IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD–0498–17
WILLIAM ROGERS, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRTEENTH COURT OF APPEALS
REFUGIO COUNTY
K EEL, J., delivered the opinion for a unanimous Court.
OPINION
A jury convicted Appellant of aggravated assault and burglary of a habitation with
commission or attempted commission of aggravated assault. The court of appeals vacated
the aggravated assault conviction on double jeopardy grounds because it was a lesser
included offense of the burglary. Rogers v. State, 527 S.W.3d 329, 336 (Tex. App. –
Corpus Christi 2017, pet. granted). We granted review of the court of appeals’ holding in
the burglary case that the trial court’s refusal to instruct the jury on self-defense and
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necessity, if error, was harmless. Id. at 333. We conclude that the trial court’s refusal to
instruct on self-defense and necessity, if error, was harmful to the defense. Consequently,
we reverse and remand for the court of appeals to decide whether the trial court’s ruling
was erroneous.
Standard of Review
When jury charge error is preserved at trial, the reviewing court must reverse if the
error caused some harm. Cornet v. State, 417 S.W.3d 446, 449 (Tex. Crim. App. 2013);
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). “Some
harm” means actual harm and not merely a theoretical complaint. Cornet, 417 S.W.3d at
449; Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012); Almanza, 686
S.W.2d at 174. There is no burden of proof associated with the harm evaluation. Reeves
v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). Reversal is required if the error
was calculated to injure the rights of the defendant. Id., quoting Almanza, 686 S.W.2d at
171. The harm evaluation entails a review of the whole record, including the jury charge,
contested issues, weight of the probative evidence, arguments of counsel and other
relevant information. Cornet, 417 S.W.3d. at 450; Almanza, 686 S.W.2d at 171. The
harm evaluation is case-specific. Cornet, 417 S.W.3d at 451.
Failure to instruct on a confession-and-avoidance defense is rarely harmless
“because its omission leaves the jury without a vehicle by which to acquit a defendant
who has admitted to all the elements of the offense.” Cornet, 417 S.W.3d at 451. Self-
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defense and necessity are confession-and-avoidance defenses. Gamino v. State, 537
S.W.3d 507, 511 (Tex. Crim. App. 2017) (self-defense); Juarez v. State, 308 S.W.3d
398, 404 (Tex. Crim. App. 2010) (necessity).
In Cornet, this Court found one of the rare cases in which the trial court’s refusal
to instruct on a confession-and-avoidance defense was harmless. The defendant was
charged with three counts of aggravated sexual assault of a child alleged to have occurred
on or about the same date. He was convicted of digital penetration of the female sexual
organ and oral-anal contact with the child. 417 S.W.3d at 449. The defendant denied the
oral-anal contact but sought to justify the digital penetration with the medical care
defense. This Court reasoned that the trial court’s refusal to instruct on that defense was
harmless because it applied only to digital penetration, and it was “inconceivable” that the
jury would have found the defendant guilty of the oral-anal contact but not guilty of the
digital penetration if given the opportunity to apply the medical care defense. Id. at 452.
Despite the lack of instruction, the prosecution urged rejection of the medical-care
defense, so it appeared “that the jury considered and rejected appellant’s claim that his
contact with the complainant was for her medical care.” Id. at 454. “It is clear that the
jury believed the complainant and disbelieved [the defendant’s] claims that he was only
touching the complainant with his hand to provide medical care.” Id. at 452.
As we detail below, this case is distinct from Cornet because Appellant’s proposed
defenses applied to both his charges, but unlike Cornet’s jury, Appellant’s never heard
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mention of the defensive issues in any context and had no opportunity to consider them.
This left Appellant with one path to an acquittal for burglary: consent to enter given by
the co-owner. But that path was obstructed by the prosecution’s explanations of and
arguments about the meaning of consent and by the trial court’s exclusion of
corroborating testimony about the co-owner’s consent. Because of the foregoing, the
court of appeals’ reasoning does not hold up to scrutiny. Consequently, unlike in Cornet,
it is not inconceivable that a juror would have harbored a reasonable doubt about
Appellant’s guilt if given the opportunity to consider the defensive issues.
