Cesar Alejandro Gamino v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-14-00356-CR

CESAR ALEJANDRO GAMINO APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
TRIAL COURT NO. 1337520D

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OPINION

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A jury found Appellant Cesar Alejandro Gamino guilty of aggravated

assault with a deadly weapon and assessed his punishment at four years’

confinement in the penitentiary and a $2,000 fine. The jury further recommended

that Appellant’s sentence be suspended and that he be placed on community

supervision. The trial court entered judgment accordingly and placed Appellant

on community supervision for a period of ten years. In two issues, Appellant
asserts the trial court erred by refusing to give a jury instruction on self-defense

and erred in refusing to allow him to cross-examine the complainant and a police

officer regarding the disposition of the public intoxication charges against the

complainant. We sustain Appellant’s first issue, reverse the trial court’s

judgment, and remand the cause to the trial court for a new trial. Because

Appellant’s first issue disposes of his appeal, we need not address his second

issue.

Evidence

Oscar Flores, a Fort Worth Police officer, testified he was working off-duty

for City Center Security in Sundance Plaza on August 11, 2013, and was in a

downtown Sundance Square parking lot on a bicycle with another off-duty officer

and two City Center security officers around 1:30 a.m. The bars were closing,

and the area was crowded as people were walking to their cars. The area was

noisy with people talking and laughing, but he heard arguing and yelling, and

someone said, “Yeah, well, I got something for you.” Officer Flores said he

turned around and saw Appellant walk over to the driver’s side of a pickup truck

and take something out. He said the officers all assumed that Appellant was

going after a weapon. Officer Flores saw Appellant come out with a pistol in his

hand. Officer Flores said he thought Appellant was going to shoot some people

standing on the sidewalk, so Officer Flores drew his gun as he saw Appellant’s

gun coming up. He looked over at the sidewalk and saw several people backing

up, “like, whoa,” and saw that the complainant and his friends were putting their

2
hands in the air. Officer Flores testified he was close to shooting Appellant and

was actually pulling back on the trigger of his own gun when he saw a woman

get out of the passenger door and walk toward the rear of the pickup along with

Appellant, so he decided not to shoot for fear of accidentally striking someone

else. Officer Flores ordered Appellant to drop the gun and testified that Appellant

immediately lowered the weapon and did not present any kind of aggressive

stance. Officer Flores said he knew at that point that Appellant was going to

comply with his orders. After Appellant turned around and put the pistol on the

driver’s seat of the pickup, Officer Flores ordered him to put his hands up, and

Appellant put his hands up as ordered. Officer Flores said he had to tell

Appellant a few times to get on the ground, but Appellant complied, and the

police placed Appellant in handcuffs.

Officer Flores recalled that when detained, Appellant said, “Well, he was

talking shit.” Officer Flores said “talking shit” to someone did not give that person

the right to pull a gun. He confirmed that a person, including a police officer, is

only allowed to use deadly force against another when the other person presents

a threat of deadly force or a risk of serious bodily injury. On cross-examination,

Officer Flores said whether a person had the right to protect himself depended on

the situation.

Officer Flores described the persons on the sidewalk as scared and said

that one person, identified as the complainant, told him that he was in fear for his

life and thought he was going to be killed. But the police also had problems with

3
the alleged complainant, Mohamad Khan. Officer Flores acknowledged that

Khan kept interfering with the armed police officers and with the security officers,

who were armed with tasers and pepper spray. The police report described

Khan as a danger to both himself and to others. While Officer Flores and two

other officers were taking Appellant into custody, Khan caused a disturbance.

Khan was arrested at the scene for public intoxication.

Officer Flores determined that the gun was a Glock subcompact, loaded

with a round in the chamber, the same type of gun used by police, and confirmed

that Appellant possessed a concealed handgun license. He noticed Appellant

also had signs of intoxication, including heavy, bloodshot, and watery eyes,

slurred speech, and a strong odor of an alcoholic beverage on his breath and

person. Officer Flores performed an HGN test on Appellant and noted six clues,

three for each eye, which was the maximum number. Appellant was parked in a

handicapped parking area, and Officer Flores recalled that Appellant mentioned

that he had problems with his back and may have been taking medications for

that problem, but he could not recall specific medications that Appellant told him

he was taking. Officer Flores acknowledged it was possible that both medical

conditions and medications could cause the HGN results.

