Brian Darnell Johnson v. State

Opinion issued August 30, 2016

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-15-00101-CR
———————————
BRIAN DARNELL JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Case No. 13CR3057

MEMORANDUM OPINION

A jury found appellant, Brian Darnell Johnson, guilty of the offense of

aggravated assault with a deadly weapon.1 After appellant pleaded true to the

1
See TEX. PENAL CODE ANN. § 22.02(a) (Vernon 2011).
allegations in two enhancement paragraphs that he had twice been previously

convicted of felony offenses, the jury assessed his punishment at confinement for

forty years. In five issues, appellant contends that the evidence is legally insufficient

to support the jury’s implicit rejection of his claim of self-defense and the trial court,

in its charge, erred in instructing the jury.

We affirm.

Background

The complainant, Don Miles, testified that appellant is his “brother” or

“half-brother” because they “share the same sister” and were “close.” On September

24, 2013, the complainant attended a “family gathering” at “Obie’s Pool Hall”—“[a]

little, small brick building” with “a few pool tables” and “slot machines.” Also, in

attendance were appellant, Charles Douglas and Alex,2 the complainant’s cousins,

Monique Donald, the complainant’s former girlfriend, and Brittany Turner,

Donald’s friend.3

When the complainant saw appellant having a verbal argument with Alex, he

tried to “defuse” the situation. However, appellant became “aggressive” and “pretty

hotheaded” because the complainant was “taking up for” Alex rather than “be[ing]

2
The complainant did not know Alex’s last name.
3
The complainant testified that Turner is Donald’s “cousin”; however, Turner, during
her testimony, clarified that she and Donald are “former friend[s]” who
“pretend[ed]” to be related.

2
on his side.” An argument then “erupt[ed]” between the complainant and appellant,

with both men yelling at each other. The argument turned into “a little physical

altercation,” during which the complainant and appellant “thr[ew] blows.” Although

the complainant admittedly “threw the first punch,” the “fight” consisted of “mutual

combat” between himself and appellant. Douglas, Donald, and “everybody . . . in

th[e] pool hall at th[e] time” “broke[] . . . up” the fight, which was “short-lived,”

consisted of “just a couple punches,” and involved no weapons.

After the complainant’s fight with appellant, “a verbal alternation occurred

between” Donald and “the woman” with appellant. The women did not “hit each

other,” but only “shout[ed].” And after the argument between the two women

“broke . . . up,” the complainant went outside to leave because the pool hall was

going to close and “[t]he police might [have] be[en] [coming].” He then walked to

the side of the building and toward the car that he had driven to the pool hall.

While the complainant was talking to Donald outside of the pool hall to “calm

[her] down,” appellant “c[ame] out[side]” “look[ing] pretty pissed.” He told the

complainant: “Y’all need to go ahead and leave. You know what I’m saying?

You’ve got a timeframe now -- a 5-second timeframe [to leave].” (Internal

quotations omitted.) Appellant said this “over and over” while holding “his hand

behind his back” and “look[ing] threatening.” The complainant then “start[ed] to

approach” appellant because he too was “pissed” and appellant’s threats had “started

3
getting to [him].” However, the complainant, who was carrying a “pocket knife” in

a “holster[],” did not “intend[] to use any . . . weapons” and did not “threaten[]”

appellant. And he did not think that appellant had “any type[] of weapon[]” either.

When the complainant “start[ed] to approach” appellant, he became “kind of

weary,” “turn[ed] [his] back” to appellant, and walked away to “resume [his]

conversation” with Donald. At this time, the complainant’s pocket knife continued

to remain “holstered” in his “side pocket.” He did not have his pocket knife “out,”

did not “wave” it at appellant, and did not “threaten [appellant] in any way.” Nor

did he “say that [he] w[as] going to do anything to [appellant] with the knife.”

The complainant further testified that when he “turn[ed] [his] back” to

appellant, he heard “a boom sound” and “felt [an] impact,” “like somebody punching

[his] leg”—he had been hit by “a gunshot” on “the back of [his] thigh, right up under

[his] butt[ocks].” The complainant then “turned around defensive[ly]” and “pulled”

out his pocket knife in a “spur of the moment . . . reaction.” When he did so, he saw

appellant holding, in his hand, a “gun”—“a revolver[] .38.” The complainant said,

“Man, you shot me,” and he started walking toward appellant, who then “started

ringing shots out,” “started shooting” and “mov[ing] around.” (Internal quotations

omitted.) This caused the complainant to retreat and “hop[]” to his car.

As the complainant drove himself, along with Douglas and Alex, to a hospital,

blood from his leg covered the driver’s seat of his car and a shirt that he had used to

4
try and “keep the blood from . . . flowing all over the [car]seat.” He noted that the

bullet had “entered” his leg through the “back of [his] thigh” and “stayed lodged in”

his leg. The complainant explained that, at the time of trial, the bullet was “still”

inside of his leg because removing it would have been “too risky.” He further noted

that Donald had been “grazed by a bullet,” which injured her chin and arm.

Turner testified that she met appellant at the pool hall on the night that “the

fighting, the arguing, and the shooting” occurred in September 2013. She had gone

to the pool hall to meet Donald, the complainant, and Douglas “[t]o hang [out].”

While there, two arguments took place. The first, which began as a verbal argument

and “turn[ed] . . . physical,” involved Donald and her “auntie.” When appellant’s

“woman” or “girlfriend” “jumped in[to]” the fight, Turner also “g[o]t involved.”

The fight lasted “about five minutes” and did not involve weapons. And the

complainant and Douglas “broke it up.”

Turner explained that the second argument involved the complainant and

appellant. It started as a “verbal argument,” but “turn[ed] into a physical argument”

when the complainant hit appellant. The fight did not involve any weapons and only

lasted “three minutes.” During the fight, the complainant did not “say [that] he had

a knife,” and Turner did not see a knife on him. After the fight, “everybody [went]

their own way.” And once Turner heard that “somebody [had] called the police,”

she and Donald decided to leave the pool hall.

5
 As Turner stood outside of the pool hall with Donald, who was saying

goodbye to the complainant, appellant “came around the corner of [the building] and

started shooting.” When Turner heard the “sound of the gun going off,” she and the

people outside of the pool hall “froze.” She saw appellant “standing there with a

gun,” a “revolver” with a “short” barrel. Turner explained that she actually saw

appellant “[s]hooting” and “shots com[ing] out of the gun.” And she noted that

appellant gave “[n]o warning” before he started shooting the firearm.

