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NUMBER 13-04-575-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CHRIS McBRIDE, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 130th District Court
of Matagorda County, Texas.
MEMORANDUM OPINION [1]
Before Chief Justice Valdez and Justices Yañez and Castillo
Memorandum Opinion by Justice Castillo
A jury convicted appellant Chris McBride of murder[2] and assessed punishment at thirty years confinement in the Institutional Division of the Texas Department of Criminal Justice. By two points of error, McBride asserts that the trial court reversibly erred by denying him a requested instruction on his justification defenses of self defense and necessity.[3] We affirm.
I. BACKGROUND
McBride testified, and essentially claimed, that he killed Harrison in self defense and shot Harrison out of necessity.[4] Events leading to Harrison's death unfolded as follows.
McBride had filed for divorce in February 2004, and a mutual restraining order was pending with respect to McBride and his wife, "Melissa." The two were living apart. Their two minor children were living with McBride. Melissa admittedly had an ongoing extra-marital affair with Harrison, spanning approximately three years. On Saturday, April 10, 2004, Melissa advised McBride that she was taking Allison, the younger of their two children, to a beach near Sargent, approximately twenty minutes away from their homestead in Sweeny. As it was Easter weekend, McBride was to join them for the day. However, work delayed him.[5] Ultimately, he headed toward Sargent and met Melissa, who was apparently returning to Sweeny. They stopped and Allison joined McBride while Melissa went to a convenience store to buy insect repellant. McBride observed that Allison lacked undergarments and clothes.[6]
Meanwhile, at the convenience store, Melissa had telephoned Harrison. After waiting what he construed as a considerable time for the short trip, McBride proceeded to look for Melissa.[7] En route, he saw her at a six-room motel. The family had twice before stayed at the six-room complex.[8] Perplexed that the weather and the child's need for clothes might suggest a return to Sweeny, McBride confronted Melissa about the motel room she had reserved and, because it was Easter weekend, "let it go." In room 3, Melissa proceeded to shower while McBride fed Allison. The motel manager appeared at the door with a telephone in hand, indicating the caller requested to speak to Melissa. McBride recognized the number on the caller ID as Harrison's mother's telephone number. While handing the telephone to Melissa, McBride admittedly struck her with it. An argument ensued. Melissa left the room and drove off but returned in short term. While the argument continued, McBride said he would leave to get the child's clothes from Sweeny and left. Melissa stayed. She discovered she locked her keys in her car and called Harrison to request he take her the extra set from her mother's house.
While at his residence, McBride pondered for approximately an hour and a half over the events in Sargent and decided not to return.[9] He cleaned a shotgun he usually carried with him. He loaded the shotgun with birdshot. He remembered that the child needed clothes and decided to return to Sargent. He gathered the child's clothes, jackets for the three of them, his loaded rifle, a shotgun, and ammunition,[10] and loaded them in the truck. Before leaving town, he drove by Harrison's house to see if he was home. Harrison's car was there. McBride assumed he was home and proceeded to Sargent.
In Sargent, McBride saw Harrison's mother's car at the motel. The time was approximately 2:00 a.m. After he parked, McBride put one live round in the chamber of the shotgun, took the child's clothes, and concealed the shotgun with a jacket. Hearing footsteps, Melissa looked out the window and saw McBride approaching. She saw the jacket draped over his shoulder and assumed he was armed. She threw Harrison's gun to Harrison.[11] At room 3, McBride tried to open the door and it was locked. He knocked, and Melissa told him to leave. He kicked the door, but it did not open. The jury heard that McBride yelled profanities at Harrison, telling him to step outside and that he was going to kill him. Harrison responded with what McBride termed "something sarcastic."[12] McBride broke a panel of the window next to the door with his weapon. Using his 9 millimeter handgun, Harrison fired at McBride from inside the room. The bullet broke what McBride said was the bottom window pane. McBride testified the glass cut his face. McBride returned fire.[13] Harrison fired again. McBride shot again. Whether Harrison fired a third shot is disputed.[14] McBride fired a third shot. McBride described for the jury the location of Harrison by the flash created when Harrison fired his weapon. In his statement to police, McBride described Harrison's movement in the apartment as first near the door to the room, then in the middle of the room, and then at the back of the room toward the bathroom.[15] Evidence showed that the room was small.
