Opinion filed August 17, 2023
In The
Eleventh Court of Appeals
__________
No. 11-21-00254-CR
__________
JAYLENE ANN GREEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 161st District Court
Ector County, Texas
Trial Court Cause No. B-20-0393-CR
MEMORANDUM OPINION
On December 25, 2019, Rick Britton was outside grilling steaks, when his
stepdaughter, Jaylene Ann Green (Appellant), used her cell phone to video record as
she shot him in the neck at close range and as he bled out and died on the ground.
Appellant, was charged by indictment for murder, which alleged that she
intentionally and knowingly caused the death of her stepfather by shooting him with
a firearm. See TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2019). The jury found
Appellant guilty of murder as charged in the indictment and assessed Appellant’s
punishment at thirty years’ imprisonment in the Institutional Division of the Texas
Department of Criminal Justice and an $8,000 fine. The trial court sentenced
Appellant accordingly. In her sole issue on appeal, Appellant challenges the trial
court’s refusal to submit Appellant’s requested self-defense instruction in the trial
court’s charge. We affirm.
Factual and Procedural History
Appellant testified that, on December 25, 2019, she shot and killed her
stepfather outside his home in Ector County. Appellant testified that she shot him
with the intent to kill him, because she constantly felt threatened by him and that it
was either “him or me.”
According to Appellant, her stepfather first entered her life when she was two
years old when he married her mother. When Appellant was eleven, her stepfather
and her mother divorced, but when Appellant was sixteen, she moved in with her
stepfather and lived with him for two years. Appellant testified that when Appellant
was nineteen years old, she asked her stepfather for financial assistance, and her
stepfather offered to provide the requested financial assistance in exchange for sex.
Appellant accepted the offer. This exchange continued intermittently, when
Appellant was in need of money, up until her stepfather’s murder. Appellant
testified that her stepfather would occasionally threaten her and expected her to have
sex with him whenever she visited him in Odessa. Appellant testified that, a few
months before her stepfather’s murder, during one of her visits, Appellant told him
that she would not have sex with him and he got angry. Appellant testified that she
then threw a candle at his head, and her stepfather then punched her very hard in the
chest. She testified that, due to that injury she went to the emergency room, had a
chest x-ray and used Lidocaine patches on her chest for three months.
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In 2019, approximately seven years after the first time her stepfather had paid
Appellant for sex, Appellant was placed on probation for two DUIs. Appellant
testified that she needed a stable living environment according to the terms of her
probation, and that her stepfather offered to provide that for her. Her DUI probation
in Colorado was transferred to Ector County, Texas. Despite testifying that she felt
threatened by her stepfather, Appellant moved in with him approximately a week
before the murder. Appellant testified that her stepfather expected to “get lucky”
every night while she was living with him and that she was in constant fear for her
life, but that she felt she had to stay there to meet the terms of her probation.
Appellant testified that her life was unstable; she was a “high functioning
alcoholic,” and her stepfather was a source of financial help. The record includes
her admissions that (1) the alleged sexual aspect of Appellant’s relationship with her
stepfather began consensually at age nineteen in exchange for financial help and his
permission to consume alcohol; (2) shortly before the murder she took sexual
photographs of herself and offered to sell them to her stepfather; (3) she had texted
him with offers of sex for money in the past; (4) he paid her credit card bills, bought
her a car, paid for the vehicle’s gas and insurance; (5) she stole checks from him,
filled them out and cashed them without permission; and (6) there was a pattern of
her repeatedly returning to her stepfather, having sexual relations at his insistence,
and of him taking care of Appellant financially.
In the months leading up to the murder, prior to having moved in with her
stepfather again, Appellant told a friend multiple times of her desire to kill her
stepfather. So, clearly, her ideation of killing her stepfather was not “a spur of the
moment thing.” Appellant testified that she had been contemplating it for months.
Appellant testified that the morning of the murder, her stepfather demanded
and received sex from Appellant. He told Appellant that he would cook her a steak
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for dinner that night and expected to have sexual relations after dinner. While
observing her stepfather that evening standing at the grill outside cooking steaks, she
explained that she “wanted to see the joy and, . . . the happiness that could come
from that,” ostensibly sharing a meal on Christmas Day, but that because she “just
knew what was coming afterwards, that it was not happy or joyous to [her].”