Turner also noted that both the complainant and Donald had been hit by

“shots” from appellant’s firearm. She saw the complainant “g[e]t hit by the second

bullet” and “blood gushing from his leg.” The complainant, who Turner did not see

“with any type of weapon,” then “turned around” and “started limping toward[]”

appellant. As the complainant “limp[ed] toward[]” appellant, Donald told him that

“he needed to go to the hospital,” and Donald and Douglas helped the complainant

to his car.

When Turner and Donald then got into her car to “follow” the complainant to

the hospital, Turner saw “[a] bullet hole” in the windshield “on the driver’s side.”

She also discovered that Donald had a “hole” and “blood dripping” “underneath her

chin” where she had been “hit” by a bullet. Finally, Turner noted that she did not

see “anybody with a gun,” other than appellant, “anybody [with] a knife,” or

“anybody [with] any other weapons” that night.

6
 Jennifer Warfield, appellant’s former girlfriend, testified that she and

appellant had stopped dating in September 2013 about “a week” “[b]efore the

shooting at the pool hall.” She was not at the pool hall “when the shooting took

place”; however, she did see appellant that night when she “went to pick him up”

around 1:30 a.m. Appellant had called Warfield, telling her that “he needed [her] to

come get him, that something had happened earlier that night and that might be the

last time [that she] got to see him.” Appellant “sounded scared and out of breath”

on the telephone.

Warfield “picked [appellant] up” in her car, and he sat in the “front” passenger

seat as she drove to his uncle’s house “on Benson.” She parked the car in the

driveway of the house, and she and appellant sat in the car for “maybe 30 minutes.”

During this time, appellant only told Warfield that “he thought somebody was

looking for him.” They then exited the car and “walked around the block” a couple

of times for “30 minutes to an hour,” during which time appellant would not tell her

“what [had] happened.” However, he repeatedly said, “I’m sorry[,] I’m sorry,” and

he “started crying.” (Internal quotations omitted.)

After Warfield and appellant had “made the[ir] second trip around the block,”

he asked, “[W]hat would happen if somebody started shooting at [them].” A car

then “came down . . . the street that intersect[ed] [with] Benson,” and appellant

“took off running” “[t]o the front door and . . . inside” of his uncle’s house.

7
Although Warfield tried to follow him, appellant “shut the door,” and she could not

get inside. Law enforcement officers then appeared, detained Warfield, searched

her, and asked her “who [had] r[u]n into the house.” She responded that appellant

had run into the house, and she consented to a search of her car. After the search,

one of the officers “brought” Warfield over to her car “to show” her a firearm that

was under a car seat. When she saw the firearm, she became scared and angry

because she “knew” that appellant had put it there.

Warfield noted that she did not own any firearms and had not “allow[ed]

anyone else to use [her] car” on the day of the shooting. The first time that she saw

the firearm that the law enforcement officer found was when he showed it to her.

And, according to Warfield, “nobody,” other than appellant, “would have put a gun

under [the] seat” in her car.

Texas City Police Department (“TCPD”) Officer J. Tucker testified that on

September 24, 2013, he was “dispatched” to a hospital after a “shooting,” where he

met the complainant, who was “grabbing his leg” and “making faces and groans of

pain,” in the emergency room. The complainant told Tucker that he “got involved

in an altercation” with his “[]brother,” appellant, at a “club.” And “as he was

leaving, [appellant] shot him.” Tucker also spoke to Donald, who told him that

appellant “started recklessly shooting,” and to Turner, who said that her car had been

8
“struck by one of the bullets.” According to Tucker, the stories of the complainant,

Donald, and Turner all “matched.”

La Marque Police Department Officer M. Kelemen testified that while on

patrol on September 24, 2013, his partner saw two people run across the street near

a house “on Benson.” When Kelemen “turned [his patrol car] around,” the two

people “took off running,” and Kelemen saw “a female trying to get into the front

door of a residence.” After the officers detained the woman, she told Kelemen that

“[t]he male subject,” who was “inside the residence,” had “told [her] to run” and

“advised [her] that some people were after him from an incident earlier.” Kelemen

noted that the car parked in the driveway of the house on Benson was “the suspect

vehicle . . . in a shooting in Texas City” and he contacted the TCPD because it was

handling the investigation of the shooting.

TCPD Officer A. Bjerke testified that on September 24, 2013, he heard that

“a La Marque P.D. officer [had] request[ed] . . . assistance [from the TCPD] based

on seeing a possible suspect involved in a shooting that [had] occurred in Texas

City.” Bjerke then proceeded to an address “on Benson” and spoke to Warfield, who

had been “detained.” When Bjerke searched, with her consent, Warfield’s car, he

recovered “[a] revolver handgun” from the “passenger side floorboard.”4 Bjerke did

4
The trial court admitted into evidence the firearm, “two rounds,” and “one spent
casing” that had been recovered from Warfield’s car.

9
note that he did not know who owned the firearm, but he explained that a firearm is

a deadly weapon.

TCPD Detective E. Mendenhall testified that he was assigned to investigate

“a shooting . . . [at] Obie’s Pool Hall” on September 24, 2013, and he spoke with the

complainant and Donald at the hospital. The complainant, who was in the

emergency room, “appeared” to be in pain and had “a bullet hole [in] his right leg.”

Mendenhall also spoke with Turner, who was “present during the disturbance,” and

Douglas, who was also “present” and one of appellant’s “family member[s].”

According to Mendenhall, the information he received from Turner and Douglas

“pretty much matched.”

Detective Mendenhall further testified that after he received “information that

La Marque P.D.” had “located a possible suspect,” he proceeded to a

“location . . . on Benson,” where he met Warfield. After he obtained her consent to

search her car, he looked into the car “from the passenger side door” and saw “the

handle of a gun.” Officer Bjerke, not Mendenhall, actually removed the firearm

from the car. Mendenhall explained that the firearm “fit[] the description” given “by

the witnesses” to the shooting, and when he showed Warfield the firearm in her car,

she “freaked out” and was “very surprised by it.” And she told Mendenhall that she

had “no knowledge of the gun.”

