### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00866- CR

David Mark Isaacson, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. CR2009 -14 1, H ONO RAB LE CHARLES R. RAMSAY , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury found David Mark I saac son g uilty of two counts of ag g ravated assault on a peac e office r. See Tex. Penal Code Ann. § 22.02(b)( 2)(B ) (West 2011)

. The trial court assessed a sentenc e of fiftee n y ear s in prison. On appea l, I saac son contends that the trial court err ed by failing to instruct the jury on self-de fense , justifiable forc e, and mistake of fac t, and that th ese failure s improperly denied his ri gh ts to due process and trial by jury

. He also contends that the t rial court

err ed by overr

uling his objection to the admission of evidenc e conce rning an extraneous offe nse. We will affirm the judg ment.

BACK GR OUND

I saac son and Donna J ohnson had share d a house near Cany on L ake for almost a y ear befor e the incident at issue here

. On t he day of the incide nt, J ohnson moved her belong ings from I saac son’s house to an apar tment in San Antonio. I saac son and J ohnson met at a near by “ice house”at around 6:30 p.m., then I saac son went home. I saa cson was aslee p when J ohnson later arr ived

at the home around 9:30 p . m . with two men. The three companions enter ed the house and their

conver sation awa

kened I saac son, who did not apprec iate havingunknown g uests. When I saac son exhibi ted a handgun while reque sting that t h ey d ep art, the two men left in short order

. J ohnson testified that I saac son then aimed the handgun at her for sever al seconds, lowere d the wea pon, and returne d to his room.

About fiftee n minutes later (thoug h I saac son testified t h at he believed he had been aslee p for about an hour), Comal County sheriff ’s deputies came to I saac son’s house. J ohnson testified that, when she answe red the door, the deputies t o l d h er they wer e responding to a repor t of domestic violence. She acc eded to their requ es t t h at s h e step out onto the porch and

answe r questions. I saac son then opened the door, naked, holding a handgun. The office rs testified that I saac son pointed the g un at eac h of them and at J ohnson for up to a combined 30 seconds, that they eac h told I saac son six to eig ht times to drop his handgun, and that I saac son then turned around, went back in the house, and close d the door. Johnson contradicted the office rs’ testimony , stating t h at s h e never saw I saac son pointing his handgun at the office rs, that she hear d the office rs s ay something to I saac s o n b u t d i d n ot hear them repe atedly tell him to drop his wea pon, and that I saac son closed the door

afte r only

seven or eig ht seconds. I saac son testified that, before o pening the door, he believed that the men on the porch wer e the men he had ejec ted from his house ear lier, returning to reta liate. He opened the door beca use he believed that they otherwise wo u l d fo rcibly enter his home or that they might damag e his proper

ty or car . He admitted he was holding a handgu n when he opened the door, but denied

2pointing it at the office rs or J ohnson. He ag ree d that when order ed to drop the g un he instead turned

around a nd closed the door . I saac son denied pointinga gun at any one on the e vening in question.

DISCUSSIO N I saac son raises six issues on appea l, three of which relate t o i n structions he claims should have been given to the j ury and two encompa ssing constit u t i o n al cl aims based upon those instructions not g iven. I s aa cs o n ’s s ix th issue complains of t he admissi on of evidence conce rning his pointing of the gun at J ohnson, asser ting that the State’s failed t o p ro v ide the notification require d for introduc tion of an extraneous off ense.

F ailure to give defensive instructions I saac son contends that he was entitled to instructions on the defe nsive issues of selfdefe nse, justifiable forc e, and mistake of fa ct. A person is justified in using forc e ag ainst another 1 when and to the deg ree the actor rea sonably believes the forc e was immediately nece ssary to protec t the actor ag ainst the other’s use or attempted use of unlawful forc e. Tex. Penal Code Ann. § 9.31(a) (West 2011). The actor’s belief t hat t he force was immediately nece ssary

is presumed re asonable if t he actor knew or had rea son to believe that the person ag ainst whom the forc e was used was attempting to e nter the a ctor’s oc cupied ha bitation unlawfully

and with forc e. Id. § 9.31(a) (1).

