AFFIRMED; and Opinion Filed May 21, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00227-CR
RONALD KENDRIC MCCOY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 3
Collin County, Texas
Trial Court Cause No. 003-86138-2012
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Myers, and Justice Evans
Opinion by Justice Evans
Ronald Kendric McCoy appeals his conviction for misdemeanor assault. In his sole
issue, appellant complains of the trial court’s failure to charge the jury on the law as it pertains to
the duty to retreat regarding self-defense. We affirm the trial court’s judgment.
The incident on which appellant’s conviction was based occurred during a Memorial Day
pool party at the home of his girlfriend’s employer, Troy O’Neil. Richard Kevin Barrett and his
girlfriend Nicole Jewkes also attended the party. Barrett testified he had met appellant
previously and admitted he did not like appellant. In a statement Barrett gave to the police, he
described appellant as “rude and standoffish.” Barrett and appellant did not interact much at the
pool party. As the party wound down, Barrett was having conversation with a few other guests
about throwing a party for O’Neil at Barrett’s house. Barrett mentioned watching the Ranger’s
game during the party for O’Neill. Appellant interjected a disparaging comment about the
Rangers, using profanity. Appellant’s comment upset Barrett who then went outside for a few
minutes to cool down. Upon re-entering the house and preparing to leave, including saying
goodbye to those present, Barrett walked over to appellant who was sitting at the dining room
table. Barrett extended his arm across the table and shook appellant’s hand while sarcastically
remarking something to the effect that he hoped he “never saw [appellant] again.” According to
Barrett, while he and appellant were still shaking hands, appellant lunged over the table and
struck Barrett in the face with the closed fist of his left hand, knocking Barrett out and breaking
his nose.
Barrett’s girlfriend Jewkes provided testimony similar to Barrett’s. She stated that
Barrett’s actions of approaching appellant and shaking his hand were not aggressive. She saw
appellant punch Barrett in the nose while they were shaking hands, causing Barrett to fall to the
ground. Appellant was then on top of Barrett who was on the floor. Jewkes and O’Neil pulled
appellant off Barrett. According to Jewkes, as she and Barrett were leaving, appellant followed
them out screaming at them “to keep this going, something along the lines of like, lets [sic] finish
this, bitch.”
Appellant’s girlfriend, Megan Mathews, testified that Barrett had a “mad look” when he
was shaking appellant’s hand and made a strange comment. Appellant punched Barrett and then
they were both on the ground. She thought Barrett’s actions and demeanor were threatening and
appellant appeared to be defending himself. O’Neil also testified about the incident. O’Neil
characterized Barrett’s handshake with appellant as “aggressive, not a friendly gesture,” and
agreed his comment was clearly sarcastic. O’Neil didn’t think Barrett was still holding
appellant’s hand when appellant “took a swing at [Barrett].” O’Neil described Barrett’s behavior
toward appellant as aggressive, cocky, and physically intimidating. He indicated that after
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Jewkes had Barrett in the car, Barrett tried to get out and come back in. O’Neil did not view
appellant’s actions as an assault but felt appellant was defending himself.
Police detective Scott Epperson testified that he was assigned to investigate the case. He
obtained statements from Barrett and Jewkes, who thought appellant assaulted Barrett. Their
statements conflicted with the statements from Mathews and appellant, who indicated appellant
acted in self-defense. Officer Epperson testified O’Neil, who had a relationship with all the
parties, indicated appellant was really the aggressor and O’Neil had to intervene physically to
push him away. Appellant did not testify at trial.
At the charge conference, appellant’s counsel requested the trial court to add a “no duty
to retreat” instruction to the general self-defense instruction that was already in the charge. The
trial court denied the request. The jury found appellant guilty of assault causing bodily injury
and sentenced him to forty-five days’ confinement. This appeal followed.
On appeal, appellant contends his conviction should be reversed because he suffered
some harm as a result of the trial court’s incomplete self-defense instruction which omitted the
no duty to retreat instruction. Among other things, the State argues that because appellant was
not entitled to a self-defense instruction at all, the trial court did not err in submitting an
incomplete self-defense instruction. We agree with the State.
When reviewing a jury-charge complaint, we must first determine whether error exists in
the charge. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error did not
occur, our analysis ends. Id. Appellant’s complaint fails the first step of our analysis. A trial
court must give requested instructions on every defensive issue raised by the evidence without
regard to its source or strength, even when the evidence is not credible or contradicted.
Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. Crim. App. 2013) (citing Shaw v. State, 243
S.W.3d 647, 657–58 (Tex. Crim. App. 2007)). But before the trial court is required to submit a
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self-defense instruction the defendant must present sufficient evidence to support each element
of the defense. See TEX. PENAL CODE ANN. § 2.03(c) (West 2011). Pursuant to section 9.31 of
the Texas Penal Code, 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.” Id. at § 9.31(a) (West 2011). A
“reasonable belief” is one that would be held by an ordinary and prudent person in the same
circumstances as the actor. Id. at § 1.07(a)(42) (West Supp. 2014).
Here, there is no evidence in the record that appellant possessed a reasonable belief that
force was necessary to protect himself against Barrett’s use or attempted use of unlawful force.
See id. § 9.31(a). The record merely shows that after Barrett re-entered the house, he walked to
where appellant was sitting, shook his hand and made a sarcastic comment, at which point
appellant punched him the face. The witnesses characterizations of Barrett’s behavior as “not
friendly,” “threatening,” “aggressive,” or “physically intimidating,” were conclusions that did
not constitute any evidence that appellant reasonably believed force was immediately necessary
to protect himself from Barrett’s use or attempted use of unlawful force. Without more evidence
of conduct threatening unlawful force, an aggressive handshake and a sarcastic farewell
comment do not provide an objective basis to believe unlawful force is about to be used or
attempted. Because there is no evidence that could support a rational inference of all the
elements of self-defense, appellant was not entitled to a self-defense instruction. Accordingly,
the trial court did not err when it omitted from the charge an instruction on the lack of a duty to
retreat as it related to self-defense. We resolve appellant’s sole issue against him.
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We affirm the trial court’s judgment.
/David Evans/
DAVID EVANS
Do Not Publish JUSTICE
TEX. R. APP. P. 47
140227F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
RONALD KENDRIC MCCOY, Appellant On Appeal from the County Court at Law
No. 3, Collin County, Texas
No. 05-14-00227-CR V. Trial Court Cause No. 003-86138-2012
Opinion delivered by Justice Evans, Chief
THE STATE OF TEXAS, Appellee Justice Wright and Justice Myers
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 21st day of May, 2015.
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