## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02- 23

- 00229 -CR No. 02

- 23 -0 0230

- CR

___________________________

On Appeal from the 372nd District Court Tarrant County, Texas Tr ial Court No s . 1672326, 1672331

Before Bassel, Wom ack, and Wallach , JJ. M emorandum Opinion by Justice Bassel 

### M ICHAEL 

### D AVID 

### C ORONADO 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORA NDUM OPINION
I. Introduction Appe llant Mi chael David Coronado appeals his convictions for aggravated robbery and aggravated assault with a deadly weapon

— a knife

. See Tex. Penal Cod e A nn. § § 22.0 2(a)(2) (aggravated a ssault with a deadly weapon ), 29.03 (aggravated
robber y)

. In three issues, Appellant argu es that the trial court caused him e gregious
h a rm by failing to charge the jury on nonde adly forc e self

- defense instead of deadly
force self

- defense , that the trial court erred by fail ing to instruct the jury on the lesser

included offense of assault in the aggravated

- robbery case , and that the trial c ourt caused him e gregious harm by failing to charg e the jury on self

- def ense for th e lesser

included offense of assau lt. With regard to the jur y charge in the aggravated

- robbery

case, although Appellant was not entitled to any s elf

- defe nse instruction, we conclude
that t he dead ly force self

- defe nse instruction that was given did not cause egre gious
harm. With regard to the jur y charge in the aggravated

- assault case, we conclude that the trial court did not err by failing to giv e a nondeadly force self

- defense instruction
becaus e there is no evid ence demonstrat in g that Appellant displayed the k nife solely

to create an apprehension that he would use deadly force if necessary , thus failing to
show that he was entitle d to a nondea dl y force self

- defense instruction

. Because Appellan t did not request a lesser

- includ ed instruction on assault in his a ggravated

ro bbery case, we hold that the trial c ourt had no duty to sua sponte submit one.
Acc ordingly, we affirm.3 II. Background
Nahes i Parmes , a b arber stylist in Crowley, testified th a t she went to the C hase
Bank to m ake her daily deposit on the eveni ng of Januar y 25, 2021

. When she pulled into the parki ng lot, there were no other cars, but there was a man in the bushes. Parmes park ed her car but left it running while she went into the ATM build ing.
W hen she came ou t of the bui lding, the man from the bushes walked toward he r. Parmes said that the man was wearing a black hoodie, a ski mask wit h something
wrappe d around it, and some gray shorts or pants. When Parmes o pened the door to her car, the man mumbled som ething that she did not understand. Parmes asked what he was saying, and he asked her for money; she told him to “ g o on. ” The man

co ntinued mumbling and “ ha d his hand on the s ide of him. ” When Parmes asked
what he was doing, “ that ’ s when the knife came up from underneath the jacket ” ; she
said that “ he popped [the knife] out in between his hand and th e jacket. ” At that point, Parmes took her gun out of her bra and laid it on the dashboard.
A t first, the man backed up, but then he started com ing toward Parmes. After Parmes said, “ W hat is a knife to a gun fight , ” the ma n sta rted wiggling his k ni f e in a
circula r motion a nd continued c oming towards her ; she testified that she feared for her
life

. The man said, “ B

-- c h, ” and Parmes said, “ This is not what w e ’ re going to do. ” He
continued walking t owa r d Parmes , but when he was three steps away from he r, he4 started walki ng a way toward a nearby Kroger

. He continued mu mbling and eventually threw something at Par mes ’ s car. Parmes called 9 1 1 1 and fol lowed the man in her car

. Parmes watched as t he man walked to the Kroger p arking lot and started pulli ng on the doo r handles of parked v ehicl es . He approached several people who

“ brushed him off. ” The man then approached an older man ( Larry Lee ) a fter h e h ad
exi ted the store with his gr oce ries and had popped open his trunk t o load them into
his veh icle

. The man started talking t o Lee and got aggressive, pulling a knife on Lee.
Lee then ran back into the store. The ma n kicked over Lee ’ s grocer y baske t , tried to
stab Le e ’ s dog ( who was in the car with the window partially rolled down ) , and started walking towards Cousin ’ s and Wells Far go with his knife ou t
. Lee , who wa s retired after a thir ty