I saac son discusses sleep automatism as a possible explanation for his behavior , speculating 1 that his having just woken up altere d his ability to perc eive and think in a wa y that excuses or justifies his conduct. He did not reque st an instruction specific ally addre ssed to this theory , howeve r, so it a ttaches to this appea l, if at all, throug h the three instructions that a re the subject of expressly stated issues on appe al. 3Def endants are entitled, upon reque st, to an instruction on ever y def ensive issue raised by the evidenc e whether that evidenc e is weak or strong , unimpeache d or uncon t ra d i cted, and reg ardle ss of the cre dibilit y of the defe nse. Alle n v. State , 253 S.W .3d 260, 267 (Tex. Crim. App. 2008); see also Tex. Code Crim. Proc

. Ann. art. 36.14 (West 2007). I f the defe ndant objects to the char g e err or, the judgme nt will be reve rsed if he shows some actua l (not theore tic al ) harm calc ulated to injure his rig hts. Almanza v. State , 686 S.W .2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’ g ). We assess the act u al d egr ee of harm in light of the entire jury char g e, the state of t h e evidenc e, including the contested issues and weig ht of probative evidenc e, the argumen t o f counsel and any other rele vant information reve aled by the rec ord of the trial as a whole. Id. When deter mining if the evidenc e require d g iving an instruction on a defe nsive issue, we view the evidenc e in the l ight most favor able to the defendant. See Ferrel v. State , 55 S.W .3d 586 , 591 (Tex. Crim. App. 2001).

Self -defense instruction To raise the issue of self-de fense , the acc used must admit the conduct char g ed in the indictment and then offe r self-de fense as a justification for the action. Anderson v. State , 11 S.W .3d 369, 372 (Tex. App.—Houston [1 s t Di s t
. ] 2 000, pet. ref ’d); Y oung v. State , 991 S.W .2d 835, 839 (Tex. Crim. App. 1999) (discussing defe nse of nece ssity as justification). Self-def ense is a justification for actions taken and is thus logic ally inconsistent with a denial of the conduct. Sanders

v. State , 707 S

. W

. 2 d 7 8 , 8 1 (T ex. Crim. App. 1986); see Y oung , 991 S.W .2d at 838. Admitting the “cha rg ed conduct” does not nece ssarily mean admitting the commission of ever y statutory element of the offense. Jack son v. State , 110 S.W .3d 626, 631 (Tex. App.—Houston [14t h Dist.]

42003, pet. ref ’d). But see Shaw v. State , 243 S.W .3d 647, 659 (Tex. Crim. App. 2007). I n Martinez 2

v. State , a defe ndant char g ed with mur der a dmitted to pull ing a g un, firing into the a ir, and having his fing er on the trig g er when the fata l shot was fired, but denied the element of “intent to kill.” 775 S.W .2d 645, 645-47 (Tex. Crim. App. 1989). The Court held that he had admitted committing the offe nse sufficie ntly to permit the trial court to consider whether the evidenc e supported his claim of self- defe nse enoug h to warr ant g iving the instruc tion. Id.

I saac son contends that he was entitled to an instruction on self-de fense

. He testified that he thought that his previous visitors had returne d to exact reve ng e afte r he encour ag ed them to leave while he held a handgun. He testified that he believe d that he nee ded to def end himself and his pr operty
. The State responds that I saac son failed to a dequate ly admit the offe nse of a ssault on a public ser

vant. We conclude that I saac son did not sufficie ntly admit the char g ed conduct to war rant a self- defe nse instruction. The tria l court desc ribed the of fense char g ed as f

ollows: A person commits the offense of assault i f h e i n tentionally or knowingly threatens another with immi nent bodily

injury

.

I n Shaw , the cour

t of criminal appe als wrote: 2 We have said with respe ct to defenses such as nece ssity and self defe nse that when the de fensive e vidence mere ly neg ates the ne cessa

ry culpable me ntal state, it will not suffice to entitle the defe ndant to a defe nsive instruction. Rather, a defe nsive instruction is only appropr iate when the de fenda nt’s defe nsive evidenc e essentially admits to ever

y element of t h e o ff

ense including the culpable mental state, but interposes the justification to ex cuse the otherwise c riminal conduct. Shaw v. State , 243 S.W .3d 647, 659 (Tex. Crim. App. 2007). 5A person commits the offe nse of ag g ravated assault on a pub l i c serva nt, if he commits the offe nse of assault, as hereinafter define d, to a public serva nt when he knows the person assaulted is a public serva nt while the public serva

nt i s l awfully discharg ing an officia l duty and he uses or ex hibits a deadly wea pon during the commission of the assault.

