COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-12-00480-CR
KEVIN ROY BECKSTRAND A/K/A APPELLANT KEVIN RAY BECKSTRAND
V.
THE STATE OF TEXAS STATE
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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1248503D ----------
MEMORANDUM OPINION1
Appellant Kevin Roy Beckstrand a/k/a Kevin Ray Beckstrand appeals his
conviction for burglary of a habitation, for which he received a sentence of
confinement of three years in the Institutional Division of the Texas Department
of Criminal Justice. In his first of five issues, Appellant complains of the trial
1 See Tex. R. App. P. 47.4. court’s failure to charge the jury on self-defense. We sustain his first issue,
reverse the trial court’s judgment, and remand the cause for a new trial.
Background
The State alleged that Appellant, on or about July 26, 2011, intentionally or
knowingly, without the effective consent of Erin Beckstrand, the owner thereof,
entered a habitation with the intent to commit an assault. In a second paragraph,
the State alleged that Appellant, on or about July 26, 2011, intentionally or
knowingly, without the effective consent of Erin Beckstrand, the owner thereof,
entered a habitation and attempted to commit or committed an assault.2
Before a jury, Appellant pled not guilty. After hearing the evidence, the jury
found Appellant guilty as charged. The jury thereafter assessed Appellant’s
punishment at confinement for three years in the Institutional Division of the
Texas Department of Criminal Justice.
The Evidence
Appellant and Erin were married on April 8, 2006. They separated, and by
late October 2010 Appellant had moved out of the family home. The divorce was
not final until August 17, 2011, but they had entered into a mediated settlement
agreement about three weeks before the events in question, pursuant to which
Erin testified that she had possession of the house and all of Appellant’s
2 The State alleged alternate ways to commit the same offense of burglary of a habitation. Tex. Penal Code Ann. § 30.02(a)(1) (enters with intent to commit an assault), (3) (enters and commits or attempts to commit an assault) (West 2011).
2 possessions had been removed. She said Appellant did not have keys to the
house. Appellant acknowledged that by July 26, 2011, Erin had a greater right of
possession.
The parties had agreed and Erin acknowledged that Appellant had
possession of the couple’s two children for summer visitation for two weeks
starting on July 24 or 25, 2011, until August 8, 2011. Appellant had picked the
children up from Erin’s home on a Sunday afternoon. Erin acknowledged
Appellant had possession of the children for his two-week summer visitation on
July 26. Appellant had scheduled a camping trip to Colorado and Utah with the
two children, his mother, and his father for July 27, 2011. Appellant testified he
purchased a gun on that Monday afternoon, which would have been July 25,
2011, because he planned on taking the children hiking and wanted the gun for
protection against bears and moose. Appellant said he had pepper spray as well
because he thought it would be strong enough to repel a bear. Appellant said he
also borrowed a pickup truck because he did not think his regular car was a good
vehicle for their planned trip.
Appellant Discovers His Children are Missing and Describes His Efforts to Find Them
On July 26, 2011, which was a Tuesday, Appellant was unexpectedly
called to the office for a meeting, so he arranged for Kyli Morgan, Erin’s sister, to
come to his residence and attempt to take the children to a dental appointment
that he had cancelled but which he hoped was still available. When Appellant
3 returned home around 10:00 a.m., Kyli and the children were not there, and
Appellant’s attempts to contact Kyli and Erin were unsuccessful.
After he returned from lunch around 1:00 p.m., Appellant received a text
from Kyli informing him that Erin had instructed her not to return the children to
him, so he called the police sometime between 1:00 and 2:00 p.m. Two officers
came to Appellant’s residence, and one of them telephoned Erin. Erin
acknowledged a police officer called her around 1:30 p.m. Appellant expected
the children to be returned to him after this. They were not returned.
Over the remainder of the afternoon, Appellant called Erin, her two sisters,
her brothers, her mother, and her father about every hour until around 5:00 p.m.,
when he went to Erin’s home, knocked, and rang the doorbell. No one
answered, so he returned to his own residence for about an hour. Appellant then
went to Erin’s house a second time, but no one was there, so he went to the
home of Noah Morgan, Erin’s brother, which was only a couple of blocks away.
When Appellant saw no cars in the driveway, he waited and again tried to call
Erin, Noah, Kylie, and Erin’s mother with no success.