We turn now to the record before us.
The Record
Evidence Before the Jury
The complainant, David Watson, testified that Appellant was hiding in his master
bedroom closet and ambushed him with a gunshot to the scrotum when he came home
from work on February 14, 2013. Upon being shot, the complainant grabbed Appellant
with one hand and the pistol with the other, jamming his fingers into the trigger
“mechanism” to prevent Appellant from firing again. He rammed Appellant backwards
into the closet, and then they struggled over the gun throughout the house. During the
struggle the complainant managed to grab a hunting knife, and they struggled over that,
too. Eventually, Appellant escaped the complainant’s grasp and fired at him but missed.
When Appellant retreated to a bedroom, the complainant left via the front door and ran a
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zigzag pattern to his neighbor’s house while Appellant shot at him from the front porch,
again missing him. The complainant and neighbors saw Appellant drive away.
Appellant, on the other hand, claimed that he had been engaged in an affair with
the complainant’s wife, Sandra Watson, and entered the house that day at her request to
feed her cats. The complainant arrived home unexpectedly, and Appellant could not open
the back door or a window to exit undetected, so he hid in the closet. According to
Appellant, the complainant knew that someone was in the closet and entered it
brandishing a hunting knife. Appellant reached for the .380 pistol that was next to him on
top of the gun safe. The complainant grabbed his hand, and Appellant pulled the trigger.
He and the complainant then struggled throughout the house for control of the knife and
the gun until Appellant dropped the knife, and the complainant twisted the .380 out of his
hand. Appellant then pulled his .45 pistol from his pocket and shot back toward the
complainant to get him to stop. The complainant exited the house through the front door.
Still unable to open the back door, Appellant left through the front door, too. He heard
“pop” and saw the complainant behind a tree. Appellant returned fire in the
complainant’s direction as he tried to flee. He stumbled and dropped his gun, but he
reached his truck and got away.
Sandra Watson did not testify.
Other Relevant Information
A singular circumstance underlay the trial of this case: The trial court granted the
Rogers–Page 6
State’s pre-trial motion in limine to prohibit the defense from mentioning any justification
defenses. The State’s position was then and still is that Appellant’s self-defense claim
was barred because he was unlawfully carrying a weapon, and he started the fight. The
State relies on language in the self-defense statute that authorizes a presumption that the
actor’s belief that force was immediately necessary was reasonable if, among other things,
the actor “was not otherwise engaged in criminal activity” more serious than a Class C
misdemeanor. T EX. P ENAL C ODE § 9.31(a)(3). Failure to fulfill the condition for the
presumption, however, does not bar a self-defense claim. The State also fails to
recognize that a defensive issue must be submitted to the jury if it is raised by any
evidence, even if that evidence is contradicted or weak. Krajcovic v. State, 393 S.W.3d
282, 286 (Tex. Crim. App. 2013).
The trial judge, however, agreed with the State and enforced his ruling on the
motion in limine throughout the trial. The defense could not qualify the venire on any
justification defenses, mention them in opening statement, offer any evidence in support
of them or argue them in closing. This left Appellant with one avenue for acquittal in the
burglary case: Sandra’s consent. As for the aggravated assault charge and the aggravated
assault element of the burglary case, he was left with no avenue for acquittal.1
1
Justification defenses like necessity and self-defense apply to “the conduct in question.”
TEX . PENAL CODE § 9.02. “‘Conduct’ means an act or omission and its accompanying mental
state.” § 1.07(10). Justification defenses thus apply to elements that are lesser-included offenses
of the crime charged, as, for example, the aggravated assault element of the burglary charge in
this case.