Harrison died at the scene as the result of injuries sustained from the shotgun blast to his neck and chest.[16] Before collapsing, Harrison told Melissa that he was hit and he was out of bullets.[17] McBride fled the scene. He testified that he left when Harrison stopped shooting. He stated he did not retreat because he feared Harrison would shoot him if McBride made his way down the flight of stairs to the truck. He testified he was unaware that Harrison died and was out of bullets. McBride testified that he was in "a defensive state of mind."
McBride eluded capture for several hours and ultimately surrendered when surrounded by law enforcement. When arrested, he was told Harrison was dead. McBride stated he was glad. In his statement to police, McBride stated that Melissa was "just as guilty" as he was for killing Harrison. Some time later, McBride testified that he believed that there might have been a plan afoot to kill him. He testified that one of Harrison's bullets lodged in a stud in the wall of the motel room would have hit his chest if not blocked. McBride further testified that the other bullets were directed at him. He stated that, when returning fire, he aimed toward the direction of the blast from Harrison's gun.
The jury heard the history of acrimony between the two men. The jury also heard that both men were armed well before the date in question and, by various means, this was made known to each. The two exchanged numerous verbal threats. McBride testified that Harrison had, on one or more occasions, pointed a pistol at him. McBride testified that he considered Harrison dangerous, stating that it could be assumed that someone armed with a gun is going to use it. A prior physical altercation between them resulted in an aggravated assault charge against McBride, which remained pending at the time of trial.[18] Both regularly used methamphetamines. Both physically assaulted Melissa.[19]
McBride objected to the charge because it lacked instructions on self-defense and necessity. He requested an instruction on self-defense and necessity. The trial court overruled the objections. The jury charge does not contain the instructions. It does contain a lesser-included charge of manslaughter which, by its verdict, the jury rejected.
II. JURY CHARGE ERROR
A defendant has the right to an instruction on a defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may believe about the credibility of the defense. Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996); see also Bowen v. State, 162 S.W.3d 226, 229 (Tex. Crim. App. 2005); Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999);; Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993) (en banc). A defendant's testimony alone may suffice to raise a defensive issue requiring submission of an instruction on a defensive issue. Pennington v. State, 54 S.W.3d 852, 856 (Tex. App.BFort Worth 2001, pet. ref'd) (citing Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987)). We view the evidence submitted in support of the defense in the light most favorable to the defendant. Id.
Our first duty in analyzing a jury charge issue is to determine whether error exists. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003) (en banc) (citing Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996)). Then, if we find error, we analyze that error for harm. Middleton, 125 S.W.3d at 453; see Posey v. State, 966 S.W.2d 57, 60 & n.5 (Tex. Crim. App. 1998) (en banc).
A. Preservation of Error
By his two points of error, McBride maintains that the trial court reversibly erred by denying instructions on his defenses of justification. The State responds that McBride's general objection to the jury charge is insufficient to preserve error.
To preserve error relating to the charge, a defendant must either object to the charge or make a request for a special charge on the issue in question. Tex. Code Crim. Proc. Ann. arts. 36.14, 36.15 (Vernon Supp. 2005); Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim. App. 1996) (en banc); Garza v. State, 55 S.W.3d 74, 77 (Tex. App.BCorpus Christi 2001, no pet.) Under article 36.14, the accused is required to object and obtain an adverse ruling to preserve any error. Vasquez, 919 S.W.2d at 435. However, under article 36.15, if the accused requests a special charge no objection is required to preserve error. Guzman v. State, 567 S.W.2d 188, 190 (Tex. Crim. App. 1978). All that is necessary under article 36.15 is that the requested charge be in writing or dictated to the court reporter. The request need only be sufficient to call the trial court's attention to the omission in the court's charge. Stone v. State, 703 S.W.2d 652, 655 (Tex. Crim. App. 1986) (en banc). A defendant preserves error for appellate review if the request is sufficiently specific to put the trial court on notice of an omission or error in the charge. Brazelton v. State, 947 S.W.2d 644, 647 (Tex. App.BFort Worth 1997, no pet.).