Appellant then drove to Kyli’s home in Denton. He acknowledged buying
ammunition for his gun on the way to Denton. When Appellant determined no
one was at Kyli’s residence, he drove to Erin’s mother’s home in Plano, but he
again determined no one was there. By that time, it was between 8:00 and 9:00
p.m. Appellant said he then stopped at a church to pray and thereafter drove to
Grapevine to see his brother, whom he hoped would help calm him down. While
4 in Grapevine, Appellant called the police again, and he met with another officer.
When asked why he called the police, Appellant answered:
Because at that point I—like I said, I was beginning to think the worst that my—my children could be floating in some bathtub, they could be on a plane to Brazil or to Egypt or—you know, they had been missing at this point for over 12 hours.
By the time the officer left, Appellant said it was close to 10:00 p.m.
Appellant drove to Erin’s home a third time and arrived around 10:30 p.m.
The house appeared to be dark, and the blinds were drawn, but the lamp next to
Erin’s bed was on. He rang the doorbell two to four times and knocked on the
door intermittently as well. Appellant testified, “Initially I thought I saw when I first
was walking up to that—to the house, the—there is—above the front door there’s
a window with blinds, and I thought I saw a finger peek through.” He thought he
saw a movement in the blinds consistent with someone looking at him standing
at the door. He then went to see if the lights were on in the children’s upstairs
bedrooms and determined they were not.
By this point, according to Appellant, he was in the backyard. “I—I was
feeling that I really needed to know where my children were. I felt like I had no
other choice. I had like visions in my—in my head of my children being hurt, like
I mentioned, or maybe they were drowned in a bathtub or—or something like
that. So I—I really—I thought, you know, I legally own this home.” Appellant
picked up a landscaping rock in the backyard and threw it through the back door
window. He reached through the door, unlocked it, entered the kitchen, turned
5 the lights on, and looked around. Appellant said he did not see anyone and did
not say a word but went to the garage where he saw Erin’s car, which meant to
him either that she and the children were in the house or that she had gone with
her sister in her sister’s car.
Erin’s Testimony
Erin testified she was in the house taking a shower when she heard a loud
banging. She denied hearing anyone ring the doorbell or knock at the door.
After getting out of the shower, she heard movement downstairs, so she
telephoned her brother. After calling her brother, Erin heard Appellant yelling
that he was going to kill her and that he had a gun. Frightened, Erin hid in a
closet and called the police. Erin denied giving Appellant permission to enter the
house that night.
Erin said the children were with her sister that night. Erin admitted having
told her sister, Kyli, not to return the children to Appellant that day. She
acknowledged Appellant had called and sent her multiple texts that day and that
she never responded to them. She admitted that he was looking for the children.
She said she knew that Appellant had the right of possession of the children that
day and that Appellant was upset with her. She never spoke with Appellant that
day. Even after a police officer called her around 1:30 p.m., she never
responded to Appellant. She said she was sufficiently concerned about
Appellant that she asked her brother, Noah, to escort her home that night.
6 Noah’s Testimony
Noah, Erin’s brother, confirmed he had spoken to Erin earlier on July 26,
2011. She had called and told him that Appellant had left multiple threatening
messages on her voicemail and had repeatedly tried to contact her. Based upon
what she told him, Noah was concerned about her and offered for her to stay
with him that night, but she declined. He escorted her home at about 9:00 p.m.,
after a dinner that evening with her colleagues, to make sure her house was
safe.
Noah lived about a half-mile from Erin. Around 10:00 or 10:30 p.m., she
called him, panicked, excited, and scared, and asked him to come quickly, so he
ran to his car and drove to her house as quickly as he could. In Erin’s driveway
Noah saw a Ford F-150 that he did not recognize.
As he opened his car door to step out, the garage door began to lift, and
once it was fully opened, Noah saw Appellant. He knew Appellant had not lived
in the house with Erin for about a year. Noah approached the garage, asked
Appellant why he was there, and suggested to Appellant it was best if he left.
Noah urged Appellant to leave and warned Appellant the police were on their
way, but Appellant responded by yelling and cursing. Noah related what
happened next: “I entered into the—the garage, you know, I again was urging
him to leave, cops were coming. And I actually reached out to—I still had my
keys in one hand, and I asked—you know, I think I grabbed one of his arms and
7 said, [‘]Come on, we need to leave, cops are coming, get out of here.[’] And
that’s where he attacked me.” Appellant hit him in the face with a closed fist.
Noah tried to tackle Appellant, but Appellant fell on top of him and
continued to hit him. Eventually Appellant let Noah up and said he was leaving.