Detective Kynrick Koralewski, also with the Fort Worth Police Department,

was also working bike patrol that night in an off-duty capacity for Bass security at

Sundance Square. Detective Koralewski testified that he, Officer Flores, and the

two other security employees in the parking lot in the Sundance Square area that

4
evening heard someone say in a fairly loud, aggravated voice, “I got something

for you.” Detective Koralewski saw Appellant, who had a girlfriend with him.

When Officer Flores said, “He’s got a gun,” Detective Koralewski dismounted

from his bike, turned around, also saw Appellant with the gun, and drew his

service revolver. Detective Koralewski testified that he saw Appellant pointing

the gun at another male. Detective Koralewski thought he was going to have to

shoot someone, but Appellant went back to his pickup, placed the gun in the

truck, and went to the ground, where police handcuffed him.

Detective Koralewski said alcohol affects a person’s judgment, and putting

a gun in the hands of someone who has had alcohol was a very volatile situation.

Detective Koralewski said that, as an officer, he was allowed to draw his gun only

when there was a threat of imminent force in a life or death situation. He was not

allowed to pull his gun when someone merely smarted off to him or verbally

provoked him. By “imminent,” he meant something that was about to happen

and not something off in the future.

Khan, the complainant, testified that on the night in question, he was

celebrating a friend’s birthday along with a third person he had met that night.

They went to a couple of bars and then, around 1:30 a.m., they sat down by the

street on a concrete planter under a tree. Khan explained he was quoting some

lines from the movie, “Boondock Saints,” that involved lewd conduct with a

woman. He said it was meant just for his friends’ ears and was embarrassed that

other people might have overheard him. Appellant, who was walking by with a

5
female, started yelling at him and asked him what he had said. Khan testified

that he was confused at first and told Appellant that he was not talking to him and

to just keep walking. He said Appellant responded, “Oh, I got something for you,

I got something for you.” Khan denied attempting to assault Appellant or the

person Appellant was with. Khan said Appellant walked to a parked car, opened

the door, shuffled around inside, pulled out a gun, and started yelling, “Say

something else, say something else.” Khan threw his hands up. He thought

Appellant was going to shoot him, and he was in fear for his life. He believed

Appellant’s demeanor showed that he was capable of pulling the trigger. Khan

said he told Appellant that he needed to chill out, and moments later a number of

police officers ran up, told Appellant to get down on the ground, and ordered

Appellant to drop his weapon. Khan said he was happy—“ecstatic”—that the

police were there, but the police later arrested him as well; Khan testified that the

charge against him was later dismissed.

Z.W. testified that he, Khan, and a third friend had been “just hanging out

and going to bars” on the night of the incident, celebrating Z.W.’s birthday.

Around 1:30 a.m. on August 11, 2013, they left a bar, headed toward their car,

and sat down on the concrete seat of a planter under a tree near a parking lot.

The three of them were quoting lines from the movie, “Boondock Saints.” After

Khan had said one of the lines, Appellant, who was walking by with a woman,

turned around and asked, “What the hell did you say?” They told Appellant that

they were not talking to him. Z.W. said Appellant responded with profanity and

6
then went to his car and pulled out a gun on them. The police responded

immediately and told him to drop the gun. Z.W. estimated that Appellant was

only ten to fifteen feet away from them when he pulled out the gun. Z.W. was

afraid Appellant was going to use the gun to cause imminent bodily injury at the

very least. Z.W. said he was still sitting down. Z.W. said that none of them were

armed and that no one tried to touch Appellant or his girlfriend. Z.W. denied that

Khan threatened Appellant in any way. After the incident, Z.W. said Khan got up

and was angry, and although both the police and Z.W. told Khan to sit down and

be quiet, Khan would not follow anyone’s instructions.

