him, "You were dispatched in reference to what
4 type of offense?", he said, "An aggravated assault . . . ." When asked, "[W]hat made it
aggravated?", he said, "The victim said he was attacked with a sickle." He said the
alleged victim was Bill Nored.
Appellant did not testify at the guilt-innocence phase of his trial, and the defense
did not call any witnesses on his behalf.
II. DISCUSSION
A. Sufficiency of the Evidence
In issue one, appellant challenges the sufficiency of the evidence to support his
conviction.
1. Standard of Review
"When reviewing a case for legal sufficiency, we view all of the evidence in the light
most favorable to the verdict and determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt." Winfrey v. State,
323 S.W.3d 875, 878–79 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307,
319 (1979)). "Consequently, we 'determine whether the necessary inferences are
reasonable based upon the combined and cumulative force of all the evidence when
viewed in the light most favorable to the verdict.'" Id. at 879 (quoting Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing Hooper v. State, 214 S.W.3d 9,
16–17 (Tex. Crim. App. 2007)). "It has been said, quite appropriately, that '[t]he
appellate scales are supposed to be weighted in favor of upholding a trial court's
judgment of conviction, and this weighting includes, for example, the highly deferential
standard of review for legal-sufficiency claims.'" Id. (quoting Haynes v. State, 273
5 S.W.3d 183, 195 (Tex. Crim. App. 2008) (Keller J., dissenting) (citing Jackson, 443 U.S.
at 319)). "We must therefore determine whether the evidence presented to the jury,
viewed in the light most favorable to the verdict, proves beyond a reasonable doubt that
appellant" committed the crime for which the jury found him guilty. See id. "It is the
obligation and responsibility of appellate courts 'to ensure that the evidence presented
actually supports a conclusion that the defendant committed the crime that was charged.'"
Id. at 882 (quoting Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)).
"Furthermore, '[i]f the evidence at trial raises only a suspicion of guilt, even a strong one,
then that evidence is insufficient [to convict].'" Id. (quoting Urbano v. State, 837 S.W.2d
114, 116 (Tex. Crim. App. 1992)), superseded in part on other grounds, Herrin v. State,
125 S.W.3d 436, 443 (Tex. Crim. App. 2002).
In this case, the indictment alleged, in relevant part, that appellant:
intentionally, knowingly, or recklessly cause[d] bodily injury to BILL NORED by wrestling with BILL NORED and/or charging towards BILL NORED, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a sickle or other unknown object to the Grand Jury, during the commission of said assault, and the defendant was then and there acting in retaliation against or on account of the service by BILL NORED as a person who had reported the occurrence of a crime . . . .
2. Applicable Law
a. Assault Under Section 22.01 of the Texas Penal Code
The Texas Legislature has defined the crime of assault in section 22.01 of the
penal code. Subsection (a) of that provision sets out three separate assaultive crimes,
one of which is relevant to this case: ―(a) A person commits an offense if the person:
(1) Intentionally, knowingly, or recklessly causes bodily injury to another . . . .‖ TEX.
6 PENAL CODE ANN. § 22.01(a)(1). ―'Bodily injury' means physical pain, illness, or any
impairment of physical condition.‖ Id. § 1.07(a)(8) (West Supp. 2010).
The evidence showed that after appellant charged at Nored with the sickle, they
"wrestled around" for three or four minutes. Nored testified that while doing so, he
"skinned up" his knees and "hurt my knee against the steps of the trailer." He also
testified appellant cut his (Nored's) arm with the sickle. Thus, a rational jury could
reasonably conclude that Nored suffered bodily injury by hurting his knee and receiving a
cut from the sickle, which caused him physical pain. See id. In addition, a rational jury
could reasonably conclude appellant intentionally, knowingly, or recklessly caused bodily
injury to Nored by charging at him and wrestling with him.
b. Aggravated Assault Under Section 22.02 of the Texas Penal Code
Section 22.02 of the penal code defines the crime of aggravated assault as being
an assault under section 22.01, and the person ―(1) causes serious bodily injury to
another, including the person‘s spouse; or (2) uses or exhibits a deadly weapon during
the commission of the assault.‖ Id. § 22.02(a)(1), (2). Thus, ―the use of a deadly
weapon may act as an aggravating factor for ‗bodily injury‘ assault under Section
22.01(a)(1), . . . .‖ Landrian v. State, 268 S.W.3d 532, 536 (Tex. Crim. App. 2008).