- yea r car eer at B ell Helicopter , testified abou t
h is en counte r with the man at Kroger on the evening of January 2 5, 2021

. Lee said
that he went inside to get groceries a n d left his dog in the car; Lee left the window
par tial ly down so that his dog could get some air

. When Lee e xite d the store with his shopping car t full of groceries and went to his car to unload them into his trunk , h e

saw a man who was standing o n a grassy median near the passenger window and wh o

was staring at him. Lee asked the man what he was loo king at; t he man replied, “ I ’ m looking at you, m other f

-- ker. ” Lee told the man that he needed to mo ve on because
he was “ fixing t o call the cop s. ” Lee pulled out his phon e. The man told Lee, “ Put that phone up [;] I want your mon ey [,] and if you don ’ t put that phone up, I ’ m going

1 The recording of her 9 1 1 ca ll was introduc e d into evid enc e.5 to stab you. ” Lee p ut his phone back in his pocket, and the man stepped t o ward Lee
and partially pulled a knife out of his p ocket ; Lee said that he saw the h andle and a
section of the blade

. Lee testified that he was in fe ar of imminent bodily injury or
death when the man a pproached him with the kni fe. Lee u sed his ha nd and hit the

man “ upside the temple , ” and the man fell backwards o ver t he cu rb. Lee r an back
ins ide the Kroger. Lee saw the man get up and take a couple of steps toward Kroger,
before the man retu rned to Le e ’ s car a nd start ed stab bing the knife at his do g 2 while

“ cu ssing up a storm
. ” The man then went to the back of Lee ’ s car and fli pped over the grocery cart, dumping Lee ’ s groceri es on the ground, before running toward s FM
1187

. Lee calle d 911 and lea r ned that the police were already on th eir way.
The pol ic e r esponded to the scene and apprehen ded the man that Parmes had described to the 911 operator ; the man was ultimately id entified as Appellant though he initially provided var i ous fa ls e names . 3 The bod y
- cam v ideo from Appella nt ’ s arrest shows that he was found nea r th e Wells Fargo bank with a knife in his pocket.
After Appellant was ar rested, the bo dy

- cam video recorded t h e officer ’ s conversation with Lee at the scene; Le e identified Appellant as th e per son who had
attacked hi m . Le e said that after he had walked out of the store with his groceries, Appellant was standing there looking at him , and L e e asked what Appellant was

2 Lee later testi f ied that his dog was not h armed

.
3 One of t he officer ’ s body

- cam videos demonstrate s that Appellant g ave the name “ Clemon K l ay. ” During cross

- examination, Appellant denied hav ing lied to th e police about his name. The State played the body

- cam v ideo during rebutt al.6 looking at. Appellant re sp onded , “ I ’ m looking at you , mother f

-- k er. ” Lee a sked,

“ What ’ s the problem her e? What have I do ne to you? ” Appellant pulled ou t a k nife and said he needed money ; Lee responded t hat he did not have any ca sh

. Lee told App ella nt that he would call the police, and Appellant told him to put his phone away
and then threatene d to cut Lee ’ s “ f

-- king throat

. ” App ellant swung at Lee, and Le e ran into the store ; Appe ll ant t hen stabb ed at Lee ’ s dog who was i n th e car with the window partially roll ed down

. Lee told the officer that h e feared for his life because Appella n t was v ery near him. Lee said that if Appellant had n ot po ssessed a knife, he
would have “ kn ocke d his ass out. ” The body

- cam video also recorded the officer ’ s conve rsa tion with Parmes ; she
also identified Appellant at the scene as the person who had accos ted her at Chase
B an k. Parmes said that Ap pell ant had approached her as she exited the bank and had asked her for money

. Parmes told Appellant that she cou l d not help him. Appellant
mumbled some things that Pa rmes did not understand as sh e was gett ing in her car,
and then he called her a b