I n the application para g raph, the trial court specifie d that the jury must deter mine whether I saac son committed the offe nse by pointing a g un at the office rs. I saac son denied pointing t h e gu n at the deputies, said that he ke pt the handgun pointed at the floor a t all times, denied knowing they wer e peac e off i ce rs b ef ore opening the door, and testi fied that “I wasn’t threatening any body

. I wasn’t hurting any

body .” T he only aspec t of the char g ed offe nse he admitted was exhibi ting a handgun in the prese nce of others, which is not nece ssarily an offe nse—much less an assaultive one. His admission that he exhibi ted a we apon did not pa ss the threshold of admission that require s a cour t to provide a se lf-def

ense instruc tion to the offense of ag g rava ted assault of a

public serva

nt. Threats as justifiab le force instruct ion I saac son also contends that the trial court should have instructed the jury on the permiss i b i l i t y of threats as justifiable forc e. A threat of forc e is justified if the use of forc e is justified under Chapter 9 of the penal code. See Tex

. P en al C o d e Ann. § 9.04 (West 2011). J ustifications include public duty , nece ssity , protec tion of persons, protec tion of proper ty , law enfor ceme nt, o r a specia l rela tionship. See id. §§ 9.01-9.63. Self-def ense is the only one of the justifications listed in Chap ter 9 that I saac son claimed, so he must show at least some evidenc e raising a question of whether he was entitled to threa ten to use forc e. As we have discussed above, he did not show himself entitled to a n instruction on the use of forc e throug h self-de fense beca use he did not admit the basic conduct of the assaultive offe nse. See Y o u n g , 9 9 1 S .W.2d at 839. He 6admitted only to opening the front door while holding a handgun pointed at the g round. He did not

admit to threatening the men on the porch and expressly denied pointing the handgun at any one, testifying “I wasn’t threatening any body .” I saac son did not show himself entitled to the use of forc e

or an instruction on using the threat of forc e for self-de fense

. He has not shown that the trial court

err ed by ref using to instruct the jury

on threat as justifiable forc e.

Mistake of f

act instruct ion I saac son also contends that the trial court should have instructed the jury on mistake of fac t. I t is a defe nse to prosec ution that the actor throug h mistake formed a reasonable belief about a matter of fac t if his mistaken belief neg ated the kind of culpability require d for the offe nse. Tex. Penal Code Ann. § 8.02 (West 2011). I saac son contends that his mistaken belief reg arding the identity and intentions of the men on his porch neg ated his culpability for the offe nse of ag g ravated assault on a public se rvant.

We need not decide whether the trial court err ed as asser ted beca use we conclude that the nature of the offe nse and the instruction g iven rende red harmless any such err or in the omission of a mistake-of- fa ct i n s t ruction. The failure to g ive a reque sted instruction on mistake of fac t

can be harmless if the instructions g iven encompa ss th e substance of the defe nse. W illis v. State , 802 S.W .2d 337, 340 (Tex. App.—Dallas 1990, pet. ref ’d). The statute at issue in this case define s the offe nse in part a s an assa ult “ag ainst a person the actor knows is a public serva nt.” Tex. P enal Code Ann. § 22.02(b)(2)(B ) (W est 2011). I n addition to the ge nera l instruction set out above, the trial court char g ed the jurors that, to convict, they must find beyond a rea sonable doubt that I saac son knew the me n on the porc h wer e public ser vants, stating a s follows:

7Be aring in mind the fore g oing instructions, if y ou find bey ond a reas o n ab l e doubt

that on or about the 16th day of November , 200 8 , i n t h e County of Comal and the State of Texas, DAVI D MARK I SAACSON, here inafter sty led Def endant, did then and there intentiona l l y or knowing ly threaten Tom By ford with imminent bodily injury by pointing a ha

ndg un at the said Tom By ford, and did the n and ther e use or exhibi t a deadly wea

pon, to-wit: a handgun, during the commission of said assault, and t h e d ef

en d an t did then and there know t hat t he said Tom By ford was then and there a public serva

nt, to-wit: a Comal County Deputy , and that the said Tom By ford was then and there lawfully discharg ing an officia l duty , to-wit: i n v es tiga ting a possible criminal si tuation, as charg ed in Count 1 the indictment and so answer on verdic t form Number