"'Deadly weapon' means: . . . (B) anything that in the manner of its use or intended
use is capable of causing death or serious bodily injury." TEX. PENAL CODE ANN. §
1.07(a)(17)(B). Because a sickle is not a deadly weapon per se, the State was required
to prove that, in the manner of its use or intended use, the sickle used by appellant was
capable of causing death or serious bodily injury. See id.
7 In Bailey v. State, 38 S.W.3d 157 (Tex. Crim. App. 2001), the court explained
section 1.07(a)(17)(B) by saying:
The statute does not say "anything that in the manner of its use or intended use causes death or serious bodily injury." Instead the statute provides that a deadly weapon is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." § 1.07(a)(17)(B) (emphasis added). The provision's plain language does not require that the actor actually intended death or serious bodily injury; an object is a deadly weapon if the actor intends a use of the object in which it could be capable of causing death or serious bodily injury. The placement of the word "capable" in the provision enables the statute to cover conduct that threatens deadly force, even if the actor has no intention of actually using deadly force.
Id. at 158–59 (quoting McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000))
(citations and footnote omitted).
In light of the holdings in Bailey and McCain, we must determine if appellant
intended a use of the sickle in which it could be capable of causing death or serious bodily
injury. See id. The evidence showed that appellant ran from his trailer to Adams's
trailer, wielding a sickle. With the sickle raised in his hand, he charged at Nored.
Appellant said some profanities and stated he was going to teach Nored a lesson. Even
though Nored hit appellant with the extension pole, appellant was still trying to use the
sickle on him, and he cut Nored's arm with it. Thus, a rational jury could have reasonably
concluded appellant intended a use of the sickle in which it could be capable of causing
death or serious bodily injury.
Next, we consider whether there is sufficient evidence to show the sickle was
capable of causing death or serious bodily injury. Because appellant was convicted of
aggravated assault by use of a deadly weapon, not by causing serious bodily injury, we
8 focus our analysis on whether the sickle was capable of causing death or serious bodily
injury and not whether it caused serious bodily injury. The Texas Court of Criminal
Appeals has approved several factors to be used in determining whether an object is
capable of causing death or serious bodily injury: (1) physical proximity between the
victim and the object, Tisdale v. State, 686 S.W.2d 110, 115 (Tex. Crim. App. 1984); (2)
the threats or words used by the defendant, Williams v. State, 575 S.W.2d 30, 32 (Tex.
Crim. App. 1979); (3) the size and shape of the weapon, Blain v. State, 647 S.W.2d 293,
294 (Tex. Crim. App. 1983); (4) the weapon's ability to inflict death or serious bodily injury,
Id.; and (5) the manner in which the defendant used the weapon. Id. No one factor is
determinative, and each case must be examined on its own facts. See Brown v. State,
716 S.W.2d 939, 946–47 (Tex. Crim. App. 1986). Either expert testimony or lay
testimony may be sufficient to support a finding. English v. State, 647 S.W.2d 667,
668–69 (Tex. Crim. App. 1983). Introducing the weapon in evidence helps the jury, but
the jury may determine the weapon was capable of causing death or serious bodily injury
even if it is not in evidence. Id. at 669.
The evidence showed appellant had the sickle raised in his hand when he charged
at Nored. He threatened Nored with physical harm by telling him he was going to teach
him a lesson. Nored testified that during the attack, his arm was cut by the sickle. He
described the sickle "as a weapon that can take my life. . . ." In addition, he stated that it
had a short, wooden handle and "that it didn't have a point, it was flat, but it still was
designed like the old kind that we used to cut weeds or wheat with by hand, . . . ."
Considering (1) the close proximity between appellant and Nored, (2) the violent manner
9 in which he attacked Nored, (3) the sickle's design, (4) Nored's testimony that the sickle
cut him on the arm, and (5) Nored's testimony describing the sickle "as a weapon that can
take my life," a rational jury could have reasonably concluded that appellant used a
deadly weapon, because he intended to use the sickle in such a manner that it was
capable of causing death or serious bodily injury to Nored.