-- ch. Parmes pulle d out h er gun and laid it on the dash. Appellant pulled a knife out and acted l ike he was g oing to stab her , and Par mes asked
who he thought was g oing to win. Appellant started walking off , a nd onc e Par mes started driving away, Appellant threw some t hing at her vehicle. P arm es said that she
then c alled the police.
Duri ng Appellant ’ s case in chief, he took the stand. Appellant t estified that on the night in question, he was homeless and h ad r e cently gotten some money from7 panhandling. He used the money to purch ase “ some of the Asian food that was r i ght next to the Krog er. ” Afterwards, he walked around and as ked people for money
because he was no t ready to go to bed and ha d pl anned to sle ep in that area over night. According to Appellant, he saw P armes pull up at the bank and was goin g to ask her for money, but then he saw her pull her gun out and put it on the dash. Appellant
testified that he did not h a ve a chance to say anything to Par mes because she “ did n ’ t give [him ] a chance to sa y anything. . . . She had gotten an a ttitude with [him] ” ; she told him to get away from her. Appellant said that he never waved a knife around in front of her
but instead took a golf bal l out of his pocket and th r e w it at her car to try to di stract her
so that he could walk a way . 4 Appellant then w alked across the stree t to Kro ger. Appellant saw a man ( Lee) with groce ries and thought he c ould make some
extra money by helping him put his gro ceries in his ca r. Ap pellant said that he did not
ask L ee f o r money but instead asked i f he “ could put his grocery cart up. ” Appellant
testifie d that Lee “ got an attitude ” with him and threatene d him

. Ap pellant said that
he fl ipped over the grocery car t becau se he was trying to get away from Lee

. Appellant was asked about Lee ’ s testimony regar ding pulling out his phone and
statin g that he was going to call the police; A ppellant responded, “ That di dn ’ t happen
in front o f me. ” Appellant wa s als o asked about Lee ’ s punch i ng him a nd g ave contradictory answers:

4 Ap pellant t estified that Par me s “ actua lly put [him ] in danger

. ” He agr eed that he had been afraid that Parmes was going to hurt him i f he did no t l eave “ because she ’ s a lot bigger than [him]. ”8 Q. Yeah. Did he punch you?
A. He didn ’ t land a hit on me, but l ike he tried to, and that ’ s when I pushe d his grocery cart over [] bec ause I was trying to g et away. Q. Did you fall backw ards when he tried to hit you?
A

. Y es, sir. Q. So he swung at you [,] and you fell down?
A. No. I jumped back [,] and then I pushed the grocery cart out of the way. I pushed the grocery cart l ike towards him, but i t was off to the side. Q. Okay. So did you fall to the g round?
A. I did not fall to the ground. Q. Okay. But he did swin g at you?
A. Yes, sir. Q. And you were able to duck or miss, avoid it?
A

. Like it wasn ’ t really like a big swing, like he just put his fists up a litt le bi t [;] you know what I mean [ ?] Appellant testified that he d id not pu ll out a knife when he was near Lee and that he
doe s not cus s at people

. He sa i d that after pushing the car t over, he walked away

. He
said that bot h Parm es and Lee had bad attitudes and “ kind of shooed [him] aw ay like [he ] was just some homeless kid. ” 5

5 It is unc lear why Appellant made a referen ce to a kid; he te stified th a t h e was thirty

- t wo years old.9 Appellant a greed th at he had en countered “ a little bit of trou b le with the law in the p ast. ” He admitted that he had served jail tim e for a felony conviction for burglary of a habitation, a felony conviction fo r possession or man ufacture/delivery
of a controlled sub stance, and a conviction for bur glary of a b uilding.
On cro ss

- examination, Appellant agreed that he had a knife i n his pocket that evening and that he w as a ttempti ng to obtain money from both P arm es and Lee

. Appellant said that Pa rmes had stopped him in the middl e of his asking he r for money
and h ad shooed him away. Appel lant explained that she had pulle d a gun on him
because he was a st rang er to her and becau se he had approach ed her car. Appellant
reiterated that he never showed Parmes or Lee his knife and said t h at he could not figure out how they knew that he h ad a knife on him on the nig ht in question