In this case, McBride timely objected to the jury charge and requested, on the record, a charge with respect to his justification defenses of self-defense and necessity. The trial court overruled the objection on the record. McBride received an adverse ruling to his request, and no further objection was necessary. See Vasquez, 919 S.W.2d at 435; James v. State, 772 S.W.2d 84, 112 (Tex. Crim. App. 1989) (en banc); see Garza, 55 S.W.3d at 77. We conclude that McBride properly preserved error. See also Tex. R. App. P. 33.1. We turn to McBride's claims on appeal.
B. Self-defense
By his first point of error, McBride maintains that he was entitled to a self-defense instruction because McBride, while armed himself, considered Harrison dangerous. He asserts he knew Harrison carried a gun, and Harrison had previously threatened McBride verbally and pointed a gun at him. McBride further asserts that his testimony demonstrates (1) Harrison was the first to use deadly force, (2) the deadly force was directed at McBride, (3) McBride feared for his safety and fired back, (4) he met force with force, (5) he escaped when Harrison stopped shooting, and (5) retreat was not an option because the shooting occurred within seconds and his sole exit was on an open porch and down the stairs.
1. The Law
A defendant is entitled to an instruction on the law of self‑defense if there is some evidence that he intended to use force against another and he did use force, but he did so only because he reasonably believed it was necessary to prevent the other's use of unlawful force. Ex parte Nailor, 149 S.W.3d 125, 132 (Tex. Crim. App. 2004). The accused must show that he relied on the statutory law of self‑defense. See id.; Riddle v. State, 888 S.W.2d 1, 6 (Tex. Crim. App. 1994) (en banc); Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987); Smith v. State, 676 S.W.2d 584, 586‑87 (Tex. Crim. App. 1984) (en banc); Holmes v. State, 830 S.W.2d 263, 265 (Tex. App.BTexarkana 1992, no pet.). However, if the evidence, viewed in the light most favorable to the defendant, does not establish self‑defense, the defendant is not entitled to an instruction on the issue. Nailor, 149 S.W.3d at 132.
In determining whether an accused is entitled to a self‑defense charge, the credibility of the evidence or whether it is controverted or conflicts with other evidence should not be considered. See Woodfox v. State, 742 S.W.2d 408, 409 (Tex. Crim. App. 1987) (en banc); Smith, 676 S.W.2d at 587 (stating that it makes no difference whether the self‑defense evidence is "strong, weak, unimpeached, or contradicted."). The defendant's testimony alone may be sufficient to raise a defensive theory requiring a charge. Warren v. State, 565 S.W.2d 931, 934 (Tex. Crim. App. 1978). The weight of the evidence supporting a self‑defense charge is not material to this determination. Woodfox, 742 S.W.2d at 410. An instruction on self‑defense is not required, if the evidence, viewed in the light most favorable to the defendant, does not establish a case of self‑defense. Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984) (en banc) (citing Barree v. State, 621 S.W.2d 776 (Tex. Crim. App. 1981); Cerda v. State, 557 S.W.2d 954, 958 (Tex. Crim. App. 1977); Dominguez v. State, 506 S.W.2d 880, 882 (Tex. Crim. App. 1974)); see Holmes, 830 S.W.2d at 265.