Instead of leaving, Appellant hovered over Noah while Noah was still on his back,
and Noah thought Appellant intended to attack him again. Appellant kicked him
in the head but then backed up enough to allow Noah to stand up. Noah
grabbed two bricks, one in each hand, threw one, and charged Appellant with the
other. Appellant dodged the brick Noah threw, but when he tried to strike
Appellant with the second one, he managed to graze Appellant in the head.
Appellant then tackled him, and they ended up pinned between Erin’s car and the
house. At some point Appellant got up and walked away, and Noah ran into the
house, locked the door, looked for his sister, and called 9-1-1. The police arrived
fairly quickly. Noah refused to go to the hospital; he acknowledged an
ambulance took Appellant to the hospital. Noah said that his niece and nephew
were not in the house and that he had no idea where they were.
Appellant’s Version of the Altercation
Appellant described his encounter with Noah differently. According to
Appellant, he heard a car pull up, so he hit the garage door button to open the
garage door. He saw Noah coming toward him. Noah asked him what he was
doing. Appellant responded several times by asking where his children were.
“He approached me very quickly. He grabbed me, slamming me up the—up
8 against the side of my wife’s car, and he jammed his forearm into my throat.”
Noah had him pinned up against the car, and Appellant again asked where his
children were. Appellant said he felt pain in his throat. Appellant said he
grabbed the arm that was against his neck, pulled it back, and then began
punching Noah’s head and face with both his hands. Appellant said he was
defending himself. He thought he caught Noah by surprise, and he repeatedly
punched Noah’s face and head until Noah went to the ground.
Appellant stood over Noah with one foot on his chest and repeatedly asked
where the children were and accused Erin and her family of kidnapping his
children. Appellant stepped back and allowed Noah to get up, at which point
Noah grabbed a brick and threw it at Appellant. Appellant dodged it. Noah
picked up another brick, swung it at Appellant, and managed to skim the side of
his head, causing a laceration. Appellant said he was “stunned,” and Noah
managed to get in several blows. Appellant said he pushed Noah over the hood
of his wife’s car, and they both got caught in the tight space between his wife’s
car and the wall. Appellant managed to retreat and leave the garage, after which
he went to a neighbor’s home and asked the neighbor to call the police. The
police came, and an ambulance took Appellant to the hospital.
Other Testimony
Officer Joshua Russell testified that he responded to the scene where the
altercation had occurred that night and that he searched the truck parked in the
driveway for a gun which Appellant had told the officers on the scene was in the
9 truck. Officer Russell found the gun, an Ultra Star .9 millimeter handgun, either
in the glove compartment or in the center console. Ammunition was in the
magazine. He also found pepper spray in the holster. He did not believe a round
of ammunition was chambered.
Appellant denied going into Erin’s home with the intention to assault
anyone and denied telling her, “I’ll kill you” and “I have a gun.” Appellant
maintained he did not say a word after entering the house. Appellant also denied
assaulting Noah. Appellant testified Noah assaulted him, and he defended
himself. Appellant said he told the police a gun was in the truck. Appellant
acknowledged Erin and her neighbors would not have recognized the pickup
because he borrowed it.
On cross-examination, Appellant acknowledged he had previously testified
that it was not normally in his character to do something like what he did that
night, but he said he was referring to throwing a rock through a window. When
asked if that was totally accurate, Appellant maintained it was. On further cross-
examination after the court ruled that Appellant had opened the door by his
testimony about his character, Appellant admitted being arrested in Denton
County in October 2010 for interfering with public duties, evading arrest, and
disorderly conduct, that two of the charges were still pending, and that he had
spent twenty-seven days in jail in October 2010.
While at the hospital after the fight with Noah, Appellant gave a written
statement to the police. Appellant wrote that he had vacation custody of his
10 children from July 26th until August 8th and that his wife’s family was hiding the
children from him. Appellant wrote that he went to his wife’s residence, rang the
doorbell twice, and threw rocks at the back door five times until he gained entry.
Once inside, he went to the garage, found his wife’s car there, and heard a car
pull up, which he hoped was the police. It was, instead, Noah, who approached
Appellant and asked Appellant what he was doing. Appellant then wrote: “He
put his hands on me and I proceeded to beat the shit out of him.” Appellant
wrote that after he let Noah up, Noah picked up two bricks and threw them at
him. Appellant also wrote that the second brick had skinned the back of his
head.