Lastly, we address whether appellant committed the offense in retaliation against
Nored because he reported the occurrence of a crime. See TEX. PENAL CODE ANN. §
22.02(a)(2), (b)(2)(C). Nored testified he heard fighting and a woman whimpering inside
appellant's trailer. He told appellant if he did not stop beating the women, he was going
to call the police. Appellant saw Nored call the police, and when they left the scene,
appellant took a sickle, charged at Nored, and told Nored he was going to teach him a
lesson. Appellant attacked Nored with the sickle, and both men "wrestled around" for
three or four minutes before Nored disarmed him. Thus, a rational jury could have
reasonably concluded that (1) Nored reported a crime to the police, (2) that appellant was
involved in the crime, (3) appellant saw him call the police, and (4) appellant charged at
Nored, saying he was going to teach him a lesson. Thus, a rational jury could have
reasonably concluded that appellant assaulted Nored with a deadly weapon in retaliation
against a person who had reported the occurrence of a crime.
After viewing all of the evidence in the light most favorable to the verdict, we hold
that the evidence is legally sufficient to prove beyond a reasonable doubt that appellant
committed the offense of aggravated assault with a deadly weapon in retaliation against a
person who has reported the occurrence of a crime. Issue one is overruled.
10 B. Motion for Mistrial
In issue two, appellant contends the trial court abused its discretion by refusing to
grant a mistrial.
1. Background
During the guilt-innocence phase, the prosecutor, on direct-examination, asked
the victim, Bill Nored, about what the woman who was inside appellant's trailer told the
police after they arrived at appellant's trailer:
Prosecutor: Did you hear this woman say anything to the police officer?
Defense Counsel: Your Honor, I'm going to object as to hearsay.
The Court: Overruled.
Mr. Nored: They took her away, it was obvious he had been beating up on her, for her safety.
Prosecutor: Okay.
Defense Counsel: Your Honor—
Prosecutor: That's not my question.
Defense Counsel: —again, I'm going to object. It's not responsive and he's speculating, Judge. I ask—
The Court: Sustained.
Defense Counsel: Can I get an instruction that the jury disregard that statement?
The Court: You will have to disregard it.
Defense Counsel: I ask for a mistrial, Judge.
The trial court denied the motion for mistrial.
11 2. Standard of Review
"A mistrial is the trial court's remedy for improper conduct that is 'so prejudicial that
expenditure of further time and expense would be wasteful and futile.'" Hawkins v. State,
135 S.W.3d 72, 77 (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)).
"In effect, the trial court conducts an appellate function: determining whether improper
conduct is so harmful that the case must be redone." Id. "Only in extreme
circumstances, where the prejudice is incurable, will a mistrial be required." Id. (citing
Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003)). To determine whether
a trial court abused its discretion in denying a defendant's motion for a mistrial, we
consider three factors: (1) the severity of the misconduct; (2) the measures adopted to
cure the misconduct (the efficacy of any cautionary instruction by the trial court); and (3)
the certainty of conviction absent the misconduct (the strength of the evidence supporting
the conviction). Archie v. State, 221 S.W.3d 695, 699–700 (Tex. Crim. App. 2007) (citing
Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim. App. 2004)).2
a. First Factor—Severity of the Misconduct
Prejudice is the touchstone of the first factor. Hawkins, 135 S.W.3d at 77.
"[P]articularly offensive or outrageous conduct generally gives rise to a natural inference
of prejudice and can be considered as such, even when prejudice is not otherwise
apparent from the record." Id. In this case, Nored, referring to the woman inside
appellant's trailer, testified appellant "had been beating up on her . . . ." A rational juror
2 See Cortez v. State, No. AP-76101, 2011 WL 4088105, at *19 (Tex. Crim. App. Sept 14, 2011) (not designated for publication) (applying the Archie factors to analyze whether the trial court correctly denied a motion for mistrial regarding the admission of an extraneous offense through testimony of a witness). 12 could understand this comment to mean that appellant had assaulted the woman.