2. Deadly Force
A component of self-defense is the use of deadly force. Deadly force is a force intended to cause or is capable of causing, as used or intended to be used, serious bodily injury or death. Tex. Pen. Code Ann. ' 9.01 (Vernon 2003). A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Tex. Pen. Code Ann. ' 9.31(a) (Vernon 2003); see also Ward v. State, 143 S.W.3d 271, 272 (Tex. App.BWaco 2004, pet. ref'd). Special rules apply to the use of deadly force. See Tex. Pen. Code Ann. ' 9.31(d) (Vernon 2003). A person is justified in using deadly force against another if: (1) he would be justified in using force against the other under section 9.31; (2) a reasonable person in the actor's situation would not have retreated; and (3) when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of deadly force. Tex. Pen. Code Ann. ' 9.32(a) (Vernon 2003); see also Tex. Pen. Code Ann. ' 9.31(d) (Vernon 2003). "Reasonable belief" is defined as "a belief that would be held by an ordinary and prudent man in the same circumstances as the actor." Tex. Pen. Code Ann. ' 1.07(a)(42) (Vernon Supp. 2005); see Fielder v. State, 756 S.W.2d 309, 319‑20 (Tex. Crim. App. 1988). In determining whether a defendant had a reasonable belief that action was immediately necessary for his protection, the facts and the circumstances must be judged from the viewpoint of the defendant alone. Juarez v. State, 886 S.W.2d 511, 514 (Tex. App.BHouston [1st Dist.] 1994, pet. ref'd). The question of whether the conduct was justifiable is not to be viewed in the light of later events, but by what the defendant reasonably believed at the time. See id., Fitzgerald v. State, 782 S.W.2d 876, 885 (Tex. Crim. App. 1990) (en banc).
The Texas Penal Code justification for self‑defense focuses on the existence of some necessity, the circumstances under which the force was used, the degree of force used, and the type of conduct against which the force was used. Kelley v. State, 968 S.W.2d 395, 399 (Tex. App.BTyler 1998, no pet.). The amount of force used must be in proportion to the force encountered. Id. Deadly force is not immediately necessary if a reasonable person in the position of the defendant would use some available nondeadly method of self‑defense. Id. In such circumstances, a defendant's use of deadly force would not be justified. Id. (citing Tex. Pen. Code Ann. ' 9.32(a)(3) (Vernon 2003)); see Frank v. State, 688 S.W.2d 863, 868 (Tex. Crim. App. 1985); Juarez, 886 S.W.2d at 514.
3. Application
The issue before us is not the truth of McBride's testimony, as that is for the jury. Dyson, 672 S.W.2d at 463. Rather, if such testimony or other evidence, viewed in a light favorable to McBride, does not establish a case of self‑defense, an instruction is not required. See id.
McBride had the right to defend against a reasonable appearance and apprehension of apparent danger to the same extent as against actual danger. Dyson, 672 S.W.2d at 463. However, use of deadly force is justified only when retreat is unreasonable. See Frank, 688 S.W.2d at 868. With respect to the requirement of retreat before using deadly force, viewed from McBride's standpoint, we hold McBride to a standard of reasonable conduct based on his reasonable fear of death or serious bodily injury. See Juarez, 886 S.W.2d at 514. The standard for the trial court to use in determining the reasonableness of retreat before submitting the question to the jury is whether the defendant had a clear and unbridled avenue to escape to which he had easy access. See Dyson, 672 S.W.2d at 464.
Even assuming that McBride was reasonable when confronted with deadly force, we find no evidence that a reasonable person in McBride's circumstances would not have retreated before the gunfight. Rather, we conclude that McBride could have, but refused to, leave the child's clothes outside the motel room without further contact with Harrison, who he considered a threat, armed, and dangerous. When McBride knocked, he was requested to leave but did not. All events considered in the light most favorable to McBride, Harrison shot after McBride attempted to kick in the door, shouted obscenities and a threat, and broke a window pane with his gun. Importantly, McBride's conduct occurred with confessed knowledge that his child was in the motel room.