Regarding Appellant’s written statement, Appellant testified that was
actually the second statement he wrote. Appellant said his first statement had
been far more detailed, but he was given another piece of paper and was told to
rewrite his statement. Appellant said that after thinking about it, he decided he
did not want to hurt Erin, so he left out the part about her kidnapping the children
and wrote that he did not want to press charges against her or Noah.
The State also admitted portions of an email Appellant sent to Erin on
August 19, 2011. The admitted portions provided:
[We know that your family was also behind more coneiving [sic]] deceitfulness and testimony to lawenforcement [sic] to try and get more serious charges filed against me.3 You have tried to destroy 3 The portion actually provided to the jury begins in midsentence with “deceitfulness . . . .” We provide the deleted portion of the sentence just for our own clarity. We can only assume time-restraints explain the curious editing.
11 and discredit the wrong man and family. You should just consider that you and your famil[y’s] intentions an[d] actions are pretty much under a federal investigation and this is no exaggeration. Be happy that you married a kind and loving man! I know I did violate a civil court order and even the fact that you did the same by hiding my kids from me was no excuse for my actions and I sincerely apologize. I had no idea you were home and I’m sorry if I alarmed you.
I would also appreciate [it if] you g[a]ve my sincere [and] kind regards to Noah. I hope he is okay and no lasting damage has come from our altercation! Please tell him I love him and am sorry for what went down between us. If I didn’t feel this way about him I would seriously consider pursuing attempted murder charges against him. I had him completely subdued and when I relented and let him up, he attempted to smash my brains in not once but twice with bricks from my own home. He was just an in[n]ocent bystander of your dumb . . . stupidity and my training in self[-]defense!
I was certainly wrong for breaking into our home to reclaim property that rightly belongs to MY FAMILY! I will give you one more chance to do the right thing by my family[,] our children[,] and me. Your kindness and cooperation would really be appreciated. Try to be a decent and respectable person and do the right thing! I wish you knew the reputation you have with some parents at Woodland Springs Elem[entary]. You would be embarrassed and ashamed of yourself as I am that I once called you[] my wife and friend!
Regarding his email, Appellant denied at trial that he thought he was
violating any court order. At the time of the events, he said, they had signed the
mediated settlement agreement that provided she would get the house when the
divorce was final and he would sign the deed of trust over to her, but the email
was written a month later after reflection and after talking with his divorce lawyer.
When asked by defense counsel why he wrote the part about not knowing Erin
was in the house and being sorry he alarmed her, Appellant responded that at
12 the time he was frantic and worried about his children but, in retrospect, he felt
bad about scaring her and that it was not something normally in his character to
act like that. Regarding his statement that Noah was an innocent bystander,
Appellant said that he thought Noah had nothing to do with the abduction of his
children.
First Issue: Alleged Charge Error on Necessity and Self-Defense
In his first issue, Appellant contends the trial court erred when it denied his
request to instruct the jury on the defenses of necessity and self-defense.
Appellant contends these defenses were raised by the evidence and the error
was harmful. Appellant requested the jury be instructed on both necessity and
self-defense.
Generally
The court of criminal appeals has made it clear that a defendant has the
burden of production of some evidence on each element of a justification
defense, and it held that a defense is raised “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 v. State, 243 S.W.3d
647, 657–58 (Tex. Crim. App. 2007) (emphasis added), cert. denied, 553 U.S.
1059 (2008). The trial court neither weighs the evidence nor determines the
credibility of the witnesses, including the credibility of the defendant, but must
assume the evidence supporting the defense is credible. Shaw v. State, 181
13 S.W.3d 450, 452 (Tex. App.—Waco 2005), aff’d, 243 S.W.3d at 660, cert.
denied, 553 U.S. at 1059.
On appeal, we review whether the evidence raises a defense of
justification de novo as a question of law. Shaw, 243 S.W.3d at 658; Shaw, 181
S.W.3d at 452. We do not apply the usual rule of appellate deference to the trial
court’s ruling at this stage or at the stage of jury submission. Bufkin v. State, 207
S.W.3d 779, 782 (Tex. Crim. App. 2006); Johnson v. State, 271 S.W.3d 359, 367
(Tex. App.—Beaumont 2008, pet. ref’d). When reviewing de novo, we afford no
deference to the trial court’s determination and consider the matter as if we were
the court of first instance. See Tucker v. State, 369 S.W.3d 179, 187 (Tex. Crim.