10
 Appellant testified that he went to the pool hall on September 24, 2013 at

around 3:00 p.m., but not to attend a “family outing.” He explained that Douglas

and Obie Johnson, the owner of the pool hall, are members of his family, but the

complainant is not his “brother.” Appellant, who had only one drink while at the

pool hall, noted that as he was about to leave, he heard the complainant and Alex

“talking.” When appellant asked whether they were “talking about [him],” the

complainant “just walked up to” him and “punched” him in his face. (Internal

quotations omitted.) Alex then “jumped in and they were both jumping [him] inside

[of] the pool hall.”5 At that time, no one used any weapons, and appellant was not

injured. However, he knew that the complainant was carrying a knife because he

had the knife “every time [that appellant] had ever s[een] him.”

After the fight between appellant and the complainant, “the girls [in the pool

hall] immediately started fighting.” Subsequently, “everyone [started] leaving” the

pool hall, but Obie told appellant to “stay in for a while.” “[A]bout ten minutes

later,” appellant went outside the pool hall with Obie and Douglas. And as he

“started going outside to go to the car [that he] was in,” the complainant and Alex

“jumped on [him] again” and “start[ed] beating [him] up.” At first, the complainant

5
Appellant also testified that as he was “talking” to the complainant’s friend, the
complainant “intervened” in their conversation. Appellant and the complainant then
“got into a shouting argument,” and “after that,” they “got in a fight.” The
complainant hit appellant on his chin, causing him to fall to the floor. And then the
complainant and Alex “started jumping [him] inside [of] the pool hall.”

11
and Alex “beat[]” him with their fists, but then the complainant “pull[ed] his knife

out of his belt buckle” and “cut [appellant] on [his] arm four times.” Appellant

explained that the complainant and Alex hit him “[a] whole bunch of times” while

“on top” of him. Then, the complainant “momentarily stopped,” “went to his waist,”

and “pulled out his knife.” And appellant could “feel” it as the complainant cut his

arm. However, the complainant did not “stab[] any other place on [his] body.”

Appellant’s gun then “fell out of [his] back pocket,” and he “shot [the complainant]

in his leg.”

During the fight, appellant was “[t]erribly afraid” because the complainant

had “beat[en] [him] once inside the pool hall.” And he feared that “it would be

fatal,” i.e., the complainant would “kill [him] that night.” Appellant explained that

the complainant had “always [been] beating up on someone” and he and the

complainant had “gotten into it twice before.” Further, appellant “used the gun”

because he was “on the ground” when the complainant and Alex “started beating

[him] up” and the complainant had “cut[]” him with the knife. He fired only two or

three shots, hitting the complainant “in the back of his leg.” After appellant shot the

complainant, he “ran around the [pool hall] building,” and the complainant “chased

after [him] with [the] knife.” The complainant followed appellant “all the way to

[his] car,” which appellant “jumped into.” And as appellant drove away from the

pool hall, the complainant tried to “punch[] on the [car’s] windows.”

12
 Appellant further testified that he drove his car to “615 Benson after the

shooting.” Although Warfield “came to the house . . . [a]t Benson,” she did not drive

appellant there. He admitted to sitting in the front-passenger seat of Warfield’s car,

but he denied that he had placed the firearm under the passenger-side car seat.

According to appellant, he had “never [before] seen th[e] gun” found in Warfield’s

car, and he did not know how it got there. Further, appellant explained that the

firearm recovered from Warfield’s car was not “the gun” that he had “used” to shoot

the complainant, although he did use “[a] .38” “[r]evolver.”

Appellant also explained that he did not go to a hospital for treatment of the

cuts on his arm because they were not “deep.” And he admitted that when he gave

a statement to Detective Mendenhall, he told him that he “didn’t shoot anybody that

night.” The “first time” that appellant had ever “mentioned [his] injuries” was

during his trial testimony.

On rebuttal, Detective Mendenhall testified that appellant gave him a

statement, which the trial court admitted into evidence. While giving his statement,

appellant did not “mention” to Mendenhall that he had sustained “any stab wounds”

or that the complainant or anyone else had “exhibited or used a knife against him.”

Appellant did not show Mendenhall any “open cuts or healing cuts from stab

wounds,” and he did not state that the fight “involved weapons,” “he was jumped

after the pool hall [had] closed and he shot [the complainant] in self-defense,” or he

13
had “use[d] a weapon to safeguard his life.” Further, when Mendenhall asked

appellant whether “he [had] shot anyone,” he responded, “no.” (Internal quotations

omitted.) Appellant also told Mendenhall that he “walked [away] from the pool

hall,” and he did not say that “he drove a vehicle away from the pool hall to

[a] . . . house.” Finally, Mendenhall explained that, during his investigation, no one

“gave any information” about appellant being “stabbed.”

Sufficiency of Evidence

In his first issue, appellant argues that the evidence is legally insufficient to

support the jury’s implicit rejection of his claim of self-defense because “no

reasonable jury could have found that [he] was not acting in self-defense when he

shot [the complainant].”

We review the legal sufficiency of the evidence by considering all of the

evidence in the light most favorable to the jury’s verdict to determine whether any

“rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 2788–

89 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role

is that of a due process safeguard, ensuring only the rationality of the trier of fact’s

finding of the essential elements of the offense beyond a reasonable doubt. See

Moreno v. State, 755 S. W.2d 866, 867 (Tex. Crim. App. 1988). We give deference

to the responsibility of the fact finder to fairly resolve conflicts in testimony, weigh

14
evidence, and draw reasonable inferences from the facts. Williams, 235 S.W.3d at

750. However, our duty requires us to “ensure that the evidence presented actually

supports a conclusion that the defendant committed” the criminal offense of which

he is accused. Id.

A person is justified in using force against another when and to the degree that

he reasonably believes the force is immediately necessary to protect against the other

person’s use or attempted use of unlawful force. TEX. PENAL CODE ANN. § 9.31(a)

(Vernon 2011). If a person is justified in using force under section 9.31, he may use

deadly force when and to the degree he reasonably believes the deadly force is

immediately necessary to protect himself against the other person’s use or attempted

use of unlawful deadly force. Id. § 9.32(a) (Vernon 2011). A “[r]easonable belief”

is that which “would be held by an ordinary and prudent man in the same

circumstances as the actor.” Id. § 1.07(a)(42) (Vernon Supp. 2015) (internal

quotations omitted). “Deadly force” is force “intended or known by the actor to

cause, or in the manner of its use or intended use is capable of causing, death or

serious bodily injury.” Id. § 9.01(3) (Vernon 2011) (internal quotations omitted).

The 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

15
S.W.2d 395, 399 (Tex. App.—Tyler 1998, no pet.). The amount of force used must

be in proportion to the force encountered. Id.