Josh Burris worked as a security officer in the Sundance Square area of

downtown Fort Worth. He was working the early morning of August 11, 2013,

and testified that between 1:30 and 1:40 a.m., while on duty in the parking lot

where he was patrolling along with Officers Lopez, Koralewski, and Flores, he

heard someone yell, “I’ve got something for you.” Officer Burris said the person

sounded angry, and he added, “It usually is something you don’t hear unless

there’s an altercation coming up.” He saw Appellant walk towards his vehicle

three or four steps, open the driver’s door, lean in, and reach underneath the

driver’s seat. Appellant came out of the car with a handgun in his hand, turned,

and started walking toward the sidewalk with the gun up in the air pointing

straight ahead of him at some individuals. One of the individuals raised his

hands like he was surrendering. Officer Flores and Detective Koralewski pulled

their weapons, moved toward the group, and pointed their guns at Appellant.

7
They ordered Appellant to drop the gun and get on the ground, and they got the

situation under control. Officer Burris said Appellant, when pointing the gun and

advancing on Khan, held it in an aggressive stance and described it as a trained

position. Officer Burris said that when the other officers told Appellant to drop the

weapon, Appellant did not comply immediately but turned and went about six feet

back to his car to place the gun there.

V.R. testified that she was with Appellant on the night of August 10 and 11,

2013, in downtown Fort Worth. V.R. had known Appellant for eight years. She

testified that after coming back from overseas, Appellant had two back surgeries.

Appellant also had failed knees and shoulders. She explained that Appellant

was “disabled.” On that particular night, they went out to have dinner downtown

with a friend Appellant had been stationed with and his girlfriend and then

headed to a dance club. When Appellant and V.R. left there, she said they

headed for the car and came across three men. One of them stood up, moved

towards her, and threatened to assault her. She testified that the man said he

would sodomize her. She retreated from the man and tried to walk around to the

other side while Appellant went to the pickup. V.R. said she did not know what

happened next; she just heard the police telling her to get down. V.R. said that

after two major back surgeries, Appellant was not able to fight, so he carried a

gun. She said Appellant had a license to carry a gun. V.R. said there were three

men, but only one threatened her, and she testified that she feared for her life.

However, she denied that the man threatened to beat or harm her.

8
 Appellant testified that on the evening of August 10, 2013, he took his

friend and his friend’s girlfriend out to see the town. They drove around first and

then decided to have a bite to eat at Ojos Locos, a downtown restaurant. After

they ate, he said they went to a dance club behind the restaurant, where he had

one drink. Appellant acknowledged taking his back-pain medication much earlier

that day and agreed that mixing his medications and alcohol was not a good idea

“if you’re chasing one with the other.” Appellant denied being intoxicated.

While returning to his vehicle, he encountered three men. Appellant

testified that the men threatened both him and his girlfriend. Asked to describe

the threats, he said, “Well, they threatened that they would grab her ass and they

would F her if they wanted to and that they would kick my ass and I wasn’t going

to do anything about it.”

Appellant testified that he retreated but made sure his girlfriend was safe,

and then he approached his vehicle. Appellant said one of the individuals stood

up and came at him, and that was when he reached into his vehicle, grabbed his

gun, and said, “Stop, leave us alone, get away from us.” Appellant testified that

when the man saw the gun, he did something with his hands, sat down, and did

not say anything. Appellant said he told the man to have a good night, turned

around, and placed his weapon back in his vehicle. Appellant testified that it was

at this point that the police approached him and told him to get on the ground.

When asked if he had the time to shoot the individual who came at him,

Appellant answered, “If it was up and pointed, yes. But it—as soon as he

9
retreated, no. I mean, I just wanted to eliminate the threat at that moment.”

Appellant testified that after the threat was over, he just wanted to go home.

Appellant said the police showed up at this point, put him on the ground, and put

him in handcuffs. Appellant denied resisting the police and said, “I didn’t think I

did anything wrong.”

Appellant testified that after the individual made the threats, Appellant and

his girlfriend were scared. Appellant acknowledged that the man did not threaten

to beat him right away, did not threaten him with deadly force, did not threaten to

beat up his girlfriend, and did not threaten to use deadly force on her. Appellant

admitted not seeing a gun or a knife. Appellant admitted Khan never touched

him or his girlfriend. Appellant said it was fair to say Khan said something he did

not like. Appellant denied ever saying, “I’ve got something for you.” Appellant

acknowledged he retrieved his gun from underneath the seat and pulled it out,

but he denied pointing it.