App. 2012) (Alcala, J., concurring). We view, as does the trial court, the
evidence relied on by the defendant to raise the defense in the light most
favorable to the defendant. See Bufkin, 207 S.W.3d at 782; Johnson, 271
S.W.3d at 366, 367. If each element of a justification defense is raised by some
evidence, the defendant is entitled to an instruction to the jury on that defense,
regardless of whether the evidence supporting the defense is strong, weak,
feeble, impeached, or contradicted, and even if the trial court is of the opinion
that the testimony raising the defense is not credible. Shaw, 243 S.W.3d at 657–
58 (citing Tex. Penal Code Ann. § 2.03 (West 2011)); see Walters v. State, 247
S.W.3d 204, 209 (Tex. Crim. App. 2007).
14 Necessity
Section 9.22 of the Texas Penal Code provides that a defendant’s conduct
is justified if he reasonably believes his conduct is immediately necessary to
avoid imminent harm. Tex. Penal Code Ann. 9.22(1) (West 2011). For the
reasons set out below, we hold the trial court correctly ruled Appellant did not
meet the first element.
A defendant must have more than a generalized fear of harm to raise the
defense of necessity; the harm must be “imminent,” that is, the harm must be
“immediate, something that is going to happen now.” Stefanoff v. State, 78
S.W.3d 496, 501 (Tex. App.—Austin 2002, pet. ref’d). Moreover, the mere
possibility of harm does not suffice to support a necessity defense. See Boushey
v. State, 804 S.W.2d 148, 151 (Tex. App.—Corpus Christi 1990, pet. ref’d), cert.
denied, 502 U.S. 912 (1991). In most cases, whether a defendant was prompted
to act by a reasonable belief will be a question for the trier of fact, but a
defendant’s belief that his conduct was immediately necessary to avoid imminent
harm may be deemed unreasonable as a matter of law if the undisputed facts
show a complete absence of evidence of immediate necessity or imminent harm.
See Graham v. State, 566 S.W.2d 941, 952 n.3 (Tex. Crim. App. 1978); Scroggs
v. State, 396 S.W.3d 1, 13 (Tex. App.—Amarillo 2010, pet. dism’d, untimely
filed); Arnwine v. State, 20 S.W.3d 155, 159 (Tex. App.—Texarkana 2000, no
pet.); Wilson v. State, 777 S.W.2d 823, 825 (Tex. App.—Austin 1989), aff’d, 853
S.W.2d 547 (Tex. Crim. App. 1993).
15 There was no evidence Appellant knew where the children were. Indeed,
it was undisputed that he did not know where they were. That was the problem
for which Appellant was seeking an answer. At best there was some evidence
Appellant suspected someone was in the house. But there was no evidence the
children were there or, more importantly, that they were in any danger anywhere.
Appellant had left the children with Kyli, and Appellant’s actions showed he
thought Erin’s side of the family had the children and were concealing them from
him, but there was no evidence Erin or any other family member posed any type
of physical threat to the children. Fears he expressed at trial that he had thought
at the time he entered the house that the children might be drowned in a bathtub
or on their way to Brazil or Egypt had no basis in any prior threats or conduct by
Erin or her family. A generalized and unsubstantiated fear is not “reasonable” as
a matter of law. See Roy v. State, 552 S.W.2d 827, 831 (Tex. Crim. App. 1977)
(holding generalized fear of being robbed in high crime neighborhood did not
entitle defendant, charged with unlawful possession of a firearm, to defense of
necessity), overruled on other grounds, Johnson v. State, 650 S.W.2d 414, 416
(Tex. Crim. App. 1983) (holding defense of necessity not unavailable as a matter
of law when prosecuted for unlawfully carrying a weapon on licensed premises),
overruled on other grounds, Boget v. State, 74 S.W.3d 23, 31 (Tex. Crim. App.
2002) (holding self-defense not limited to when defendant charged with offense
involving force against another); Cyr v. State, 887 S.W.2d 203, 206–07 (Tex.
App.—Dallas 1994, no pet.) (concluding protester not entitled to necessity
16 instruction on basis he was acting to prevent illegal third trimester abortions
where evidence showed only that there could have been late-term abortions
being performed; no evidence of reasonable belief of imminent harm); Thomas v.
State, 855 S.W.2d 212, 214 (Tex. App.—Corpus Christi 1993, no pet.) (same).
We hold the trial court did not err by refusing an instruction regarding necessity.
Self-Defense
Appellant contends that Noah assaulted him inside Erin’s garage and that
Appellant simply defended himself. Section 9.31(a) of the Texas Penal Code
provides that “a person is justified in using force against another when and to the
degree the actor reasonably believes the force is immediately necessary to
protect the actor against the other’s use or attempted use of unlawful force.”