1. Unless y ou so fin d b ey ond a rea sonable doubt, or if you have a rea sonable doubt t h er eo f, y ou will acquit the Def endant of the offe nse of ag g ravated assault on a peac e office r as char g ed in Count 1 of the indictment and so answe r on verdic t form Number 1. (Emphase s added.) The trial court instructe d the jury simil arly reg ardingthe other de puty
. Under this instruction, the jury could convict I saac son only by fin d i n g bey ond a rea sonable doubt that I saac son threate ned the men on the porch while knowing that they wer e publi c servants. Be cause the penal code and the instruction g iven require that the defe ndant know that the victim is a public

servan t— i.e. do not allow for the defe ndant to be mistaken about the victim’s occupation—the mistake-of- fac t defe nse would have been redunda nt in this case . The denial of I saac son’s reque st for a mistake-of- fac t instruction was, if er roneous, ha

rmless.

Constitutional claims I saac son contends that the trial court’s failure to instruct the jury o n s el f- d efense, mistake of fa ct , an d justified threat of forc e denied him a fair and impartial trial and there by his rig ht to due proce ss and due course of law under the fede ral and state constitutions. See U.S. Const. amend. XI V; Tex. Const. art. I , §§ 13, 19. He al s o co n t en d s that the failure impaired his rig ht to

8trial by jury under the fede ral and state constitutions. See U.S. Const. amend. VI & XI V; Tex. Const.

art. I , § 10, 15. As we have discussed, howeve r, the trial court did not deny I saac son any instruction that he was entitled to under the statutes and rules g overning the jury char g e or, if it err ed by denying the instruction, the er

ror wa s harmless. The instructions g iven require d the jury to make a f inding of g uilt bey ond a re asonable doubt on ever y element of

the offe nse. Even if the failure to g ive the mistake-of- fac t instruction wer e somehow constitutional err or, the fac t that t he instruction g iven require d the jury to find the absenc e of mistake of fac t bey ond a rea sonable doubt rende rs such err or, if any , harmless even under the standard for constitutional err or. See Tex. R. App. P. 44.2(a) (upon finding constitutional err or subject t o h armless err or revie w, court must reve rse unless it finds bey ond a rea sonable doubt that the err or did not contribute to the conviction)

. W e conclude that I saac son has not shown any depriva tion of due proce ss or due course of law, of a fair and impartial trial, or of the rig ht to a trial by jury

.
Adm ission of evid ence I saac son asser

ts that the trial court erred by allowing the State to elicit J ohnson’s testimony that I saac son pointed a gun at her befor e law enfor ceme nt officer s arrived. Rule of Evidence 404 deems evidenc e of other crimes, wrong s, or acts admissible to show proof of motive, opportunity , intent, a

nd other fac tors so long a s—upon timely reque st by the defe ndant—the State gi v es rea sonable notice of its intention to introduce such evidenc e in its case -in-chief. T ex . R

. Evid. 404(b). The State is not, howeve r, require d to g ive notice of its intention to offe r evidenc e of other crimes, wrong s, or acts arising in the same transac tion as the char g ed offe nse. See id .; see also Patton v. State , 25 S.W .3d 387, 392 n.4 (Tex. App.—Austin 2000, pet. ref ’d).

9Wh e th e r e v id e n c e o f a n incident aside from the char g ed offe nse is admissible as being part of the same transac tion is a fac t-driven and case -spec ific deter mination. I t is admissible when “seve ral crimes are intermix ed, or bl en d ed with one another , or connec ted so that they form an indivisi ble criminal transac tion, and full proof by testimony , . . . of any one of them cannot be g iven without showing the others.” Rogers v. State , 853 S.W .2d 29, 33 (Tex. Crim. App. 1993) (quoting Maye s v. State , 816 S.W .2d 79, 86-87 n.4 (Tex. Crim. App. 1991)). The court of criminal appea ls has held that “it has long been t h e ru l e in this State that the jury is entitled to know all rele vant surrounding fac ts and circ umstances of the char g ed offe nse; an offe nse is not tried in a v ac u um.” Moreno v. State , 721 S.W .2d 295, 301 (Tex