Appellant testified that he was taught not to use a gun when intoxicated

and taught to exhibit a gun only when met with deadly force or in fear of imminent

bodily injury or serious bodily injury. Appellant agreed that it was not okay to pull

a gun on someone just because the other person said something he did not like,

but he added that it changed when someone threatened to physically assault or

hurt another person. Appellant testified that the men threatened to use deadly

force on him. He explained, “They said they were going to kick my ass.” When

asked if that was deadly force, Appellant answered, “And it’s three of them and

10
I’m one person that’s disabled.” Appellant agreed that deadly force meant pulling

a gun. Appellant acknowledged the men had no weapons that he knew of.

When asked if he was the only one who pulled a gun that night, he answered,

“Yes, because I felt like my life was in danger. I felt like the safety of my fiancée

was in danger.”

Appellant denied that he felt that way because of what they said; he

testified that it was because of their actions. “When he stood up and approached

me in an aggressive manner, that was when I drew my weapon. That’s when I

held it up to my side and I held my hand up and said, [‘]Get back, leave us

alone,[’] and that was when he retreated.”

Appellant admitted he told the officer he pulled his gun because Khan was

“talking shit,” but Appellant denied that was all that he told the officer. Appellant

testified that he told the officer that Khan also said he was going to assault him.

Appellant testified that while he was on the ground, Khan kept taunting him

and kept jumping towards him. Appellant said he repeatedly told the officer that

Khan was the guy who was threatening him and his girlfriend. Appellant was

able to tell another officer what happened, and that officer informed him that they

were arresting Khan as well. Appellant testified he pulled his weapon in self-

defense.

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 First Point: Trial Court’s Failure to Submit Self-Defense in Jury Charge

In Appellant’s first point, he contends the trial court erred by overruling his

request that self-defense be included in the jury charge. The State does not

dispute that Appellant preserved the error.

Whether there was error.

A defendant is entitled to an instruction on any defense supported by the

evidence, even if the evidence is weak, contradicted, or lacks credibility. Shaw v.

State, 243 S.W.3d 647, 658 (Tex. Crim. App. 2007), cert. denied, 553 U.S. 1059

(2008). Under the confession-and-avoidance doctrine, however, a defensive

instruction is appropriate only when the defendant admits to every element of the

offense and interposes the justification to excuse the otherwise criminal conduct.

Id. at 659; Ex parte Nailor, 149 S.W.3d 125, 132–33 (Tex. Crim. App. 2004). To

raise the issue of self-defense, the accused must admit the conduct charged in

the indictment and then offer self-defense as a justification for the action. Hill v.

State, 99 S.W.3d 248, 250–51 (Tex. App.—Fort Worth 2003, pet. ref’d) (stating

self-defense instruction required defendant admit charged conduct); Anderson v.

State, 11 S.W.3d 369, 372 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)

(stating that to raise issue of self-defense, defendant must admit he committed

offense). As a justification for actions taken, self-defense is inconsistent with a

denial of the conduct. East v. State, 76 S.W.3d 736, 738 (Tex. App.—Waco

2002, no pet.).

12
 Both sections 9.31 and 9.32 of the penal code are self-defense statutes

with the difference being that section 9.31 addresses the use of force in self-

defense and section 9.32 addresses the use of deadly force in self-defense.

Section 9.31 is specifically entitled, “Self-defense.” Tex. Penal Code Ann. § 9.31

(West 2011). Section 9.32 is entitled, “Deadly Force in Defense of Person.” Tex.

Penal Code Ann. § 9.32 (West 2011). When referring to “self-defense,” we are

referring to section 9.31. When referring to the “deadly-force-in-defense-of-

person defense” or to “self-defense with deadly force,” we are referring to section

9.32.

The State’s position is that because Appellant used a deadly weapon, it

necessarily follows Appellant used deadly force, which necessarily placed

Appellant under section 9.32 rather than section 9.31. Tex. Penal Code. Ann.