Tex. Penal Code Ann. § 9.31(a) (West 2011).
The State responds that Appellant cannot rely on self-defense because
self-defense requires the use of “unlawful” force. The State maintains Noah’s
use of force was lawful because he was trying to protect a third person and to
protect a third person’s property. Noah was at Erin’s house at her request to
protect her or her property from an intruder; consequently, the State argues
Noah’s use of force, to the degree he reasonably believed force was immediately
necessary, was lawful. See Tex. Penal Code Ann. §§ 9.31(a) (self-defense);
9.33 (defense of third person); 9.41(a) (protection of one’s own property);
9.43(2)(A) (protection of third person’s property) (West 2011). The State
17 contends Appellant did not put on any evidence that Noah’s use of force was
unlawful.
We disagree with the State. The State is viewing the evidence in the light
most favorable to the State. Evidence offered in support of a defensive issue is
reviewed in the light most favorable to the defendant. Trevino v. State, 60
S.W.3d 188, 193 (Tex. App.—Fort Worth 2001), aff’d, 100 S.W.3d 232 (Tex.
Crim. App. 2003). The State fails to assess Appellant’s justification from
Appellant’s standpoint. Both a plea of justification based on necessity and a plea
of self-defense must be assessed from the defendant’s standpoint. Trotty v.
State, 787 S.W.2d 629, 630 (Tex. App.—Fort Worth 1990, pet. ref’d). The
question is what the actor reasonably believed. Tex. Penal Code Ann. § 9.31(a).
Appellant knew Erin was behind the disappearance of his children. But
other than Kyli’s text advising him of that fact, neither Erin nor any of her family
members were responding to Appellant’s calls or texts. Appellant had spent the
entire day trying to locate his children without success. When Noah entered the
garage and, according to Appellant, attacked him, Appellant said he defended
himself. Although Appellant acknowledged Erin had a greater right of
possession, Appellant’s fight was with Noah, not Erin. There was no evidence
Appellant knew why Noah was there, as he was not privy to Erin’s calls to Noah
that evening either about her fears based on Appellant’s calls and texts during
the day or her call to Noah requesting Noah to “come quick” when she heard
noises downstairs after returning home. Nor is there any evidence that Noah
18 ever advised Appellant that he had been called by Erin to come defend her or
that he was authorized by her to be there, much less to remove Appellant from
the premises. Moreover, in Appellant’s mind, he was still the legal owner on the
mortgage, and the fact that Erin had taken his children gave him the right to enter
the property. Noah acknowledged that when he confronted Appellant, Appellant
asserted Appellant had the right to be there but Noah did not. The evidence was
that in Appellant’s mind, as between Appellant and Noah, Noah was the
trespasser. In Appellant’s mind, he was not in an indefensible position of
committing an offense and being lawfully stopped by someone else. To the
contrary, in his mind Erin and her family were in the indefensible position of
having unlawfully kidnapped his children, Appellant was trying to get his children
back, and Noah, Erin’s brother, attacked him during his efforts to recover the
children. See Bennett v. State, 726 S.W.2d 32, 38 (Tex. Crim. App. 1986)
(stating jury first had to determine if deceased was justified in using deadly force
against the appellant in defense of third party as viewed from deceased’s
standpoint and, second, whether the appellant, viewed strictly from the
appellant’s standpoint, reasonably believed the deceased was acting lawfully;
further stating that if jury found that the appellant in fact did reasonably believe
the deceased was justified, the appellant would have had no right to self-
defense). The fact question for the jury was whether, when viewing the
circumstances strictly from Appellant’s standpoint, Appellant reasonably believed
Noah was acting unlawfully. If the jury decided Appellant in fact did not
19 reasonably believe Noah’s use of force was unlawful, Appellant would lose his
right to self-defense. See id.
Additionally, the amount of force used has limits. Boget, 74 S.W.3d at 30.
“[I]t has often been declared that in instances where force may be lawfully
exercised it amounts to an assault and battery when the force used becomes
excessive.” Mickle v. State, 88 Tex. Crim. 405, 410, 227 S.W. 491, 494 (1921).