Rogers–Page 7
The court of appeals acknowledged that the trial court’s rulings prevented
Appellant from incorporating the defensive issues into his case but felt constrained to
“examine the record for harm as it is and not how it might look if the trial court had made
different rulings.” Rogers, 527 S.W.3d at 334, fn. 1. The court of appeals held that
Appellant’s compliance with those rulings, i.e., his failure to rely on self-defense or
necessity before the jury, weighed against a finding of harm. Id., 527 S.W.3d at 333.
We used similar reasoning in Cornet. “Appellant’s counsel did not mention the
medical-care defense expressly or implicitly, and he appeared to disavow it by
characterizing appellant’s conduct as ‘definitely inappropriate behavior,’ and by arguing
that ‘inappropriate is not the question.’” Cornet, 417 S.W.3d at 454. But we also noted
that the prosecution argued against the medical-care defense, suggesting that the jury
considered and rejected it. Id. In this case, however, the jury had no opportunity to
consider or reject either necessity or self-defense because the trial court’s rulings
prohibited any mention of them. Those rulings are other relevant information that may
inform the harm analysis and should be considered as such.
The court of appeals instead looked to the punishment verdict for other relevant
information and held that the 40-year sentence assessed by the jury for first degree
burglary demonstrated “that the jury felt appellant bore substantial blame for the events
inside [the complainant’s] house.” Id. at 334. Although the jury did not assess the life
sentence urged by the prosecution, it did assess “a sentence substantially above the
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minimum” which indicated its belief “that appellant was significantly blameworthy.” Id.,
quoting Gonzales v. State, 474 S.W.3d 345, 353 (Tex. App. — Houston [14 th Dist.] 2015,
pet. ref’d).
Assuming for the sake of argument that a heavy sentence might suggest
harmlessness from an erroneous failure to instruct on a defensive issue, the life sentence
in Gonzales is substantially higher than the 40-year sentence assessed here, and
Appellant’s prior California conviction for fatal child abuse and the victim impact
testimony in the punishment phase likely played a significant role in the jury’s sentencing
calculus. More importantly, however, it is difficult to draw any reliable conclusions
about the jury’s assessment of Appellant’s blameworthiness when it was prevented from
hearing any defensive theories, evidence or argument.
The Jury Charge
“Owner” was defined as “a person who has title to the property, possession of the
property, or a greater right to possession of the property than the person charged.”
“Effective consent” was defined in the abstract as “assent in fact, whether express or
apparent, and includes consent by a person legally authorized to act for the owner.” The
application paragraph authorized conviction if the jury found beyond a reasonable doubt
that Appellant entered a habitation “without the effective consent of David Watson, the
owner, and therein attempted to commit or committed the felony of aggravated assault
against the said David Watson[.]” Appellant’s testimony conceded his commission of the
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offense as defined in the application paragraph.
Contested Issue: Consent
The defense did not mention consent in voir dire but argued in closing that Sandra
could and did consent to his entry into the house and that the evidence of her consent was
uncontroverted.
The prosecutor spent considerable time on consent in voir dire. He correctly
defined consent but also asserted that “the law in Texas is that consent, if any, of any
party other than the owner named in the indictment is irrelevant in a burglary case.” That
assertion is wrong. See Villanueva v. State, 711 S.W.2d 739 (Tex. App. — San Antonio
1986), pet ref’d, 725 S.W.2d 244 (Tex. Crim. App. 1987) (per curiam) (evidence was
insufficient to support burglary conviction where defendant entered house with consent of
a co-owner). The prosecutor further muddied the waters by asking hypothetical questions
designed to illustrate the immaterial proposition that consent to enter a home does not
equate to consent to commit crimes in the home. He repeated that theme in closing,
telling the jury that Sandra may have consented to defendant entering the house for the
purpose of feeding the cats, “but she sure as heck never gave any kind of effective
consent for William Rogers to go into the house and shoot her husband.”
The only direct evidence of Sandra’s consent was Appellant’s testimony because
the trial court excluded the corroborating testimony of Sandra’s daughter, Catarina
Rosheck, that she heard Sandra tell Appellant to feed the cats while she was out of town.