In sum, McBride knew he was unwelcome and said he considered himself to be in danger; yet, he stayed. He admitted he was armed. He demanded a confrontation with Harrison before any shooting occurred. McBride said he was shot at before he shot, yet he stayed; he did not testify to any attempt to retreat until after Harrison stopped shooting. While we recognize that a defendant's testimony alone may be sufficient to support a justification defense, see Hayes, 728 S.W.2d at 807, it must actually raise the defensive issue before an instruction is proper, see Granger, 3 S.W.3d at 38. We conclude that, viewed in the light most favorable to McBride, the evidence demonstrates that McBride anticipated the event and prepared himself to respond to the occasion. We further conclude that the evidence does not establish a case of self-defense. Thus, a self-defense instruction was not required. We overrule McBride's first point of error.
C. Necessity
By his second point of error, McBride asserts that the trial court reversibly erred by denying a necessity instruction. He maintains that, when Harrison shot first, McBride was required out of necessity to shoot back to defend himself, to prevent being killed or seriously injured. The State responds that the necessity defense does not apply because a legislative purpose to exclude it exists in the retreat requirement of section 9.32.
1. The Law
Self-defense and necessity are independent defenses.[20] Bowen, 162 S.W.3d at 229. Necessity is a statutory defense that exonerates a person's otherwise illegal conduct. Stefanoff v. State, 78 S.W.3d 496, 500 (Tex. App.BAustin 2002, pet. ref'd). Conduct that would otherwise be criminal is justified by "necessity" if: (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly outweighs, under ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear. Tex. Pen. Code Ann. ' 9.22 (Vernon 2003). In addition, a judicially imposed predicate for submission of necessity as a defense requires that a defendant first admit commission of the offense before offering necessity as a justification. See Ford v. State, 112 S.W.3d 788, 793 (Tex. App.BHouston [14th Dist.] 2003, no pet.). The plain language of section 9.22 indicates that the defense of necessity may be applicable in every case unless specifically excluded by the legislature. Bowen, 162 S.W.3d at 229. To determine whether a legislative purpose exists to exclude the defense, we focus on the statute defining the charged offense. Id. In this case, we would focus on section 19.02(b)(1) of the Texas Penal Code. See Tex. Pen. Code Ann. _19.02(b)(1) (Vernon 2003). However, a defendant is entitled to an instruction on necessity if the evidence at trial raised each element of the defense. See Stefanoff, 78 S.W.3d at 499. If the evidence is such that a rational juror could accept it as sufficient to prove a defensive element, then it is said to raise that element. Id. On appeal, evidence in support of a defensive issue is viewed in the light most favorable to the defense. Id. The credibility, source, or strength of the evidence is immaterial to our determination of whether the evidence raises a defense. Id.
Section 9.22(1) of the Texas Penal Code requires the defendant to bring forward evidence that he reasonably believed the prohibited conduct was immediately necessary to avoid imminent harm. Stefanoff, 78 S.W.3d at 500 (citing Johnson v. State, 650 S.W.2d 414, 416 (Tex. Crim. App. 1983)). "Harm" means anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested. Tex. Pen. Code Ann. ' 1.07(a)(25) (Vernon Supp. 2005); Stefanoff, 78 S.W.3d at 500. "Imminent" means something that is immediate, something that is going to happen now. Id. at 501. Reading these definitions together, imminent harm contemplates a reaction to a circumstance that must be the result of a split‑second decision made without time to consider the law. Id. More than a generalized fear of harm is required to raise the issue of imminent harm. Id.
2. Application
McBride maintains that, had he not returned fire, he, not Harrison, would have been killed. Evidence showed Harrison shot at McBride, after McBride refused to leave, threatened to kill Harrison, and attempted entry into the motel room by kicking the door. The attempted entry escalated when McBride, while armed, broke a window pane with his weapon. McBride did not testify that he broke the pane with his weapon in an effort to deter deadly force. He acted after Melissa requested McBride leave and after Harrison spoke with sarcasm but did not use deadly force. If McBride feared for his life by Harrison's statement, he had the opportunity to retreat. He did not. Rather, he told Harrison he was going to kill him. That threat was followed by McBride's first entry into the room when he broke the window pane by using a deadly weapon.[21] That act began the gunfight.[22] Harrison responded with deadly force. The degree of force McBride used, kicking the door and then breaking the window pane with his shotgun, to reciprocate against Harrison's sarcasm was more than what was immediately necessary to protect himself. Indeed, at that point there was no deadly force to protect against. Breaking the window pane with his gun demonstrates that McBride had no need to protect against deadly force. We cannot conclude that a rational juror could accept the evidence as sufficient to prove that immediacy arose when Harrison responded with gunfire, after McBride steadfastly and deliberately maintained his presence outside the room.