When a defendant challenges the legal sufficiency of the evidence to support

the rejection of a defense such as self-defense, we examine all of the evidence in the

light most favorable to the verdict to determine whether a rational jury could have

found the accused guilty of all essential elements of the offense beyond a reasonable

doubt and against the accused on the self-defense issue beyond a reasonable doubt.

See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). The defendant

bears the burden of producing “some evidence” to support his self-defense claim.

Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Once the defendant

produces that evidence, the State then bears the burden of persuasion to disprove the

defense. Id. To satisfy its burden, the State need not produce evidence to disprove

the defense; it must only to prove its case beyond a reasonable doubt. Id. Moreover,

“[d]efensive evidence which is merely consistent with the physical evidence at the

scene of the alleged offense will not render the State’s evidence insufficient since

the credibility determination of such evidence is solely within the jury’s province[,]

and the jury is free to accept or reject the defensive evidence.” Saxton, 804 S.W.2d

at 914. When the evidence is conflicting, we presume that the fact finder resolved

the conflicts in favor of the State and defer to that determination. Clayton v. State,

16
235 S.W.3d 772, 778 (Tex. Crim. App. 2007). “A jury verdict of guilty is an implicit

finding rejecting the defendant’s self-defense theory.” Saxton, 804 S.W.2d at 914.

Here, appellant admitted to shooting the complainant “in the back of [the]

leg,” and the complainant testified that appellant had shot him. The complainant

further explained that when he was outside of the pool hall talking to Donald,

appellant “c[ame] out[side]” “look[ing] pretty pissed.” He told the complainant:

“Y’all need to go ahead and leave. You know what I’m saying? You’ve got a

timeframe now -- a 5-second timeframe [to leave].” (Internal quotations omitted.)

Appellant said this “over and over” while holding “his hand behind his back” and

“look[ing] threatening.” The complainant did not “threaten[]” appellant, but

“start[ed] to approach” him until he became “weary,” “turn[ed] [his] back” to

appellant, and walked away. The complainant did not have his pocket knife “out”

as he approached appellant—it was “holstered” in his “side pocket.” And he did not

“wave” his pocket knife at appellant, “threaten [appellant] in any way,” or “say that

[he] w[as] going to do anything to [appellant] with the knife.”

When the complainant “turn[ed] [his] back” to appellant, he heard a “boom

sound” and “felt [an] impact” to his leg. “[A] gunshot” had hit him on “the back of

[his] thigh, right up under [his] butt[ocks].” And as the complainant turned back

17
around, he saw appellant holding, in his hand, a “gun.”6 Only after he had been shot,

did the complainant “pull[] out” his pocket knife “defensive[ly]” and start walking

toward appellant. At this point, appellant “started ringing shots out,” “started

shooting” and “mov[ing] around,” and the complainant retreated to his car.

Turner testified that as she, the complainant, and Donald stood outside of the

pool hall, appellant “came around the corner of [the building] and started shooting.”

When Turner heard the “sound of the gun going off,” she “froze” and saw appellant

“standing there with a gun.” She saw appellant “[s]hooting” and “shots com[ing]

out of the gun.”7 Turner noted that she saw the complainant “g[e]t hit by the second

bullet” and “blood gush[ing] from his leg.” Turner did not see the complainant “with

any type of weapon,” “anybody with a gun,” other than appellant, “anybody [with]

a knife,” or “anybody [with] any other weapons” that night.

Detective Mendenhall testified that when appellant gave him a statement, he

did not “mention” to Mendenhall that he had sustained “any stab wounds” or that

the complainant or anyone else had “exhibited or used a knife against him.”

Appellant did not show Mendenhall any “open cuts or healing cuts from stab

wounds,” and he did not state that the fight between him and the complainant

6
Officer Tucker testified that the complainant told him that “as he was leaving” the
pool hall, appellant “shot him.”
7
Officer Tucker testified that Donald told him that appellant had “started recklessly
shooting.”

18
“involved weapons,” “he was jumped after the pool hall [had] closed and he shot

[the complainant] in self-defense,” or he had “use[d] a weapon to safeguard his life.”

Appellant also responded “no” when Mendenhall asked whether “he [had] shot

anyone.” (Internal quotations omitted.) Finally, Mendenhall testified that, during

this investigation of the shooting, no one “gave any information” about appellant

being “stabbed.”

Appellant directs us to his own testimony in support of his argument that “no

reasonable jury could have found that [he] was not acting in self-defense when he

shot [the complainant].” Appellant did testify that he was “[t]erribly afraid,” thought

that the complainant would “kill” him, and he “used the gun” and “shot [the

complainant] in the back of his leg” because he was “on the ground” when the

complainant and Alex “started beating [him] up” and “cutting” him with a knife.

However, the issue of self-defense is a fact issue to be determined by the jury,

which is free to accept or reject the defensive issue. Saxton, 804 S.W.2d at 913–14;

Lee v. State, 259 S.W.3d 785, 791 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).

Further, “jurors are the exclusive judges of the facts, the credibility of the witnesses,

and the weight to be given” the witnesses’ testimony; and they may choose to believe

or disbelieve any part of any witness’s testimony. Penagraph v. State, 623 S.W.2d

341, 343 (Tex. Crim. App. 1981); Davis v. State, 177 S.W.3d 355, 358 (Tex. App.—

19
Houston [1st Dist.] 2005, no pet.); Jaggers v. State, 125 S.W.3d 661, 672 (Tex.

App.—Houston [1st Dist.] 2003, pet. ref’d).

Moreover, it was within the province of the jury to determine what portions

of the conflicting testimony to credit and what portions to reject. See Sharp v. State,

707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Robertson v. State, No.

01-15-00376-CR, 2016 WL 672528, at *2 (Tex. App.—Houston [1st Dist.] Feb. 18,

2016, no pet.) (mem. op., not designated for publication). And, here, the jury

reasonably could have rejected appellant’s testimony about his version of the events

surrounding the shooting, and it could have reasonably credited the testimony of the

complainant and the other witnesses. See Smith v. State, 355 S.W.3d 138, 146 (Tex.

App.—Houston [1st Dist.] 2011, pet. ref’d) (“[T]he jury chose not to believe

[defendant] and his witnesses’ testimony that he acted in defense, either of himself

or third persons, when he stabbed [the complainant].”); Denman v. State, 193 S.W.3d

129, 132–33 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (jury not required to

accept defendant’s self-defense claim).