Rogers–Page 10
The prosecution capitalized on that ruling by pointing out in closing argument that the
only evidence of Sandra’s consent was Appellant’s testimony. “And all that we have is
just her – excuse me, the defendant’s testimony that he had her permission to go there to
feed the cats that day.” Appellant’s claim that Sandra consented to his entry into the
house was supported circumstantially by the lack of forced entry into the house, his
apparent deactivation of the burglar alarm with a code, and his possession of a key to the
Watson house when he was arrested.
Physical Evidence
Investigators found, among other things, three shell casings outside the front door,
two fired rounds embedded in walls inside the house, one of which passed through the
complainant’s thigh when Appellant shot him, a live round and a shell casing in the
kitchen, a hunting knife in the utility room area and blood throughout the house.
The court of appeals cited three examples of physical evidence that it claimed
favored the prosecution and supported its conclusion that any jury charge error was
harmless. Rogers, 527 S.W.3d at 334. First, it cited a lack of shell casings found by the
tree from behind which Appellant claimed the complainant shot at him. Id. But there
was no evidence that anyone searched the yard for shell casings. Second, it cited the
presence of shell casings outside the front door. Id. But Appellant admitted shooting at
the complainant from that location as he fled the house. Finally, the court cited the lack
of blood in areas where Appellant claimed he struggled with the complainant in the
Rogers–Page 11
house, thus contradicting his testimony in those respects. The court’s opinion did not
specify where the blood was lacking, but the State argued in closing that there was no
blood in the photos of the front door or the gun cabinet. Id. But the lack of blood by the
front door would also arguably contradict the complainant’s testimony that he exited the
front door after having been shot. Moreover, the exact locations of the two men’s
struggle shed no light on the only issue contested before the jury, i.e., Sandra’s consent to
Appellant’s entry into the house, or on the viability of the defensive issues rejected by the
trial court. Thus, the lack of blood in the photographs does not assist the harm analysis.
Analysis
This case is distinct from Cornet. Appellant’s jury, unlike Cornet’s, had no
opportunity to consider the defensive issues; and unlike the medical care defense at issue
in Cornet, necessity and self-defense applied to both charges that Appellant faced. Thus,
the logic of the Cornet opinion does not apply here; it is not inconceivable that a juror
would have had a reasonable doubt about Appellant’s guilt if given the opportunity to
consider the defensive issues.
The trial court’s embargo of the defensive issues left Appellant with a single path
to acquittal of burglary: Sandra’s consent. The jury was prevented from fairly
considering the issue because the State erroneously claimed that Sandra’s consent was
irrelevant. That claim was superficially supported by the application paragraph and by
Appellant’s admission that he had no consent from the named complainant to enter the
Rogers–Page 12
house. Further, the trial court excluded the proffered corroboration of Appellant’s
testimony about Sandra’s consent, a ruling that the prosecution exploited by arguing that
Appellant was the sole source of testimony about Sandra’s consent. The State further
undermined the jury’s fair consideration of the consent issue by conflating consent to
enter with consent to commit a crime. Given these circumstances, the jury’s implicit
rejection of Appellant’s claim about Sandra’s consent does not support a conclusion that
it also would have rejected his justification defenses.
Similarly, the jury’s punishment verdict is not persuasive evidence of harmlessness
of any guilt phase jury charge error since the jury’s assessment of Appellant’s
blameworthiness was made without any consideration of the defensive evidence.
Deprived of any mention of possible defenses, the jury could not have made an informed
decision about blameworthiness.
On this record, the trial court’s refusal to instruct the jury on the defensive issues,
assuming it was error, was calculated to injure the rights of the defendant.
Conclusion
We reverse the court of appeals’ judgment and remand for a determination of
whether the trial court erred in refusing to instruct the jury on self-defense and necessity.
Delivered: June 27, 2018
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