While McBride's testimony alone may be sufficient to support a necessity defense, the evidence must raise the defense. See Hayes, 728 S.W.2d at 807; Granger, 3 S.W.3d at 38. The imminent harm component necessitates an immediate, non‑deliberative action made without hesitation or thought of the legal consequence. See Stefanoff, 78 S.W.3d at 501. Even assuming that Harrison was the aggressor, McBride adduced no evidence to show the immediacy of the need to protect against deadly force. See Tex. Pen. Code Ann. _ 9.32(a)(3) (Vernon 2003). Although the jury heard that the gunfight lasted seventeen seconds, there is no evidence with respect to the time McBride spent at the door before it erupted. Given the history of discord between the two, McBride placed himself squarely in a volatile situation. Even assuming further that McBride proved imminent harm, the immediacy component required that he establish facts indicating a reasonable belief that the criminal conduct was immediately necessary to avoid the imminent harm. Tex. Pen. Code Ann. '' 9.22(1), 9.32(a)(3); see Stefanoff, 78 S.W.3d at 501. Viewed in the light most favorable to McBride, the circumstances in which McBride placed himself, as a whole, do not demonstrate the justification defense of necessity. The evidence does not demonstrate the sort of "split‑second" action contemplated in section 9.22(1). We conclude that a necessity instruction was not required.[23] We overrule McBride's second point of error.
III. CONCLUSION
We conclude that instructions on self-defense and necessity were not required on this record. Consequently, the trial court did not err in submitting a charge to the jury without them. We affirm.
ERRLINDA CASTILLO
Justice
Do not publish.
Tex. R. App. P. 47.3(b).
Memorandum opinion delivered and filed
this the 13th day of July, 2006.
[1] See Tex. R. App. P. 47.1, 47.4.
[2] The indictment alleged that, on or about April 11, 2004, McBride intentionally and knowingly caused the death of Bradly Harrison by shooting him with a firearm. See Tex. Pen. Code Ann. __19.02, 19.02(b)(1) (Vernon 2003). A person acts intentionally with respect to the result of his conduct when it is his conscious objective or desire to cause the result. Tex. Pen. Code Ann. ' 6.03(a) (Vernon 2003). A person acts knowingly with respect to the result of his conduct when he is aware his conduct is reasonably certain to cause the result. Id. at ' 6.03(b). Murder is a "result of conduct" offense. Cook v. State, 884 S.W.2d 485, 490 (Tex. Crim. App. 1994). Murder is the voluntary or intentional killing of a person without justification or excuse. See Becks v. State, 254 S.W.2d 396, 398 (1953). The word "voluntarily" carries with it the "intention" to commit the offense charged. Id.
[3] See Tex. Pen. Code Ann.__ 9.02, 9.22, 9.31, 9.32 (Vernon 2003).
[4] McBride's videotaped and written statements were admitted in evidence.
[5] McBride owned a vehicle body repair shop and a tow truck business. He was delayed by two calls, one involving a locked vehicle. Feeling guilty, he said, for the delay in arriving at the beach, he declined a third call.
[6] Testimony showed the child had soiled her clothes and Melissa did not have a change of clothes for her.
[7] Melissa testified she called Harrison from the convenience store. She further testified that he was angry with her for being at the beach.
[8] Photographs in evidence show the motel is on stilts with a walkway in front of the six rooms and a staircase at either end. The manager and one owner occupied two of the rooms.