However, any prejudicial effect of Nored's remark was minimal, because it was based on
facts in the record. In addition, the State did not try to interject specific, unsupported
facts about appellant or expressly accuse him of illegal activity unrelated to the facts
leading up to the aggravated assault on Nored.
b. Second Factor—Curative Measures
When defense counsel asked the trial court for "an instruction that the jury
disregard that statement," the trial court complied by saying, "You will have to disregard
it." We assume the jury followed the trial court's instruction to disregard. See Gardner
v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987) (stating there is a presumption that
jurors will follow instructions to disregard as well as other cautionary instructions); see
also Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004) (stating, "[a] grant of a
motion for mistrial should be reserved for those cases in which an objection could not
have prevented, and instruction to disregard could not cure, the prejudice stemming from
an event at trial–i.e., where an instruction would not leave the jury in an acceptable state
to continue the trial."). In this case, the severity of the misconduct was not great, and the
trial court's prompt instruction to disregard the statement was sufficient to cure any error.
See Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998) (stating that references
to extraneous offenses can ordinarily be cured by an instruction to disregard).
c. Third Factor—Certainty of Conviction
The certainty of conviction was high absent the improper remark. The evidence
showed that Nored called the police because appellant was "beating up" the woman in his
13 trailer. Soon after appellant saw Nored call the police, he attacked Nored with a sickle.
When appellant charged at Nored with the sickle, he told Nored he was going to teach him
a lesson. Nored hurt his knee and received a cut on his arm during the attack. Adams
testified he saw appellant attack Nored with the sickle.
Under the circumstances, we conclude the trial court's decision to deny the motion
for mistrial was not outside the zone of reasonable disagreement given the fact that (1) we
should assume that the jury followed the trial court's instruction to disregard and (2) the
certainty that appellant would have been convicted even in the absence of Nored's
remark. We therefore overrule the second issue.
C. Jury Argument
In issue three, appellant argues that "[i]n closing the state violated the prohibition
of referring to the defense's silence and the fact that [the] defense did not bring in any
witnesses in [his] defense, requiring reversal under Doyle."3
During the State's rebuttal closing argument at the guilt-innocence phase, the
prosecutor argued, in relevant part:
Now, [defense counsel] is right. He has every right to bring in all of the witnesses he wishes. His client has the right not to testify, but that doesn't mean that he can't bring in evidence, that he can't bring in people—
Defense Counsel: Your Honor —
Prosecutor: —to testify.
Defense Counsel: —I'm going to object. [The prosecutor] knows exactly that the burden is never on the defense.
3 See Doyle v. Ohio, 426 U.S. 610 (1976), which states that the federal constitution's guarantee of due process prohibits comment on a post-arrest silence after Miranda warnings are given. 14 The Court: The burden is never on the defense to bring any witnesses.
The Court: It's always on the State.
Defense Counsel: —I move for a mistrial.
After the trial court denied the motion for mistrial, the prosecutor continued his
closing argument: "If I'm in a bar and there is some sort of a fight in a bar and the State
brings in three people that testify about what took place in that bar, the defense can bring
in as many witnesses as they want." At that point, defense counsel objected:
Defense Counsel: This is the second time—
Prosecutor: No, no. Counsel is wrong, Judge. He has every right to bring as many witnesses as he wishes to come in. The burden is on me. There is no question about that. But he has—he has a right to bring in witnesses, and he can bring in witnesses.
Defense Counsel: Judge—
The Prosecutor: He's misleading this court and this jury.
The Court: Okay. Both of you please stop, okay?
The Court: Both of you please stop.
Defense Counsel: If I could make my objection.
The Court: Wait. Hold on, [defense counsel]. I'm going to rule in your favor. Just hold on.
Ladies and gentlemen, the defense does not have to bring any witnesses, whatsoever. It is up to the State to prove the allegations.
15 Defense Counsel: Your Honor, to the extent that this is the second time [the prosecutor] has done that, I move for a mistrial, Judge. He's done it twice.
2. Analysis
We note that on appeal, appellant does not complain of the trial court's failure to
grant a mistrial. Rather, he argues the State "violated the prohibition of referring to the
defense's silence and the fact that [the] defense did not bring in any witnesses in
[appellant's] defense[.]"