. With rega rd to the encounter with Lee, Appellant said that he never got a ch ance to ask hi m for mo ney ; he was planning to do that after he aske d Lee if he

n eeded h elp putting his groceries in hi s car. Appellant opined t hat both Parmes and
Lee could tell that he was t r ying to ask for money even though he “ did n ’ t get the
chance to as k [the m ]. ” Ap pellant said that he did not have h i s knife out an d did not try
to stab Lee ’ s dog; he merely tried to pet the dog. Appellant testifi ed that he trie d to pet the dog before he went around the c ar to ask Lee if he needed help with his groceries. Appellant b elieved that Par m es and Lee had lied about his pulling out his knif e. But Appe llant a greed that Parmes had correctl y testifi ed t hat he had thrown something at her car and that she had put h e r gun on the dash. When th e prosecutor10 stated, “ There ’ s n o reaso n two people who didn ’ t know [App ellant] wou ld make up
this stor y for n o reas o n, ” Appellant responded , “ Of course the y wo uld. . . . There is a conspiracy against me. ” After hearing the evidence, the jury found Appellant guilty of aggrav a ted

ro bbery of Le e as charged in the indictment an d aggravated assault with a deadl y
weapon of Parmes as charged in the ind i ctm ent. The trial court held a sentencing hearing and assessed Appellant ’ s puni sh m ent at forty years ’ con finement on the aggravated

- robbery charge a nd at thirty

- five yea rs ’ confinemen t on the aggravated

as s aul t

- with

- a

- deadly

- weapon charge. The trial court ordered the sentences to run

c oncurrently. This appeal followed.
III. T he Self

- Def ense In struction s In hi s firs t issue , Appellant argues that the trial court caused him egregious
harm in both cases b y instructing the jury that self

- defens e was justified only i n response to deadly force

. Specifi cal ly, Appellant cont ends that this was err or b ecause neither indictment alleged deadly force but rather use of force or threat of force. The

crux o f App ellant ’ s argument is that the trial court should have gi ven a nondeadly
force self

- defens e instruction in b oth cases instead of a dea dly force self

- defe nse instruction. For the reasons explained below, Appe llant ’ s argument fails.11 A
. Standard of Review
We must r eview “all alleged jury

- charge error .

. . regardl ess of preservation in the

tr

ial court.” Kirsch v. State , 357 S.W.3d 645 , 64 9 (Tex. Crim. App. 2012). In reviewing a jury charge, we first determine whether error occurred; if not, our analysis ends

. Id. Unless a particular statute places a duty on a tr ial court to give an instruction , the tr ial court generally need not inst ruct the jury sua sponte on unrequested
traditional defenses and defensive iss ues because they are not “law applica ble to the

c ase.” See Tex. Code Crim. Proc. Ann. art. 36.14; Te x. R . App. P. 33.1; Vega v. State , 3 9 4 S.W.3 d 514, 519 (Tex. Crim. App. 2013) ; se e Oursbourn v. State , 259 S.W.3d 159, 180 (Tex. Crim. App. 2008). When a trial court sua sponte instructs a jury on self

d efense , as it did here, it assumes a duty to deliver a c orrect instruction. Mendez v.
St ate , 54 5 S .W.3d 548, 553 (Tex. Crim. App . 20 18). Because A ppellant did not object to the unrequested self

- defense inst ruction in each case , any error is subject to an egregi ous harm analysis. Id. at 5 52

– 53 ; Richards v. Sta te , N o. 05

- 22

- 01158

- CR, 2024
WL 1 736374, at *4 (Tex. App.