[9] He testified that "the whole motel thing didn't make any sense."
[10] Evidence showed he had eight to ten boxes of ammunition.
[11] She testified that the gun was on the bed between them. She stated that Harrison was mad because he did not want to be there.
[12] The record is silent with respect to what McBride heard Harrison say.
[13] McBride testified that, through the blinds and curtains he saw Melissa carrying Allison into the bathroom.
[14] Located near him, Harrison's weapon was empty. Two spent shells from his weapon were retrieved. McBride theorized that evidence of the third shot was the bullet damage to the lattice panel bordering the walkway. He further theorized that, because at least five people were in the room immediately after the shooting, the third spent shell from Harrison's weapon was lost or removed.
[15] McBride's statement to police states:
I tried to open the door and it was locked and then I tried to kick in the door and Melissa told me to just leave. That was par for the course. Then Brad said something sarcastic . . . and I knocked out the window with the barrel of the shotgun and I saw the shot come through the window. I felt it and I heard it. I do not know what kinda gun it was. I shot in the window with the shotgun. I shot once angled over towards the door. I saw everyone moving around. I cannot say for sure but I believe Melissa took the baby to the bathroom. Then Brad shot again and I shot again at him towards the middle of the room. Then it looked like Brad was headed towards the bathroom and shot at me again. I shot at him again as he was going towards the bathroom.
[16] The jury heard that the shooting lasted seventeen seconds.
[17] At some point, Melissa carried Allison into the bathroom and called 911. The 911 tape was played for the jury and admitted in evidence. A State's expert testified that he could not discern the number of gunshots audible on the tape. We have reviewed the tape and the number of gunshots is not discernable.
[18] The jury heard that McBride pulled Melissa out of Harrison's car on a morning after the two spent the night together, pulled a knife to stave off Harrison, and later rammed Harrison's vacant vehicle.
[19] When McBride admitted he struck Melissa with the telephone on the date in question, he also testified that he left a mark where Harrison had previously fractured her eye socket.
[20] The Texas Court of Criminal Appeals has recognized the independence of separate defenses by holding that a defendant is entitled to the submission of every defensive issue raised by the evidence, even if the defense may be inconsistent with other defenses. Bowen v. State, 162 S.W.3d 226, 229 (Tex. Crim. App. 2005). In Bowen, the Court reaffirmed this principle by holding that self-defense's statutorily imposed restrictions do not foreclose necessity's availability. Id. at 230.
[21] A firearm is a deadly weapon. See Tex. Pen. Code Ann. _1.07(17) (Vernon Supp. 2005).
[22] We note that a person who would otherwise be entitled to act in self‑defense forfeits the right to defend himself if he provoked the other's use or attempted use of unlawful force. Tex. Pen. Code Ann. ' 9.31(b)(4) (Vernon 2003). A charge on provoking the difficulty is required when the evidence shows (1) that the defendant did some act or used some words which provoked the attack on him, (2) that such act or words were reasonably calculated to provoke the attack, and (3) that 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 upon the other. Smith v. State, 965 S.W.2d 509, 513 (Tex. Crim. App. 1998) (en banc). We need not and do not decide whether McBride provoked Harrison because it is neither raised nor dispositive. See Tex. R. App. P. 38.9, 47.1.
[23] We are mindful that, had the jury received a justification instruction, the jury would be free to interpret the evidence in such a way that would support a finding of self‑defense, or a finding of necessity but not self‑defense, or a finding of neither self‑defense nor necessity. See Bowen, 162 S.W.3d at 229. The trial court's failure to instruct the jury on either defense precluded the interpretation with respect to the evidence in this case. However, McBride has the burden to prove harm by the trial court's failure to instruct the jury. See Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994) (en banc) (holding that the burden lies with the appellant to persuade the reviewing court that the error was harmful.) If the appellant is unable to do so, the error will not result in reversal. Id. McBride has not demonstrated harm.