. C ri m . App. 1986). Same-tra nsaction contextual evidenc e is admissible only to the extent that it is nece ssary to the jury ’s u n d er s t an d i n g of the offe nse. W

yatt v. State , 23 S.W .3d 18, 25 (Tex. Crim. App. 2000). I t is a dmissibl e only when the offe nse would make lit t le or no sense without also bring ing in the s ame- transac tion evidenc e. Id. We can rev er s e t h e trial court’s admission of same-tr ansac tion evidenc e only if it constitutes an abuse of discretion. Blakene

y v. State , 911 S.W .2d 508, 514 (Tex. App.—Austin 1995, no pet.). Whether two incidents are part of the same transac tion is depende nt on fac ts such as the nature of the incidents, the parties involved, the location, and the passag e of time. The analy sis is based on a combination of facts and is subject t o the court’s discre t i o n . For instance, the Tyler Court of Appea ls opined that a trial court err ed by concluding that an alleg ed attempted forc ed entry at a pr ivate home oc curr ing twelve hours afte r a prison esca pe wa s part of the same e pisode as the

esca pe. Fitzgerald v. State , 722 S.W .2d 817, 819-20 (Tex. A pp.—Tyler 1987), aff’d , 782 S.W .2d 876, 880 (Tex. Crim. App. 1 9 9 0 ). The court of criminal appea ls aff irmed, concluding that the evidenc e of the subsequent brea k-in did not tend to prove any element of the offe nse of esca pe from
10prison. Fitzgerald , 782 S.W .2d at 880. On the other hand, the c ourt of cr iminal appeals he ld that

a trial court consi dering the murder of a state trooper did not err by admitting evidenc e that the defe ndant had kil l ed p eople thirty minutes ear lier using the same g un used to kill the trooper. Moreno v. State , 721 S.W .2d 295, 301 (Tex. Crim. App. 1986). The court held that the evidenc e of the prior murders put the killing of the trooper in context and was “extremely rele vant” to showing appellant possesse d the murder wea pon shortly

befor e the troope r wa s killed. Id. There is no d ef

i n ed m ax i mum term of hours for events to be part of the same transac tion. The Four

teenth Court of Appe als upheld the a dmission of same-transa ction evidenc e from a police office r who testified reg arding the defendant’s activities observe d over se vera l day s befor e his arr est for possession with intent to deliver a controlled substance

. Moreno v. State , 195 S.W .3d 321, 327 (Tex. App.—Houston [14t h Dist.] 2006, no pet.). The defe ndant was arr ested when, afte r a traff

ic stop, he dropped a

cig are tte box containing heroin. Id

. at 324. The trial court permitted the police office r’s testimony that he had observe d the defe ndant for sever al day s and seen him complete what appea red to be a hand-to-ha

nd transac tion involving narc otics. Id

. at 323. The court of appea ls held that the trial court did no t abuse its discretion by concluding that testimony reg arding the previous appar ent drug transac tion was “admissible to show the context in which the criminal act occur

red, and this behavior was rele van t to show that appellant had the intent to deliver.” Id

at 327. We conclude that the t rial court did not abuse it s d i s cr et i on by permitting J ohnson to testify that I saac son pointed his handgun at her befor e peac e office rs arr ived. The State had g iven notice that it intended to call J ohnson about the confr ontation that prec eded (and likely prec ipitated) the arrival of the pe ace office rs, but the State di d not tell I saac son that J ohnson intended to testify
11that I saac son pointed his handgun at her. The trial court could rea sonably have deter mined that I saac son’s alleg ed action of pointing a g un at J ohnson was part of the same transac tion and provided context for the peac e office r’s response . The trial court could also rea sonably have conclude d that the testimony bear s on the rea sonablene ss of I saac son’s alleg ed ex p ec t at i o n that the men on the porch wer e the re ce n t ly evicted visitors rathe r than peac e office rs responding to a repor t of a domestic disturbance

. We find no abuse of discretion in the admission of this evidenc e without the statutory notice beingg iven on these f acts.

CONCLUSION Finding no reve rsible err or amon g I saac son’s issues on appea l, we aff irm the judgme nt of conviction.

J eff Rose, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Affir med Filed: May

10, 2013 Do Not Publish

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