One version of the initial encounter between Appellant and Noah
suggested Noah’s initial force might have been excessive and, therefore,
potentially unlawful. Once again, a fact question for the jury was whether, when
viewed strictly from Appellant’s standpoint, Appellant reasonably believed Noah’s
use of force was excessive and, therefore, unlawful. See Bennett, 726 S.W.2d at
38. Appellant testified at trial that Noah approached him quickly, grabbed him,
slammed him against Erin’s car, and jammed his forearm against his throat. If
Noah’s use of force, as described by Appellant at trial, was excessive, then it
would have been unlawful, and Appellant would have been entitled to a self-
defense instruction. Viewing the evidence in the light most favorable to the
defendant, we cannot say as a matter of law that the amount of force Appellant
described was not excessive. See Trevino, 60 S.W.3d at 193 (“An accused is
entitled to an instruction on every defensive issue raised by the evidence whether
that evidence is strong, weak, contradicted, unimpeached, or unbelievable.”).
The State also argued that a defendant may not commit a crime and then
use the victim’s response to claim self-defense, citing Westley v. State, 754
20 S.W.2d 224, 230 (Tex. Crim. App. 1988), cert. denied, 492 U.S. 911 (1989);
Davis v. State, 597 S.W.2d 358, 360 (Tex. Crim. App.), cert. denied, 449 U.S.
976 (1980); Cline v. State, 150 Tex. Crim. 586, 592, 204 S.W.2d 512, 516–17
(1947); Williams v. State, 120 Tex. Crim. 484, 486–87, 48 S.W.2d 304, 305
(1932); Yarborough v. State, 66 Tex. Crim. 311, 312, 147 S.W. 272, 272 (1912);
and Hernandez v. State, 969 S.W.2d 440, 445 (Tex. App.—San Antonio 1998,
pet. ref’d). The State maintains Appellant admitted committing the offense of
trespass. See Tex. Penal Code Ann. § 30.05(a) (West Supp. 2014).
We are not persuaded that by committing a trespass, Appellant
categorically forfeited all rights to self-defense. Westley, Davis, and Hernandez
involved robberies where the case law expressly states that a robber has no right
of self-defense against his victim. Westley, 754 S.W.2d at 230; Davis, 597
S.W.2d at 360; Hernandez, 969 S.W.2d at 442, 445. Appellant was not
committing a robbery. Those cases are not controlling.
Cline and Williams both involved burglaries, but they also involved a
burglary statute that expressly stated homicide was justifiable in “cases of
burglary and theft by night.” Cline, 204 S.W.2d at 516–17 (“In cases of burglary
and theft by night, the homicide is justifiable at any time while the offender is in
the building or at the place where the theft is committed, or is within reach of
gunshot from such place or building.”); Williams, 48 S.W.2d at 305 (quoting the
same statute as the one in Cline, the court wrote: “The issue of self-defense was
not raised. Deceased had the legal right to kill appellant to prevent the
21 burglary.”). The use of deadly force in self-defense or in defense of property is
now governed by sections 9.32 and 9.42 of the Texas Penal Code. See Tex.
Penal Code Ann. §§ 9.32, 9.42 (West 2011). Homicide is no longer justifiable “at
any time.”
The State asserts Yarborough involved a trespass. Although a trespass
was involved in Yarborough, the offense for which the defendant was convicted
was aggravated assault. Yarborough, 147 S.W. at 272. In Yarborough, the
landlord entered his tenant’s property, loaded the tenant’s cotton on the
landlord’s wagons, and, while attempting to leave, was confronted by the tenant’s
wife and daughter, who attempted to prevent the landlord from leaving. The
landlord argued he was entitled to a self-defense instruction because the tenant’s
daughter tried to strike him with a scale beam. Id. The court wrote:
The state’s evidence amply supports the verdict, and appellant could not claim to have been acting in self-defense, as he was wrongfully on the premises, and was engaged in an illegal act–taking another’s property without warrant of law–and if [the tenant’s wife] and [his] daughter had used force to prevent them from taking the property, and used no more force than was necessary, they would have been justifiable in the law. Consequently the court, under the evidence, did not err in refusing to submit the issue of self-defense.
Id. Even Yarborough does not give a complainant the right to use more force
than was necessary. We cannot agree with the State that as a matter of law
Noah’s use of force, when judged from Appellant’s standpoint, was lawful. See
Bennett, 726 S.W.2d at 37 (stating that the reasonableness of an accused’s
22 belief that unlawful deadly force is being exerted against him must be judged
from the standpoint of the accused at the instant the accused responds to the
attack).
