IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0119-16
JOHN CHRISTOPHER IVY, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SEVENTH COURT OF APPEALS
HAYS COUNTY
Per curiam. Keller, P.J., dissents.
OPINION
Appellant and the complainant were in a dating relationship when the two became
involved in a physical altercation over the complainant’s cell phone. Ivy v. State, No. 07-
15-00023-CR (Tex. App.–Amarillo Jan. 5, 2016)(memorandum opinion not designated
for publication). The complainant testified that appellant snatched the phone out of her
hands because he believed she was “snapchatting” or sending nude photos of herself to
IVY PD-0119-16 – 2
other men. Appellant left the room with the phone and the complainant followed. The
complainant caught up with appellant, pushed him, and slapped him one or two times to
try and get her phone back. Appellant pushed the complainant to the ground, stepping on
her ribs and stomach. It’s not clear what became of the physical altercation at that point,
but a few minutes later appellant again put the complainant on the ground and struck her
twice in the face. The complainant was able to extricate herself and leave the premises.
The deputy who responded to the complainant’s emergency call testified that she spoke
with appellant on the phone and although he declined to meet with her, he stated that the
complainant had hit him in the face and lip. A friend of appellant’s testified that he saw
appellant an hour or so after the incident and that appellant appeared shaken, angry and
upset, and also that he had observed a knot on the back of appellant’s head and scratches
on his arms and face. Appellant requested a charge on self-defense. T EX. P ENAL C ODE §
9.31. The trial court denied the request.
Appellant claimed on appeal that the trial court erred by denying the requested
self-defense charge. The State offered a number of reasons why appellant was not entitled
to the charge, but its primary argument was that appellant was not entitled to the charge
because he had provoked the difficulty. The bulk of the court of appeals’ analysis is
devoted to responding to the State’s arguments. Ivy, slip op. at 8-10. After refuting each
of the State’s arguments, the court of appeals held that while there were a number of
potential limitations on appellant’s right to self-defense, those were questions for the jury.
IVY PD-0119-16 – 3
As a result, the court concluded, the trial court erred in refusing to give the self-defense
charge. Id. at 10. The court then analyzed harm and concluded that the charge error was
reversible. Id. at 11-12.
The State has filed a petition for discretionary review in which it argues for the
first time that the issue of self-defense was not raised because there was no evidence that
appellant reasonably believed force was immediately necessary to protect himself from
the complainant. See T EX. P ENAL C ODE § 9.31(a) (providing in part 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”); see also Smith v. State, 676 S.W.3d 584, 585 (Tex.
Crim. App. 1984)(recognizing that “in order to justify the submission of a charge to the
jury on the issue of self-defense, there must be some evidence in the record to show that
the defendant was in some apprehension or fear of being the recipient of the unlawful use
of force from the complainant”). Although the State did not make this specific argument
before the trial court, as the prevailing party on the ruling at trial, the State may advance
on appeal and on discretionary review any reason to uphold the trial court’s ruling. See
McClintock v. State, 444 S.W.3d 15, 20 (Tex. Crim. App. 2014)(as prevailing party at
trial, State need not raise particular argument in favor of trial court’s ruling in reply brief
on appeal as predicate to later raising it in discretionary review). The State’s argument
presents a theory of law which could potentially support upholding the trial court’s ruling.
IVY PD-0119-16 – 4
See Armendariz v. State, 123 S.W.3d 401, 404-06 (Tex. Crim. App. 2003)(where trial
court’s ruling denying motion to suppress was supported by record and correct under a
theory of law applicable to the case, court of appeals was obligated to uphold it), cert.
denied, 541 U.S. 974 (2004); see also State v. Mercado, 972 S.W.2d 75, 77 (Tex. Crim.
App. 1998)(noting this Court’s approval of appellate courts considering alternative
theories of law which support trial court’s decision).
We grant the State’s petition for discretionary review, vacate the judgment of the
court of appeals, and remand this case to that court to address the State’s argument.
Delivered April 27, 2016
Do not publish