Defense counsel did not object that the prosecutor violated the prohibition against
referring to the "defense's silence." Accordingly, that part of appellant's complaint is not
preserved for our review. See TEX. R. APP. P. 33.1. Nevertheless, the court of criminal
appeals has "held that the prosecutor may comment on the defendant's failure to produce
witnesses and evidence so long as the remark does not fault the defendant for exercising
his right not to testify." Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App. 2000)
(citing Patrick v. State, 906 S.W.2d 481, 491 (Tex. Crim. App. 1995); Livingston v. State,
789 S.W.2d 311, 338 (Tex. Crim. App. 1987)). Here, the prosecutor's complained-of
comments did not fault appellant for not testifying and did not amount to a prohibited
reference to appellant's failure to testify. Thus, the prosecutor's references to the
defense's failure to produce witnesses or evidence was not improper particularly in light of
the trial court's instructions to the jury regarding the relevant burden of proof. Appellant's
third issue is overruled.
16 D. Charge Error
In issues four and five, appellant complains about two specific aspects of the
guilt-innocence charge. When reviewing allegations of charge error, an appellate court
must first determine whether error actually exists in the charge. Ngo v. State, 175
S.W.3d 738, 743 (Tex. Crim. App. 2005). If the appellate court finds error, then it
determines whether the error caused sufficient harm to require reversal. Id.
1. Lesser-Included-Offense Instruction on Misdemeanor Assault
In issue four, appellant contends the trial court erred by denying his request for a
lesser-included-offense instruction on misdemeanor assault. See TEX. PENAL CODE
ANN. § 22.01 (misdemeanor assault). "Determining whether a defendant is entitled to a
lesser-included-offense instruction requires a two-part analysis." Goad v. State, No.
PD-0435-11, 2011 WL 5375119, at *2 (Tex. Crim. App. Nov. 9, 2011) (citing Hall v. State,
225 S.W.3d 524, 528 (Tex. Crim. App. 2007)). "We first consider whether the offense
contained in the requested instruction is a lesser-included offense of the charged
offense." Id. (citing Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011); Hall, 225
S.W.3d at 535). "If so, we must decide whether the admitted evidence supports the
instruction." Id. (citing Rice, 333 S.W.3d at 144). "Assault is a lesser included offense
of aggravated assault." Barnett v. State, 344 S.W.3d 6, 15 (Tex. App.—Texarkana
2011, pet. ref'd); see Starks v. State, 127 S.W.3d 127, 133 (Tex. App.—Houston [1st
Dist.] 2003, pet. dism'd).
"The evidence supports an instruction on a lesser-included offense if it permits a
rational jury to find the defendant guilty only of the lesser-included offense." Goad, 2011
17 WL 5375119, at *2 (citing Rice, 333 S.W.3d at 145). "'[T]here must be some evidence
directly germane to the lesser-included offense for the finder of fact to consider before an
instruction on a lesser-included offense is warranted.'" Id. (quoting Hampton v. State,
109 S.W.3d 437, 441 (Tex. Crim. App. 2003)). "We consider all of the evidence admitted
at trial, not just the evidence presented by the defendant." Id. (citing Rousseau v. State,
855 S.W.2d 666, 672 (Tex. Crim. App. 1993)). "The evidence must establish that the
lesser-included offense is a valid, rational alternative to the charged offense." Id. (citing
Rice, 333 S.W.3d at 145). "'Anything more than a scintilla of evidence is sufficient to
entitle a defendant to a lesser charge.'" Id. (quoting Bignall v. State, 887 S.W.2d 21, 23
(Tex. Crim. App. 1994)). "However, we may not consider '[t]he credibility of the evidence
and whether it conflicts with other evidence or is controverted.'" Id. (quoting Banda v.
State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1994)).