Appellant testified that, “[she] had just seen the steak dinner, and [she] just . . .
snapped.” Appellant retrieved a gun from inside the home, walked up to her
stepfather, and shot him in the neck. Appellant video recorded the shooting with her
cell phone. Appellant called a friend, who did not answer, and then texted the friend
“he’s dead.” It was only after this exchange that Appellant called 9-1-1.
During the charge conference, Appellant requested a self-defense instruction,
which the trial court denied. The jury found Appellant guilty of murder as alleged in
the indictment, and assessed Appellant’s punishment at thirty years’ imprisonment
in the Institutional Division of the Texas Department of Criminal Justice and an
$8,000 fine.
Standard of Review and Applicable Law
A review of an alleged jury charge error involves two steps. Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g); Graves v. State, 452
S.W.3d 907, 910 (Tex. App.—Texarkana 2014, pet. ref’d). “We first determine
whether error exists.” Graves, 452 S.W.3d at 910 (citing Ngo v. State, 175 S.W.3d
738, 743 (Tex. Crim. App. 2005)). “If there is no error, our analysis ends.” Id.
(citing Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012)). Second, if
there is error, we must determine if the error resulted in sufficient harm to require
reversal. Ngo, 175 S.W.3d at 743–44.
“Regardless of the strength or credibility of the evidence, a defendant is
entitled to an instruction on any defensive issue that is raised by the evidence.”
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Jordan v. State, 593 S.W.3d 340, 343 (Tex. Crim. App. 2020) (citing Hamel v. State,
916 S.W.2d 491, 493 (Tex. Crim. App. 1996)). “A defensive issue is raised by the
evidence if there is sufficient evidence to support a rational jury finding as to each
element of the defense.” Id. (citing Shaw v. State, 243 S.W.3d 647, 657–58 (Tex.
Crim. App. 2007)). “We view the evidence in the light most favorable to the
defendant’s requested defensive instruction.” Id. (citing Gamino v. State, 537
S.W.3d 507, 510 (Tex. Crim. App. 2017)). A trial court errs if it refuses to submit a
requested self-defense instruction if there is some evidence, viewed in the light most
favorable to the defendant, that will support its elements. Id.
“[I]f the evidence, viewed in the light most favorable to the defendant, does
not establish self-defense, the defendant is not entitled to an instruction on the issue.”
Gaspar v. State, 327 S.W.3d 349, 356 (Tex. App.—Texarkana 2010, no pet.)
(quotinq Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001)). “It is well
settled that an accused has the right to an instruction on any defensive issue raised
by the evidence, whether that evidence is weak or strong, unimpeached or
contradicted, and regardless of what the trial court may or may not think about the
credibility of the evidence.” Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App.
1999). However, if the evidence viewed in a light favorable to appellant does not
establish the defensive issue, an instruction is not required. Id. “The defendant’s
testimony alone may be sufficient to raise a defensive theory requiring a charge.”
Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984). “Whether a defense
is supported by the evidence is a sufficiency question reviewable on appeal as a
question of law.” Shaw v. State, 243 S.W.3d 647, 658 (Tex. Crim. App. 2007).
Not all charge errors require reversal on appeal. Reeves v. State, 420 S.W.3d
812, 816 (Tex. Crim. App. 2013). If the charge is erroneous, then on appeal we must
first determine if the defendant objected to the erroneous charge. Id. If the defendant
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objected to the erroneous charge, we will reverse if the record shows that the error
caused “some harm.” Id. Conversely, if the defendant failed to object, an appellate
court may only reverse upon a finding of “egregious harm.” Id. Egregious harm is
harm that denies the defendant a fair and impartial trial. Nava v. State, 415 S.W.3d
289, 298 (Tex. Crim. App. 2013). This is a difficult standard to meet, and the harm
must be shown in the record. Reeves, 420 S.W.3d at 816. To assess harm, the
appellate court reviews the Almanza factors: (1) the jury charge itself; (2) the state
of the evidence, including weight and probative value; (3) counsel’s arguments; and
(4) any other relevant information in the trial record. Vega v. State, 394 S.W.3d 514,
521 (Tex. Crim. App. 2013); Almanza, 686 S.W.2d at 171.