§§ 9.31, 9.32. The State contends that because Appellant was restricted to the

deadly-force-in-defense-of-person defense under section 9.32, Appellant had to

show that he reasonably believed Khan was either using or attempting to use

deadly force. Tex. Penal Code Ann. § 9.32(a)(2)(A). The State then argues that

Appellant could never show that Khan used or attempted to use deadly force.1

1
The State’s reliance on Bedolla v. State, 442 S.W.3d 313 (Tex. Crim. App.
2014), and Jackson v. State, 288 S.W.3d 60 (Tex. App.—Houston [1st Dist.]
2009, pet. ref’d), is not persuasive. In both cases, there was no discussion
regarding whether the defendant’s use of deadly force otherwise disqualified him
from receiving the section 9.32 instruction because the complainant had not used
or attempted to use deadly force.

13
 The State’s position ignores section 9.04 of the penal code, which

provides:

The threat of force is justified when the use of force is justified by
this chapter. For purposes of this section, a threat to cause death or
serious bodily injury by the production of a weapon or otherwise, as
long as the actor’s purpose is limited to creating an apprehension
that he will use deadly force if necessary, does not constitute the
use of deadly force.

Tex. Penal Code Ann. § 9.04 (West 2011).2 If section 9.04 applies, then the use

of a gun does not constitute “deadly force,” and, therefore, section 9.32 would

become inapplicable. Tex. Penal Code Ann. § 9.32 (“Deadly Force in Defense of

Person”). If section 9.04 applies, then the use of the gun would, by default, be

the use of “force” in self-defense, and section 9.31 would be the applicable

provision. Tex. Penal Code Ann. § 9.31 (defining when the use of force is

justified in self-defense). In a footnote and in his reply brief, Appellant directs us

to Reynolds v. State, 371 S.W.3d 511, 514, 522 (Tex. App.—Houston [1st Dist.]

2012, pet. ref’d), as an example of the use of section 9.04 in this manner.3 For

our purposes, Appellant is correct that the defendant in Reynolds, who was

under the mistaken impression that his friend was about to be attacked by a

group of people, used a gun in an attempt to frighten the group into leaving; he

2
Although Appellant cites section 9.04 in his brief, the State never
addresses it in its brief.
3
The State does not address Reynolds.

14
nevertheless got a self-defense instruction under section 9.31 apparently by

virtue of section 9.04.4 Id.

The State also argues that Appellant was not entitled to an instruction on

self-defense because Appellant denied committing aggravated assault as

charged in the indictment. Specifically, the State contends that although

Appellant admitted using the gun, he otherwise denied making any threats. For

example, Appellant denied saying, “I’ve got something for you,” but claimed he

said instead, “Leave us alone.” The State also argues that by denying he pointed

the gun at anyone, Appellant was denying he threatened anyone. We disagree.

The State alleged in the indictment that Appellant used or exhibited a gun to

threaten Khan with imminent bodily injury.5 Appellant admitted pulling out and

exhibiting the gun for the purpose of discouraging Khan from attacking him and

his girlfriend. The display of a deadly weapon constitutes a threat. Sosa v.

4
The jury instructions encompassed self-defense under section 9.31 and
defense of third person under section 9.33 of the penal code; the defense of third
person instructions, for their part, used elements of section 9.31 (self-defense)
and of section 9.32 (deadly force in defense of person). Id at 523; see Tex.
Penal Code Ann. §§ 9.31–.33 (West 2011). The actual issue in Reynolds was
whether the trial court erred by not submitting a section 9.04 instruction; the court
held the trial court erred but the error was harmless. Reynolds, 371 S.W.3d at
521–25.
5
In its indictment, the State alleged that Appellant intentionally or knowingly
threatened imminent bodily injury to Khan and, further, that Appellant used or
exhibited a deadly weapon during the commission of the assault, to-wit: a
firearm. Tex. Penal Code Ann. §§ 22.01(a)(2) (West Supp. 2014), 22.02(a)(2)
(West 2011).