The State also appears to argue that even if Noah’s use of force was
unlawful, Appellant provoked Noah’s use of unlawful force by trespassing on
Erin’s property and then refusing to leave. See Tex. Penal Code Ann. §
9.31(b)(4). A charge on provocation is required when there is sufficient evidence
that (1) the defendant did some act or used some words which provoked the
attack on him, (2) such act or words were reasonably calculated to provoke the
attack, and (3) the act was done or the words were used for the purpose and with
the intent that the defendant would have a pretext for inflicting harm on the other.
Smith v. State, 965 S.W.2d 509, 513 (Tex. Crim. App. 1998). All the elements
are questions of fact, although provocation may be established as a matter of
law. Id. (citing Dyson v. State, 672 S.W.2d 460, 463–64 (Tex. Crim. App. 1984)
(appellant testified he wanted a fight); Smith v. State, 156 Tex. Crim. 253, 254–
58, 240 S.W.2d 783, 784–86 (1951) (defendant killed deceased while attempting
to recover money lost in a crap game)). We cannot say as a matter of law that
Appellant remained in the garage as a pretext to injure Noah. See Bennett, 726
S.W.2d at 35–36.
Error properly preserved by an objection to the jury charge requires
reversal “as long as the error is not harmless.” Almanza v. State, 686 S.W.2d
157, 171 (Tex Crim. App. 1984) (op. on reh’g). The presence of “any harm,
23 regardless of degree,” is sufficient to require reversal. Arline v. State, 721
S.W.2d 348, 351 (Tex. Crim. App. 1986). For the reasons set out below, we hold
that Appellant suffered some harm.
The State could have proven its case in one of three ways. First, the State
could have proved its case by showing Appellant entered Erin’s house with the
intent to commit an assault. Second, the State could also have proven its case
by showing Appellant entered the house and then committed an assault by
verbally threatening to kill Erin. A person commits an assault if the person
intentionally or knowingly threatens another with imminent bodily injury. Tex.
Penal Code Ann. § 22.01(a)(2) (West Supp. 2014). Finally, the State could have
proven its case by showing Appellant entered the house and thereafter assaulted
Noah.
During opening arguments, the State did not mention any verbal threats
against Erin. Instead, the State argued the evidence would show Appellant
assaulted Noah inside the garage. During final arguments, the State relied upon
the alleged verbal threats both as a means to determine Appellant’s intent when
entering Erin’s home and as an assault once Appellant was inside the home. At
the same time, the State relied upon Appellant’s assaulting Noah. The first
prosecutor said,
And you all 12 don’t have to agree on which way assault was committed. If 6 of you think that he committed assault by threatening imminent bodily injury and if the other 6 of you agree that he committed assault by causing bodily injury, then you all 12
24 agree that he committed an assault. You don’t all have to agree on how he did it; you just all have to agree that he did it.
The second prosecutor underscored the first prosecutor’s argument, “I don’t have
to prove which victim was going to be assaulted. It can be anyone, one of them.
You don’t have to agree which one.”
Because Appellant admitted striking Noah, without the self-defense
instruction, Appellant admitted the offense. The error was harmful as to the third
basis. See Johnson, 271 S.W.3d at 368 (“Because appellant admitted that she
intentionally stabbed T.L.B. to stop him from jumping on her or hitting her, and
the jury was not instructed to consider appellant’s statutory defensive theory that
was sufficiently raised by the evidence, the jury had no choice but to convict
appellant of murder.”) The error, however, would be harmless as to the first two
bases, as self-defense played no role in either of those. Unfortunately, we are
not able to tell which of the three theories the jury relied on. We are able to
conclude, however, that if even one juror relied on the third basis involving Noah,
Appellant was harmed. “[A]ny harm, regardless of degree,” is sufficient to require
reversal. See Arline, 721 S.W.2d at 351. “Unless all harm was abated, appellant
suffered ‘some’ harm.” Miller v. State, 815 S.W.2d 582, 586 n.5 (Tex. Crim. App.
1991). We, therefore, hold Appellant suffered some harm by the failure to submit
the self-defense instruction. We overrule Appellant’s first issue with respect to
the defense of necessity, but we sustain it with respect to the justification issue of
25 Conclusion
Having sustained Appellant’s first issue in part, we need not address his
other four issues. See Tex. R. App. P. 47.1. We reverse the trial court’s
judgment and remand the cause for a new trial.
/s/ Anne Gardner ANNE GARDNER JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.
LIVINGSTON, C.J. and GABRIEL, J. concur without opinion.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: April 2, 2015