Viewing the evidence in the light most favorable to the verdict, we conclude

that a rational jury could have found the essential elements of the offense of

aggravated assault with a deadly weapon beyond a reasonable doubt and could have

found against appellant on his self-defense issue beyond a reasonable doubt. See

20
Saxton, 804 S.W.2d at 914. Accordingly, we hold that the evidence is sufficient to

support the jury’s implied rejection of appellant’s self-defense claim.

We overrule appellant’s first issue.

Charge Error

In his second and third issues, appellant argues that the trial court, in its

charge, erred in not instructing the jury that a reasonable doubt on the issue of

self-defense required that he be acquitted and omitting the application paragraph

applying the law of self-defense to the facts of the case. And by not doing so, the

trial court failed to include the law applicable to the case and apply the facts of the

case to the law. See TEX. PENAL CODE ANN. § 2.03(d) (Vernon 2011); Vasquez v.

State, 389 S.W.3d 361, 366–67 (Tex. Crim. App. 2012) (defining “application

paragraph”). In his fourth and fifth issues, appellant argues that the trial court, in its

charge, erred in not instructing the jury on the presumption of reasonableness or the

duty to retreat. And by not doing so, the trial court failed to include the law

applicable to the case. See TEX. PENAL CODE ANN. §§ 9.31(a), (e)–(f), 9.32(a)–(d);

see also id. § 2.05(b) (Vernon 2011).

A review of jury-charge error involves a two-step analysis. Ngo v. State, 175

S.W.3d 738, 743–44 (Tex. Crim. App. 2005); Abdnor v. State, 871 S.W.2d 726,

731–32 (Tex. Crim. App. 1994). First, we must determine whether error actually

exists in the charge, and, second, if error does exist, whether sufficient harm resulted

21
from the error to require reversal. Ngo, 175 S.W.3d at 743–44; Abdnor, 871 S.W.2d

at 731–32.

Reasonable Doubt and Application Paragraph

A trial court must instruct a jury by “a written charge distinctly setting forth

the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon

2007); McIntosh v. State, 297 S.W.3d 536, 542 (Tex. App.—Houston [1st Dist.]

2009, pet. ref’d). In regard to appellant’s second and third issues, we note that the

Texas Penal Code provides that “[i]f the issue of the existence of a defense is

submitted to the jury, the court shall charge that a reasonable doubt on the issue

requires that the defendant be acquitted.” TEX. PENAL CODE ANN. § 2.03(d).

Further, the trial court’s charge must apply the law to the facts adduced at trial

because the jury must be instructed under what circumstances to convict or acquit.

Gray v. State, 152 S.W.3d 125, 127–28 (Tex. Crim. App. 2004). “[T]he failure to

apply the law of self-defense to the facts of the case and to instruct the jury to acquit

if they h[o]ld a reasonable doubt on self-defense [is] error.” Barrera v. State, 982

S.W.2d 415, 416 (Tex. Crim. App. 1998); see also Vega v. State, 394 S.W.3d 514,

519 (Tex. Crim. App. 2013) (“[O]nce the jury is charged on a defensive issue, a flaw

in that charge is error . . . .”); Gray, 152 S.W.3d at 127–28 (“Jury charges which fail

to apply the law to the facts adduced at trial are erroneous.”).

22
 Here, the trial court charged the jury on the law of aggravated assault with a

deadly weapon, and it included a proper application paragraph on aggravated assault.

See TEX. PENAL CODE ANN. § 22.02(a) (aggravated assault); Vasquez, 389 S.W.3d

at 366–67 (defining “application paragraph”). The trial court further instructed the

jury on the law of self-defense. See TEX. PENAL CODE ANN. §§ 9.31, 9.32. However,

the trial court did not include an application paragraph applying the law of

self-defense to the facts of the case, and it did not specifically instruct the jury to

acquit appellant if it held a reasonable doubt on self-defense. See TEX. PENAL CODE

ANN. § 2.03(d); Vasquez, 389 S.W.3d at 366–67 (defining “application paragraph”).

This constituted error. Barrera, 982 S.W.2d at 416; see also Derouen v. State, No.

01-99-01415-CR, 2001 WL 170981, at *1–2 (Tex. App.—Houston [1st Dist.] Feb.

22, 2001, no pet.) (not designated for publication) (“The failure to apply the law of

self-defense to the facts of the case and the failure to instruct the jury to acquit if it

h[o]ld[s] a reasonable doubt on self-defense constitute error.”).

When, as here, a defendant does not object, or states that he has no objection

to a jury charge, an error will not result in reversal unless the record shows

“egregious harm,” such that the defendant was denied a fair and impartial trial.8

Warner v. State, 245 S.W.3d 458, 461–62 (Tex. Crim. App. 2008) (internal

8
In his brief, appellant concedes that he must show egregious harm. Further,
appellant’s trial counsel stated on the record that appellant had no objection to the
trial court’s charge.

23
quotations omitted); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)

(internal quotations omitted). “Egregious harm exists when the record shows that a

defendant has suffered actual, rather than merely theoretical, harm from jury-charge

error.” Mcintosh, 297 S.W.3d at 543 (citing Almanza, 686 S.W.2d at 174).

“Egregious harm consists of error affecting the very basis of the case or depriving

the defendant of a valuable right, vitally affecting a defensive theory, or making the

case for conviction or punishment clearly and significantly more persuasive.” Id.

Egregious harm is a difficult standard to meet, and it must be determined on a

case-by-case basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002).

To determine whether a defendant has sustained harm from an instruction to which

he did not object, we consider (1) the entire charge, (2) the state of the evidence,

(3) arguments from counsel, and (4) any other relevant information. Vega, 394

S.W.3d at 521; Almanza, 686 S.W.2d at 171; Mcintosh, 297 S.W.3d at 543.

Under the first factor, we examine the entire jury charge to determine the

effect the trial court’s error may have had on the jury. Here, the trial court

(1) instructed and applied the law of aggravated assault with a deadly weapon to the

facts of the case; (2) instructed the jury on the law of self-defense; (3) correctly

placed the burden on the State to prove each element of the offense beyond a

reasonable doubt; and (4) instructed the jury that appellant was not required to prove

24
his innocence or to produce any evidence. Further, after instructing the jury on the

issue of self-defense in its charge, the trial court stated:

The prosecution has the burden of proving the Defendant guilty and it
must do so by proving each and every element of the offense charged
beyond a reasonable doubt and if it fails to do so, you must acquit the
Defendant.