15
State, 177 S.W.3d 227, 231 (Tex. App.—Houston [1st Dist.] 2005, no pet.).

Nothing in the indictment required Appellant to point the gun at Khan. Nothing in

the indictment required the threat to be communicated verbally or by a particular

use of the gun. Appellant was not required to concede the State’s version of the

events. “[T]he defendant has the right to controvert the facts upon which the

prosecution intends to rely, and that right includes claiming that events unfolded

in a way different than the State has alleged.” Bufkin v. State, 207 S.W.3d 779,

781–82 (Tex. Crim. App. 2006).

The State also relies on Isaacson v. State, No. 03-10-00866-CR, 2013 WL

1955799 (Tex. App.—Austin May 10, 2013, pet. ref’d) (mem. op., not designated

for publication), but its reliance on it is misplaced. In that case, the application

paragraph required the jury to find that the defendant pointed the gun at the

officers, but the defendant specifically denied pointing the gun at them. Id. at *3.

Additionally, the defendant was required to know that he was committing an

aggravated assault on a public servant, but the defendant specifically denied

knowing the complainants were peace officers. Id. Finally, the defendant

admitted exhibiting a gun but denied threatening anyone in any manner. Id. It

was in that context that the court wrote:

The only aspect of the charged offense he admitted was exhibiting a
handgun in the presence of others, which is not necessarily an
offense—much less an assaultive one. His admission that he
exhibited a weapon did not pass the threshold of admission that
requires a court to provide a self-defense instruction to the offense
of aggravated assault of a public servant.

16
Id. In contrast, Appellant’s version of the events shows that he got and displayed

the gun for the express purpose of discouraging Khan’s attack, that is, he

admitted the conduct alleged in the indictment.

Both Appellant and his girlfriend said Khan threatened to sexually assault

her. Appellant said the men also threatened to “kick his ass.” Both Appellant

and his girlfriend said one of the men got up and moved towards them, and both

Appellant and his girlfriend said they were afraid for their lives. Both Appellant

and his girlfriend were aware that Appellant, because of his surgeries, could no

longer fight. Both were aware they were dealing with a group of three men.

Appellant admitted grabbing his gun. Appellant said he just wanted to eliminate

the threat and go home. Appellant said he pulled his gun based upon Khan’s

actions: “When he stood up and approached me in an aggressive manner, that

was when I drew my weapon.” A person commits an assault if the person

intentionally or knowingly threatens another person with imminent bodily injury.

See Tex. Penal Code Ann. § 22.01(a)(2). A person is entitled to act in self-

defense to an assault. See Tex. Pen. Code Ann. § 9.31(a) (“[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.”);6 Bufkin v. State, 179

6
Under specified circumstances the actor’s belief that force was
immediately necessary is presumptively reasonable. Tex. Penal Code Ann.
§ 9.31(a)(1)–(3). We do not have to decide if Appellant’s belief was entitled to
this presumption.

17
S.W.3d 166, 169–70 (Tex. App.—Houston [14th Dist.] 2005), aff’d, 207 S.W.3d

779 (Tex. Crim. App. 2006); Sterry v. State, 959 S.W.2d 249, 253–54 (Tex.

App.—Dallas 1997, no pet.); see also Cedillo v. State, No. 02-09-00388-CR,

2011 WL 476859, at *2–4 (Tex. App.—Fort Worth Feb. 10, 2011, no pet.) (mem.

op., not designated for publication). Appellant effectively described an assault

committed by Khan against him. Appellant described drawing his gun to defend

himself and his girlfriend, and, as explained earlier, simply drawing a gun can

constitute “force” and not “deadly force.” See Tex. Penal Code Ann. § 9.04.

Appellant gave contradictory answers regarding whether the threat to him

was imminent. He said Khan did not threaten to beat him right away. Regarding

any verbal threats, that was true. On the other hand, he described Khan

approaching him in an aggressive manner after Khan had made the verbal

threats, and Appellant described himself as fearing for his life. A jury could have

reasonably inferred from his testimony that when Khan got up and started to

approach him, he believed he was in imminent danger and feared for his life.

Appellant was entitled to the instruction regardless of whether the evidence was

weak or contradictory. See Shaw, 243 S.W.3d at 658.