Section 9.31 of the Texas Penal Code states 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 . . . against the other’s use or attempted use of
unlawful force.” PENAL § 9.31(a) (emphasis added); see Henley v. State, 493 S.W.3d
77, 89 (Tex. Crim. App. 2016). It further clarifies, in relevant part, that the actor’s
belief that force was immediately necessary is presumed to be reasonable if the actor
knew that the person against whom force was used was “committing or attempting
to commit . . . sexual assault.” Id. § 9.31(a)(1)(C). The use of deadly force against
another is justified “if the actor would be justified in using force against the other
under Section 9.31,” and the actor reasonably believes that deadly force is
immediately necessary to prevent the other’s imminent commission of sexual
assault. Id. § 9.32(a). A reasonable belief is a belief that would be held by an
ordinary and prudent person in the same circumstances as the actor. PENAL
§ 01.07(a)(42) (West 2021). “The use of force against another is not justified in
response to verbal provocation alone.” Gamino v. State, 537 S.W.3d 507, 510 (Tex.
Crim. App. 2017).
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Analysis
In her sole issue on appeal, Appellant challenges the trial court’s refusal to
include Appellant’s requested self-defense instruction in the trial court’s charge. In
her brief, Appellant asserts that she was entitled to a self-defense instruction
regarding her use of deadly force pursuant to Sections 9.32(a)(1), (a)(2)(B) (Deadly
Force in Defense of Person) and Section 9.31(a)(1)(C) (Self-Defense). To be
applicable, these sections of the Penal Code require that Appellant “reasonably
believe[] [that] the deadly force [was] immediately necessary to prevent [her
stepfather’s] imminent commission of sexual assault,”; or, at least to be entitled to
the presumption that her belief was reasonable, that at the time, her stepfather “was
committing or attempting to commit” sexual assault. See PENAL § 9.32(a)(2)(B),
(b)(1)(C); Barron v. State, 630 S.W.3d 392, 404 (Tex. App.—Eastland 2021, pet.
ref’d). During the charge conference, the trial court questioned whether evidence
was presented to entitle Appellant to the instruction, particularly whether evidence
had been presented that her deadly force was immediately necessary or whether
harm to Appellant was imminent.
Appellant contends that the evidence presented at trial included some
evidence that the shooting was done in self-defense to avoid being sexually assaulted
by her stepfather and that, under the Almanza standard, she suffered actual harm by
the exclusion of the requested self-defense instruction. In this regard, Appellant
argues that her numerous accounts of sexual assault and the physical and mental
abuse that she was subjected to, along with her stepfather’s demand to have sex the
evening of the shooting, caused her to reasonably believe that it was immediately
necessary for her to use deadly force against her stepfather to protect herself from
being sexually assaulted by him.
Sections 9.31(a)(1)(C) and 9.32(a)(2)(B) each provide a presumption that an
actor’s belief that their use of force or deadly force, respectively, was immediately
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necessary is reasonable when the person against whom the force is used commits or
attempts to commit sexual assault. There is no applicable presumption here.
Appellant’s cell phone video clearly shows that her stepfather was not, at the time
of the commission of the murder, committing or attempting to commit sexual assault
against Appellant such that the circumstance would entitle Appellant to a
presumption under either Section 9.31(a)(1)(C) or 9.32(a)(2)(B). Further, there is
no evidence that Appellant’s stepfather was sexually assaulting or was attempting to
sexually assault Appellant at the time she shot him.
Appellant testified that he had not been physically violent during this last
occasion of moving in with him in the week prior to the murder. There is no evidence
of violence or a threat of violence by her stepfather if there was future resistance to
his sexual advances toward Appellant, or if she decided to leave as she had done
many times previously. In the videos recorded by Appellant on the day of the
murder, including the video of the actual shooting, the stepfather does not appear to
be or sound mad or angry, and he does not threaten Appellant.
Appellant was questioned multiple times about the obvious option of just
leaving. Appellant testified that she would stay a week or two, and that she had the
freedom to leave and go wherever she wanted. She chose to be around her stepfather
and she did not testify to any threat that prevented her from leaving or compelling
her to stay, other than his financial help while she lived with him. Appellant testified
that she felt “immediate threat” at “all times,” in response to trial counsel’s leading
question, but Appellant provided no specific words nor described any actions of an
immediate threat or harm by her stepfather. She admitted that, at the time of the
shooting, her stepfather had not attempted and did not attempt to strike her, that he
had no gun or knife in his hand, and that he did not threaten her. Appellant admitted
that, in approaching her stepfather, she walked by two sets of car keys on the kitchen
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counter that could have been used to leave, instead of staying and shooting her
stepfather. He was not threatening her or sexually assaulting her or attempting to do
so at the time of the shooting. Instead, the video captures Appellant walking up to
her stepfather, who appears to be unarmed and standing at a grill, and shooting him
in the neck. Appellant admitted that, at the time she approached her stepfather, he
was unarmed and was not threatening her or “raping” her.