In the event you have a reasonable doubt as to the Defendant’s guilt
after considering all the evidence before you and these instructions, you
will acquit him and say by your verdict “Not Guilty.”

We presume that the jury followed the trial court’s instructions. Resendiz v.

State, 112 S.W.3d 541, 546 (Tex. Crim. App. 2003). And, accordingly, we conclude

that, despite the trial court’s errors, the charge, as a whole, adequately conveyed to

the jury that it was required to acquit appellant if it had a reasonable doubt as to any

element of the offense. See Zuliani, 97 S.W.3d at 594 (to meet its burden of

persuasion to show defendant did not act in self-defense, State required to prove its

case beyond reasonable doubt); see also Ramirez v. State, No. 13-05-785-CR, 2009

WL 1567340, at *6–7 (Tex. App.—Corpus Christi Jan. 22, 2009, pet. ref’d) (mem.

op., not designated for publication) (under similar circumstances, holding charge,

which did not include application paragraph on law of self-defense and did not

instruct jury as required by section 2.03(d), did not result in egregious harm to

defendant); Donnell v. State, No. 05-05-01445-CR, 2008 WL 73398, at *12–15

(Tex. App.—Dallas Jan. 8, 2008, pet. ref’d) (not designated for publication) (no

egregious harm, despite trial court’s failure to include in its charge reasonable-doubt

25
instruction as to self-defense, where jury charge instructed burden of proof on State,

each element of offense had to be proved beyond reasonable doubt, and defendant

not required to prove his innocence or produce any evidence).

Under the second factor we consider the state of the evidence and the

plausibility of the evidence raising the issue of self-defense. Villarreal v. State, 453

S.W.3d 429, 436 (Tex. Crim. App. 2015); Allen v. State, 253 S.W.3d 260, 267–68

(Tex. Crim. App. 2008). In doing so, we may consider the witnesses’ testimony,

appellant’s out-of-court statements to law enforcement officers, and the relative

weakness of the evidence indicating that appellant acted in self-defense. Villarreal,

453 S.W.3d at 436.

Here, almost all of the evidence adduced at trial showed that appellant, rather

than the complainant, was the aggressor and the complainant was unarmed when

appellant shot him in the back of his leg. See Villarreal, 453 S.W.3d at 436 (“The

court of appeals erred by failing to consider the strength of the evidence showing

that [defendant] was the aggressor and that [the complainant] was unarmed when

appellant stabbed him.”). For instance, the complainant testified that when he was

outside of the pool hall talking to Donald, appellant “c[ame] out[side]” “look[ing]

pretty pissed.” Appellant told the complainant: “Y’all need to go ahead and leave.

You know what I’m saying? You’ve got a timeframe now -- a 5-second timeframe

[to leave].” (Internal quotations omitted.) Appellant said this “over and over” while

26
holding “his hand behind his back” and “look[ing] threatening.” The complainant

did not “threaten[]” appellant, but “start[ed] to approach” him until he became

“weary,” “turn[ed] [his] back” to appellant, and walked away. The complainant did

not have his pocket knife “out” as he approached appellant—it was “holstered” in

his “side pocket.” And he did not “wave” his pocket knife at appellant, “threaten

[appellant] in any way,” or “say that [he] w[as] going to do anything to [appellant]

with the knife.”

When the complainant “turn[ed] [his] back” to appellant, he heard “a boom

sound” and “felt [an] impact” to his leg. “[A] gunshot” had hit him on “the back of

[his] thigh, right up under [his] butt[ocks].” And as the complainant turned back

around, he saw appellant holding, in his hand, a “gun.” Only after he had been shot,

did the complainant “pull[] out” his pocket knife “defensive[ly]” and start walking

toward appellant. However, appellant “started ringing shots out,” “started shooting”

and “mov[ing] around,” and the complainant retreated toward his car.

Turner testified that as she, the complainant, and Donald stood outside of the

pool hall, appellant “came around the corner of [the building] and started shooting.”

When Turner heard the “sound of the gun going off,” she “froze” and saw appellant

“standing there with a gun.” And she saw appellant “[s]hooting” and “shots

com[ing] out of the gun.” Turner noted that she saw the complainant “g[e]t hit by

the second bullet” and “blood gush[ing] from his leg.” Turner did not see the

27
complainant “with any type of weapon,” “anybody with a gun,” other than appellant,

“anybody [with] a knife,” or “anybody [with] any other weapons” that night.

Further, Detective Mendenhall testified that during his investigation of the

shooting, no one “gave any information” about appellant being “stabbed” on the

night of the shooting. And Officer Tucker testified that the complainant told him

that appellant had “shot him” “as he was leaving” a “club,” and Donald told him that

appellant had “started recklessly shooting.”

Finally, appellant, himself, testified that he shot the complainant “in the back

of his leg.” (Emphasis added.) And although appellant stated that he shot the

complainant after being “cut” on his arm “four times” by the complainant’s knife,

appellant admitted that he did not go to a hospital to have the cuts to his arm treated

because they were not “deep.” Further, appellant admitted that he had previously

denied shooting anyone in his statement to law enforcement officers. And he

admitted that the “first time” that he had ever “mentioned his injuries” was during

his trial testimony.

Further, in his statement to Detective Mendenhall, which the trial court

admitted into evidence, appellant never raised the issue of self-defense, nor did he

state that he had shot the complainant in response to the complainant “cutting” him

with a knife. And Mendenhall testified that when appellant gave the statement,

appellant did not “mention” that he had sustained “any stab wounds” or that the

28
complainant or anyone else had “exhibited or used a knife against him.” Appellant

did not show Mendenhall any “open cuts or healing cuts from stab wounds,” and he

did state that the fight between him and the complainant “involved weapons,” “he

was jumped after the pool hall [had] closed and he shot [the complainant] in

self-defense,” or he had “use[d] a weapon to safeguard his life.” Appellant also

responded “no” when Mendenhall asked him whether “he [had] shot anyone.”

(Internal quotations omitted.)

In short, none of the witnesses at trial corroborated appellant’s version of

events, and neither did his own statement to law enforcement officers. See

Villarreal, 453 S.W.3d at 437–40 (second factor weighs against egregious harm

where defendant’s “out-of-court statements were internally inconsistent with his

claim of self-defense”). In other words, no evidence, other than appellant’s own

testimony, supported his claim of self-defense. See Villarreal, 453 S.W.3d at 437–

39; see also Gonzalez v. State, No. 08-11-00147-CR, 2012 WL 4101900, at *2–3

(Tex. App.—El Paso Sept. 19, 2012, pet. ref’d) (not designated for publication)

(defendant not egregiously harmed by erroneous jury charge where defendant’s

testimony regarding self-defense uncorroborated and “contradicted by evidence the

State developed at trial”).