The police arrested Khan for public intoxication, and the police report

described Khan as a danger to both himself and others. If Khan was so

intoxicated and if Khan’s behavior after the police were on the scene was

sufficiently dangerous to himself and others to be noted in the police report, it

would not be irrational to question whether Khan was intoxicated and exhibiting

18
dangerous behavior only moments before the police arrived at the scene. Put

another way, if Khan was sufficiently intoxicated and dangerous in the presence

of the police to get arrested, what was his behavior like before the police were on

the scene? The presence of police normally acts as an inhibiting factor. In

Khan’s case, it did not. There was some testimony suggesting Khan’s behavior

may have been limited to after the police arrived and was due to his having just

been threatened by a gun. That might well be true, but it was the jury’s decision

whether to believe it.

Appellant was entitled to the instruction regardless of whether the evidence

was feeble, contradicted, or not credible. See Reynolds, 371 S.W.3d at 521–22.

We are required to view the evidence in the light most favorable to the

defendant’s requested submission. See id. at 522. Whether a defendant’s

beliefs were reasonable under the circumstances is a fact question for the jury to

decide and not a preliminary question for the trial court to resolve when

determining whether the defense was raised. See VanBrackle v. State, 179

S.W.3d 708, 713 (Tex. App.—Austin 2005, no pet.); see also Hamel v. State, 916

S.W.2d 491, 493 (Tex. Crim. App. 1996) (“A person has the right to defend

himself from apparent danger to the same extent as he would if the danger were

real.”). When it comes to whether defensive theories are raised, the usual

deference to the trial court’s rulings does not apply; just the reverse, appellate

courts view the evidence in the light most favorable to the defendant’s requested

submission. See Bufkin, 207 S.W.3d at 782. Viewing the evidence in the light

19
most favorable to Appellant, Appellant reasonably believed his use of force was

immediately necessary to protect himself against Khan’s use or attempted use of

unlawful force, and Appellant produced his gun for the limited purpose of creating

an apprehension that he would use deadly force if necessary. We hold that

under Appellant’s version, his use of a deadly weapon did not constitute the use

of deadly force and that Appellant was not disqualified from receiving a self-

defense instruction notwithstanding the fact he was charged with aggravated

assault with a deadly weapon. See Tex. Penal Code Ann. § 9.04; Reynolds, 371

S.W.3d at 521–25. Accordingly, the trial court erred by not submitting an

instruction on self-defense.

Whether there was harm.

Error in the charge, if timely objected to in the trial court, requires reversal

if the error was “calculated to injure the rights of [the] defendant,” which means

no more than that there must be some harm to the accused from the error. Tex.

Code Crim. Proc. Ann. art. 36.19 (West 2006); Abdnor v. State, 871 S.W.2d 726,

732 (Tex. Crim. App. 1994); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

App. 1985) (op. on reh’g); see also Reeves v. State, 420 S.W.3d 812, 816 (Tex.

Crim. App. 2013). In other words, a properly preserved error will require reversal

as long as the error is not harmless. Almanza, 686 S.W.2d at 171. This analysis

requires a reviewing court to consider (1) the jury charge as a whole, (2) the

arguments of counsel, (3) the entirety of the evidence, and (4) other relevant

factors present in the record. Reeves, 420 S.W.3d at 816; see also Almanza,

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686 S.W.2d at 171 (“[T]he actual degree of harm must be assayed in light of the

entire jury charge, the state of the evidence, including the contested issues and

weight of probative evidence, the argument of counsel and any other relevant

information revealed by the record of the trial as a whole.”). The presence of

“any harm, regardless of degree,” is sufficient to require reversal. Arline v. State,

721 S.W.2d 348, 351 (Tex. Crim. App. 1986).

Before trial, the trial court sustained the State’s motion in limine as to any

mention of Khan’s alcohol or drug use, any mention of Khan’s arrest for public

intoxication, and any mention regarding why the charge of public intoxication

against Khan was dismissed. Appellant argued that Khan’s intoxication was “the

whole ballpark” and that without the testimony showing Khan’s intoxication, he

would not be able to explain his reactions to the danger Khan presented.

Appellant concluded, “Ours is a self[-]defense issue.” During opening

arguments, the State expressly told the jury that self-defense was not present in

this case. The jury charge contained no self-defense instructions. During closing

arguments, the State emphasized what was and what was not in the charge:

The Judge just read you the charge, the law that controls the case.
The point I want to make to you is, is that for your consideration is
whether or not the Defendant is guilty of pointing a firearm. And you
know he is.