Appellant asserts on appeal that—through her testimony—she raised the issue
of self-defense. The State argues that no evidence was admitted to support or require
a self-defense instruction. We agree. There was no evidence of an immediate need
for her to use deadly force. Her stepfather was not committing, or attempting to
commit sexual assault, imminently or otherwise, at the time Appellant shot him. See
PENAL §§ 9.32 and 9.31. Rather, Appellant described a pattern of financial duress-
induced conduct that she repeatedly subjected herself to, but in which she was free
to walk away at any time, and often did. But then she continued to return.
In the self-defense context, force is “immediately necessary” to protect
oneself from a person’s use of unlawful force only if it is needed at that moment—
i.e., “when a split second decision is required.” Henley, 493 S.W.3d at 89–90.
Appellant’s deadly force was not immediately necessary. Instead, Appellant
explained that she finally “just snapped” and took her stepfather’s life. See
Reynolds v. State, No. 07-11-00500-CR, 2012 WL 6621317, at *4 (Tex. App.—
Amarillo [Panel Op.] Dec. 19, 2012, no pet.) (mem. op., not designated for
publication) (appellant’s statement that complainant’s act of kicking him caused him
to “snap” and strike the victim as an act of retaliation was not self-defense); Daisy v.
State, No. 05-01-01791-CR, 2002 WL 31528723, at *2 (Tex. App.—Dallas Nov.
15, 2002, no pet.) (not designated for publication) (an act of retaliation was not self-
defense).
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At the time of the murder, Appellant, who was in no immediate danger from
her stepfather, became the aggressor and was intending to retaliate against him. This
type of retaliatory behavior—which may prompt a victim to act in such a way as to
defend herself—does not fall within the ambit of self-defense. 1 Elrod v. State,
No. 06-22-00130-CR, 2023 WL 4485954, at *9 (Tex. App.—Texarkana July 12,
2023, no pet. h.) (mem. op., not designated for publication). This is because “[s]elf-
defense implies defensive and not offensive acts.” Witty v. State, 203 S.W.2d 212,
218 (Tex. Crim. App. 1947); Wilcox v. State, No. 06-22-00100-CR, 2023 WL
2546504, at *4 (Tex. App.—Texarkana Mar. 17, 2023, pet. ref’d) (mem. op., not
designated for publication); see also Mitchell v. State, 590 S.W.3d 597, 604–05 (Tex.
App.—Houston [1st Dist.] 2019, no pet.) (defendant was not entitled to use deadly
force when an unarmed aggressor let defendant go before defendant picked up a gun
and fired at the victim); Sanchez v. State, 418 S.W.3d 302, 310 (Tex. App.—Fort
Worth 2013, pet. ref’d) (defendant “acted out of anger, not protective instinct, in
pursuing the unarmed [complainant]”); Wilson v. State, No. 01-17-00788-CR, 2019
WL 346892, at *3 (Tex. App.—Houston [1st Dist.] Jan. 29, 2019, pet. ref’d) (mem.
op., not designated for publication) (no evidence of self-defense when defendant
shot a man who stepped back and threw his hands up after wrestling with defendant).
Appellant did not show that there was an immediate need for her to use deadly
force against her stepfather and thus failed to meet the requirements of self-defense
described in the Penal Code. We conclude that Appellant was not entitled to a jury
instruction on self-defense; therefore, the trial court did not abuse its discretion by
refusing to include such an instruction in the charge. See Henley, 493 S.W.3d at 89–
91; Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. Crim. App. 2013); Wesbrook v.
We note that, because there was no evidence that entitled Appellant to a self-defense instruction
1
under Section 9.31, Appellant necessarily was not entitled to a self-defense instruction under Section 9.32.
See PENAL § 9.32(a)(1) (the actor must first be justified in using force against the other under Section 9.31).
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State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000). Because we have concluded that
the trial court did not err in refusing to submit the requested instruction, we need not
conduct a harm analysis. See Ngo, 175 S.W.3d at 743–44; see also TEX. R.
APP. P. 47.1.
We overrule Appellant’s sole issue.
This Court’s Ruling
We affirm the judgment of the trial court.
W. BRUCE WILLIAMS
JUSTICE
August 17, 2023
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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