Here, an examination of the entire record reveals that appellant’s defensive

evidence was weak, and it is unlikely that appellant was harmed as a result of the

29
trial court’s jury charge errors. See Villarreal, 453 S.W.3d at 437–39; see also Allen,

253 S.W.3d at 267–68 (even had jury been properly instructed, “not likely” it would

have found in defendant’s favor as to defensive issue); Rivas v. State, 486 S.W.3d

640, 652 (Tex. App.—San Antonio 2016, pet. ref’d) (“The weight of the probative

evidence that the State developed at trial refuting [defendant’s] claim of self-defense

was such that, notwithstanding the erroneous application paragraph . . . , the jury

could have found beyond a reasonable doubt that [defendant] did not have a

reasonable belief that self-defense was necessary.”). And the mere existence of

conflicting testimony relating to the details of the shooting is not “indicative of

egregious harm.” Villarreal, 453 S.W.3d at 436–39. Further, it is likely that the

jury’s decision on the issue of self-defense turned on credibility and was not

influenced by error in the jury charge. See Ramirez, 2009 WL 1567340, at *6–7;

Donnell, 2008 WL 73398, at *13–14.

Under the third factor, we consider the argument of counsel. During closing

argument, appellant’s trial counsel argued extensively regarding self-defense,

explaining that appellant “protected himself, which is allowed under Texas law,”

and “[i]f you’re afraid for your life, you have a right to self-defense.” Appellant’s

counsel also applied the facts of this case to the general self-defense instruction

included in the trial court’s charge to the jury. In regard to self-defense, counsel

stated:

30
 It’s not as complicated as it sounds. Read the definition, look at it from
the person who’s being attacked to the degree that [the] actor
reasonably believes that force is immediately necessary to protect
oneself. The next whole page is still about self-defense, also. The same
kind of things, though. If someone’s attacking you and they have a
deadly weapon, a knife, and you are choosing to use a deadly weapon
to protect yourself, see if that fits this definition. If this is the
expectation, if such person -- a reasonable expectation of fear or death,
and that’s what [appellant] said. He was afraid he was going to die.
The man is stabbing him, a man that always carries a knife. He carried
a gun, but now he carries just a knife. Was [appellant] -- have a
reasonable expectation of fear of death? Yes. He said he did. He was
scared.

Last paragraph on there, you should put yourself in the Defendant’s
position at that time and view from his standpoint alone. It’s not
whether [the complainant] was intending -- no. If you’re afraid for your
life, you have a right to self-defense. It’s always the burden of the State
to prove all the case -- to prove every bit of the elements. That’s what
they have to do. I ask you to read over the elements. I ask you to look
at it and consider it, take your time; and when it comes to it, I’m asking
you to -- on the line that says “not guilty,” I’m asking the foreperson of
the jury to write their name right there. . . .

During closing argument, appellant’s trial counsel also reiterated repeatedly

that appellant had been “confronted by [the complainant] more than once”; the

complainant was “threatening, bossy, intimidating,” and “a dangerous man,” who

“always carrie[d] a knife”; and the complainant had “just got in a fight with

[appellant] twice and [had been] threatening him.” Appellant’s trial counsel also

repeatedly told the jury that the complainant had “jumped” appellant, appellant was

“afraid for his life,” appellant “saw [the complainant] bring out a knife,” and he was

“afraid he was going to die.” See Linden v. State, 347 S.W.3d 819, 822–23 (Tex.

31
App.—Corpus Christi 2011, pet. ref’d) (trial court’s error in jury charge did not

cause egregious harm where defendant’s counsel during closing argument “argued

at length” regarding self-defense theory); Barrera v. State, 10 S.W.3d 743, 745–46

(Tex. App.—Corpus Christi 2000, no pet.) (defendant’s counsel “discussed

self-defense in his argument before the jury” and “jury was given a general

instruction on the law of self-defense”).

Finally, we note that the State explained to the jury during voir dire the

concept of self-defense, emphasizing that “in Texas . . . a person can be justified in

using force against another person when and to the degree [he] reasonably believe[s]

that the force is immediately necessary . . . to protect against the other person’s force

or attempted use of force.” And the trial court also told the jury that a finding of

“self-defense” would not result in a “conviction” and “[i]f the jury found that the

[d]efendant was entitled to use self-defense in his actions, then [it] would not get to

a punishment phase” of trial. See Gonzalez, 2012 WL 4101900, at *4 (statements

made during voir dire regarding self-defense relevant to determining egregious

harm).

Accordingly, we hold that the trial court’s error in not specifically instructing

the jury to acquit appellant if it had a reasonable doubt on the issue of self-defense

and not including an application paragraph applying the law of self-defense to the

facts of the case did not cause egregious harm to appellant.

32
 We overrule appellant’s second and third issues.

Presumption of Reasonableness

In his fourth issue, appellant argues that the trial court, in its charge, erred in

not instructing the jury on the presumption of reasonableness because “the evidence

demonstrates that [the complainant] may have been committing or attempting to

commit murder,” “[t]here [i]s evidence . . . that [appellant] did not provoke” the

complainant, and “there [i]s evidence . . . that [appellant] was not otherwise engaged

in criminal activity.” See TEX. PENAL CODE ANN. §§ 9.31(a), 9.32(a)–(b); see also

id. § 2.05(b).

Texas Penal Code sections 9.31(a) and 9.32(b) provide that an actor’s belief

that force, or deadly force, was immediately necessary is presumed to be reasonable

if he:

(1) knew or had reason to believe that the person against whom the
force[, or deadly force,] was used:

(A) unlawfully and with force entered, or was attempting to
enter unlawfully and with force, the actor’s occupied
habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to
remove unlawfully and with force, the actor from the
actor’s habitation, vehicle, or place of business or
employment; or

(C) was committing or attempting to commit aggravated
kidnapping, murder, sexual assault, aggravated sexual
assault, robbery, or aggravated robbery;

33
 (2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class
C misdemeanor that is a violation of a law or ordinance
regulating traffic at the time the force was used.

Id. §§ 9.31(a), 9.32(b). A statutory presumption favoring the defendant “must be

submitted to the jury” “if there is sufficient evidence of the facts that give rise to the

presumption,” “unless the court is satisfied that the evidence as a whole clearly

precludes a finding beyond a reasonable doubt of the presumed fact.” Id.