What’s not before your consideration and what I will shut down
quickly is if anybody gets up and starts trying to claim self[-]defense.
Self[-]defense is not part of this case.

The law is contained in this charge and that’s the law that governs.

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For his part, Appellant argued, “We’re asking that, after reviewing the facts, to

find that [Appellant] was not the aggressor but reacting to [Khan] and find

[Appellant] not guilty beyond a reasonable doubt. Remember we said if you have

one doubt based on reason, that is a reasonable doubt.” Appellant was

attempting to re-insert self-defense into the analysis. However, without a self-

defense instruction in the charge, even if the jury agreed with Appellant’s version

of the facts, it was still required to find him guilty.

The State also argued in its final arguments: “So we ask you to return a

verdict of guilty. It’s clear. There’s nothing to this case as far as a question

about whether he’s guilty. It’s as easy as it gets.” We agree. Without any self-

defense instructions, it was as easy as it gets. Appellant admitted committing the

aggravated assault with a deadly weapon to the jury. There was nothing for the

jury to decide. The jury never got to decide the one defense Appellant had to

offer.

Khan and Appellant agreed that Appellant pulled a gun on him. With the

self-defense instruction, the case turned on whether the jury believed Khan’s

version or Appellant’s version of the events. In Khan’s version, he was

exchanging crude jokes with his friends that Appellant overheard and

overreacted to by pulling a gun on them. In Appellant’s version, Khan, while with

two other men and while sufficiently intoxicated to later be arrested for public

intoxication, verbally threatened to sexually assault Appellant’s girlfriend and to

physically assault him and, moments later, Khan stood up and approached

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Appellant in an aggressive manner that made both Appellant and his girlfriend

fear for their lives; in response, Appellant pulled his gun to discourage any further

aggression from Khan and his friends. Under the charge given to the jury,

Appellant lost under both versions because Appellant’s use of a gun constituted

the unwarranted use of deadly force. Nothing in the charge provided that

Appellant’s conduct might have been justified or excused for any reason. See

Chase v. State, 418 S.W.3d 296, 301–02 (Tex. App.—Austin 2013), aff’d, 448

S.W.3d 6 (Tex. Crim. App. 2014).

Regarding the testimony of the police officers, none of them saw what

preceded Appellant’s pulling his gun. Under the police officers’ testimony,

Appellant threatened Khan with a gun in a more violent manner than under

Appellant’s version. Appellant’s version was perhaps more consistent with the

application of section 9.04 of the penal code. Regardless, it was the jury’s call

whom to believe and what to believe. It was not the trial court’s prerogative to

preempt the issue because it thought Appellant’s version was weak,

contradicted, or not credible. See Shaw, 243 S.W.3d at 658; see also Bufkin,

179 S.W.3d. at 169 (“As the trier-of-fact, the jury is the sole judge of the

credibility of the witnesses and is free to believe or disbelieve all, part, or none of

any witness’[s] testimony.”); Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App.

1999) (“This rule is designed to insure that the jury, not the judge, will decide the

relative credibility of the evidence.”); Sterry, 959 S.W.2d at 253 (“The jury is the

sole judge of the credibility of the witnesses and the weight given their

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testimony.”). We hold Appellant suffered harm. We sustain Appellant’s first

point.

Conclusion

Because we sustained Appellant’s first point regarding a self-defense

instruction under section 9.31, resolution of whether he was also entitled to a

self-defense-with-deadly-force instruction under section 9.32 is unnecessary. At

a minimum, Appellant was entitled to a section 9.31 instruction. Because we

have found reversible error in Appellant’s first point, resolution of his second

point is not necessary to the final disposition of this appeal. Accordingly, we

need not address the section 9.32 portion of his first point or his second point.

See Tex. R. App. P. 47.1.

Having sustained Appellant’s first point, we reverse the judgment of the

trial court and remand the cause for a new trial.

/s/ Anne Gardner
ANNE GARDNER
JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

PUBLISH

DELIVERED: November 12, 2015

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