There is no evidence in the record that would permit a jury rationally to find that
appellant was guilty only of misdemeanor assault. The evidence at trial contains no
affirmative evidence to rebut the aggravated-assault charge. Rather, the evidence
showed appellant attacked Nored with a deadly weapon; i.e., a sickle, which cut Nored's
arm. Appellant told Nored he was going to kill him and teach him a lesson, and Nored
hurt his knee during the attack. Appellant has not demonstrated that there is any
evidence in the record that, if he is guilty, he is guilty of only misdemeanor assault and not
aggravated assault by use of a deadly weapon. We conclude appellant was not entitled
to a lesser-included-offense instruction on misdemeanor assault. Thus, we hold
appellant has not offered more than a scintilla of evidence in favor of the requested
18 instruction, and therefore was not entitled to a lesser charge of misdemeanor assault.
Issue four is overruled.
2. Self-Defense Instruction
In issue five, appellant contends the trial court erred in denying his request for a
charge on self-defense. "If a defense is supported by the evidence, then the defendant
is entitled to an instruction on that defense, even if 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." Shaw v. State, 243 S.W.3d 647, 658 (Tex. Crim. App. 2007); see TEX. PENAL
CODE ANN. § 2.03(c) (West 2011). However, "the evidence must be such that it will
support a rational jury finding as to each element of the defense." Shaw, 243 S.W.3d at
658. "[A] defense is supported (or raised) by the evidence if there is some evidence,
from any source, on each element of the defense that, if believed by the jury, would
support a rational inference that that element is true." Shaw, 243 S.W.3d at 657–58.
We view the evidence in the light most favorable to the accused. Ferrel v. State, 55
S.W.3d 586, 591 (Tex. Crim. App. 2001). "Whether a defense is supported by the
evidence is a sufficiency question reviewable on appeal as a question of law." Shaw,
243 S.W.3d at 658.
As applied in this case, appellant would be justified in making a threat of deadly
force against Nored: (1) if appellant was justified in using force under section 9.31 of the
Texas Penal Code; 4 and (2) when and to the degree appellant reasonably believed
deadly force was immediately necessary to protect himself against Nored's use or
4 Section 9.31(b) provides a list of exceptions for when the use of force against another is not justified. See TEX. PENAL CODE ANN. § 9.31(b) (West Supp. 2010).
19 attempted use of unlawful deadly force. See TEX. PENAL CODE ANN. § 9.32(a) (West
Supp. 2010); see also TEX. PENAL CODE ANN. § 9.04 (West 2003) (stating "[t]he threat of
force is justified when the use of force is justified by this chapter."). "'Reasonable belief'
means 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) (West Supp. 2010).
A 2007 amendment to section 9.32 of the Texas Penal Code repealed the
previously required element that "a reasonable person in the actor's situation would not
have retreated." Act of March 20, 2007, 80th Leg., R.S., ch. 1, § 3, 2007 Tex. Gen. Laws
1; see also Morales v. State, No. PD-1155-10, 2011 WL 5375133, at *2–3 (Tex. Crim.
App. Nov. 9, 2011). The statute now provides:
(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.
(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.
TEX. PENAL CODE ANN. § 9.32(c)-(d).5
Here, the evidence in the record shows that appellant ran to Adams's trailer,
carrying a sickle. Appellant told Nored he was going to teach him a lesson, and Nored
told appellant that if he came any closer he was going to hit him with the extension pole.
He ignored Nored's warning and attacked him. Nored, in order to defend himself, struck
5 Subsection (a)(2) requires that the person using deadly force must reasonably believe that deadly force is immediately necessary. TEX. PENAL CODE ANN. § 9.32(a)(2). 20 appellant with the extension pole. Both men "wrestled around" for three or four minutes,
and when Nored took the sickle from appellant's hand, he let appellant go. Thus,
appellant threatened Nored with deadly force at a time when he was under no threat of
violence from Nored. No reasonable person would have believed that deadly force was
immediately necessary to protect himself from Nored at the time appellant ran to Adams's
trailer, carrying the sickle. See Bray v. State, 634 S.W.2d 370, 371–73 (Tex.
App.—Dallas 1982, no pet.) (stating defendant was not entitled to self-defense charge in
part because the complainant did not threaten deadly force). The fifth issue is overruled.
III. CONCLUSION
We affirm the trial court's judgment.
ROSE VELA Justice Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 19th day of January, 2012.