§ 2.05(b)(1); Morales v. State, 357 S.W.3d 1, 7 (Tex. Crim. App. 2011). Here, the

State argues that appellant was not “entitled to an instruction on the presumption of

reasonableness” provided in sections 9.31 and 9.32 “because the evidence before the

[trial] court proved that [appellant] was engaged in criminal activity.”

Although “criminal activity” as it is used in Chapter 9 of the Texas Penal Code

is undefined, we give effect to the plain meaning of statutory language as “the best

indicator of legislative intent.” Shipp v. State, 331 S.W.3d 433, 437 (Tex. Crim.

App. 2011). And courts have held that “criminal activity” “can be broadly

construed” to “encompass any activity that constitutes a crime.” Barrios v. State,

389 S.W.3d 382, 393 (Tex. App.—Texarkana 2012, pet. ref’d).

The unlawful possession of a firearm by a convicted felon is a third-degree

felony offense. TEX. PENAL CODE ANN. § 46.04(a), (e) (Vernon 2011). Felonies fall

within the type of criminal activity prohibited by sections 9.31(a) and 9.32(b). See

34
Larrinaga v. State, No. 02-14-00199-CR, 2015 WL 4730710, at *3 (Tex. App.—

Fort Worth Aug. 6, 2015, pet. ref’d) (mem. op., not designated for publication); see

also McCurdy v. State, No. 06-12-00206-CR, 2013 WL 5433478, at *4 (Tex. App.—

Texarkana Sept. 26, 2013, pet ref’d) (mem. op., not designated for publication)

(defendant engaged in criminal activity by being felon in unlawful possession of

firearms); Davis v. State, No. 05-10-00732-CR, 2011 WL 3528256, at *10–11 (Tex.

App.—Dallas Aug. 12, 2011, pet. ref’d) (not designated for publication) (defendant

not entitled to presumption because he was felon prohibited from possessing

firearm).

Here, appellant admitted that he had previously been convicted of several

“felonies,” including “[b]urglary of a habitation” and “unauthorized use of

a . . . vehicle,” and used a firearm to shoot the complainant.9 See TEX. PENAL CODE

ANN. §§ 30.02(a), (c)(2) (burglary of habitation felony offense), 31.07(a)–(b)

(Vernon 2011) (unauthorized use of vehicle felony offense), 46.04(a), (e) (unlawful

possession of firearm by convicted felon felony offense); Graves v. State, 452

9
The trial court admitted evidence of appellant’s criminal record, which established
that he was convicted of the second-degree felony offense of burglary of a habitation
on March 13, 2000 and February 11, 2010, the first-degree felony offense of
burglary of a habitation on November 12, 2001, and the state-jail felony offense of
unauthorized use of a vehicle on January 13, 1998. See TEX. PENAL CODE ANN.
§§ 30.02(a), (c)(2) (burglary of habitation), 31.07(a)–(b) (Vernon 2011)
(unauthorized use of vehicle); see also id. § 12.42(b) (Vernon Supp. 2015) (habitual
offender statute elevates second-degree felony offense to first-degree felony
offense).

35
S.W.3d 907, 913 (Tex. App.—Texarkana 2014, pet. ref’d) (statute requires “criminal

activity” to occur at time force or deadly force used); see also Davis, 2011 WL

3528256, at *10–11 (“It is undisputed that appellant possessed a firearm in violation

of the law at the time he used deadly force because he was a convicted felon

prohibited by law from possessing a firearm.”). This removed the need to instruct

the jury that appellant’s belief that force, or deadly force, was immediately necessary

was presumed reasonable. Accordingly, we hold that the trial court did not err in

not instructing the jury on the presumption of reasonableness.

We overrule appellant’s fourth issue.

Duty to Retreat

In his fifth issue, appellant argues that the trial court, in its charge, erred in not

instructing the jury on the duty to retreat because the evidence shows that he was

“legally on his uncle’s property at the time that he was attacked by [the

complainant],” he was not “committing any other criminal activity at the time he

was attacked by [the complainant],” and he “did not provoke [the complainant].”

See TEX. PENAL CODE ANN. §§ 9.31(e), (f), 9.32(c), (d).

Texas Penal Code sections 9.31(e) and 9.32(c) provide:

A person who has a right to be present at the location where the force[,
or deadly force] is used, who has not provoked the person against whom
the force[, or deadly force] is used, and who is not engaged in criminal
activity at the time the force[, or deadly force] is used is not required to
retreat before using force[, or deadly force] as described by this section.

36
See id. §§ 9.31(e), 9.32(c). Further, sections 9.31(f) and 9.32(d) state that in

determining whether the person described in sections 9.31(e) or 9.32(c) reasonably

believed that the use of force, or deadly force, was necessary, a fact finder may not

consider whether he failed to retreat. See id. §§ 9.31(f), 9.32(d).

As previously discussed, a statutory presumption favoring the defendant

“must be submitted to the jury” “if there is sufficient evidence of the facts that give

rise to the presumption,” “unless the court is satisfied that the evidence as a whole

clearly precludes a finding beyond a reasonable doubt of the presumed fact.” Id.

§ 2.05(b)(1); Morales, 357 S.W.3d at 7. Here, appellant had no duty to retreat only

if he was “not engaged in criminal activity” at the time he shot the complainant. See

TEX. PENAL CODE ANN. §§ 9.31(e), 9.32(c); Morales, 357 S.W.3d at 5 (“The[] ‘no

duty to retreat’ provisions are not all-encompassing. By their very language, they

do not apply . . . if the defendant was engaged in criminal activity at the time.”).

Because appellant was admittedly a convicted felon in unlawful possession of a

firearm at the time that he shot the complainant, he was not entitled to an instruction

that he had no duty to retreat. See TEX. PENAL CODE ANN. § 46.04(a), (e) (unlawful

possession of firearm by convicted felon third-degree felony offense); Larrinaga,

2015 WL 4730710, at *2–3 (felony, such as unlawful possession of a firearm by

convicted felon, falls within type of criminal activity prohibited by sections 9.31 and

37
9.32); Graves, 452 S.W.3d at 913 (statute requires “criminal activity” to occur at

time force or deadly force used).

Accordingly, we hold that the trial court did not err in not instructing the jury

on the duty to retreat.

We overrule appellant’s fifth issue.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings
Justice

Panel consists of Justices Jennings, Massengale, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).

38