— Dallas Apr. 23, 202 4, no pet. ) (mem. op. , not designated for publication ).
To determine if th e jury charge egregiously harmed Appellant ,

we exami ne the record as a whole, including the entire jur y charge, the evidence, the cont ested issues, and the arguments o f couns el, and anything else in the reco rd t hat informs o ur analysis. [ Almanza v. Sta te , 686 S.W.2d 157, 171 (Tex. C rim. App. 1985) (o p. on reh ’ g) .] In
ex amining the evidence, reviewing courts must consid er “the plausibility of the evid ence raising the defense.” Villa rreal v . State , 453 S.W.3d 429, 436 (Tex . Cr im. App. 2015). Egregious har m exists if the error affects12 the very basis o f [Appellant ’ s ] case, deprives him of a valuable right, or vitally affe cts a defensive theory. [ Thanh Cuong ] Ngo [ v. State ] , 175 S.W.3d [738,] 750 [ ( Tex. Cr im. App. 2005)]

. The record must bea r out that Ap pel lant suffered actual harm, not theoretical har m, and neither party has [a] burden to show harm. Id. Lozano v. State , 6 3 6 S.W.3d 2 5, 29 ( Tex. Crim. App. 2021). “ [J]u ry

- charge error is egregiously ha rmful i f it affects the very basis of th e ca se, de pri ves the defendant of a valuable right, or vi tally affects a defens ive th eory. Sanch ez v. State , 209 S.W.3d 117,
1 21 (Tex. Crim. App. 2006).
B. Applicable Law
This court has previously set forth the inte rplay b etween the self

- d efense laws
and the distincti on between a nondea dl y force versus a deadly forc e self

- defense
instruction as found in Penal Code S ections 9.04, 9.31, and 9.32:
Unde r Section 9.31 of the Texas Penal Co de, a person is justified in usin g nondeadly force when and to the degree the actor re aso nably believes the force is immediately necess a ry to protect the actor against th e other ’ s use or attempted use of unlawful for ce, except in the limited circumstances provided in Section 9.31(b). See Tex. Penal Code Ann. § 9.31(a); Gamino [ v. State ] , 5 37 S.W.3d [507,] 510 [ (Tex. Crim. App. 2017)]

. S i milarly, under Penal Code Section 9.32, a person is justified in using deadly force if [the person] would be justified i n using fo rce under Section 9.31 and [the person] reasonably believes that deadly forc e i s im medi ately necessary to protect [the person ] against another ’ s use or attempte d use of deadly force. See Tex. Penal Code Ann. § 9.32(a)(1)

– (2)(A); Trammell [ v. Sta te ] , 287 S.W.3d [336,] 341 [ (Tex. A p p.

— Fort Worth 2009, no pet.) ] ; see also Tex. Penal Co de Ann. § 9.0 1(3) (defining “deadly force” as force “intended or known b y the act or to cause, or in the manner of its use or intend ed use is capable of causing, death or serious bodily injury”). A “r easonable belief” is “a belief that would be hel d by an ordinary and prudent man in the same circumsta nces as the actor.” Tex. Penal Cod e Ann. § 1.07(a)(42).13 Deadly [ ] force self

- defens e may not apply to the tried facts e ven if a defendant is charged wit h using or displaying a deadly weapon. Gamino , 537 S .W. 3d at 510

. T hat is because under Penal Code S ection 9.04, “a threat to cause dea th or serious bodily injury by the production of a weapon or otherwise, as long as the actor ’ s purpose is limited to cr eating an apprehension that he will use deadly forc e if necessary , do es not constitute the use of dead ly force.” Tex. Penal Cod e Ann. § 9.04. Because Section 9.04 provides that “[t]he t hreat of force is justified when the use of force is justified by [the self

- defense] chapter” of the Penal Code, Section 9 .04 is not a sep arate statutory defense; it is in corporated into the law of self

- def ense. Gamino , 537 S.W.3d at 510. Thus, even thou gh [Appellant] was charged with using a deadly weapon, if the evidenc e presented at trial triggered the application of Sec tio n 9 .04, h e wo uld be entitled to an instruction on nondeadly force under Section 9 .31, rather than an instruction on deadly [ ] force self

- defense under Section 9.32. Se e id.
Windham v. State , No. 02 -19- 00063

- CR, 2021 WL 386951, at * 12

– 13 (Tex. App.

— Fort
Wo rth Feb

. 4, 2 021, no pet.) (mem. op., not desi gnated for publication ) (f ootnote

o mitted) ; see also Happy Tran Pham v. State , 639 S.W.3d 708, 7 12

– 13 (Tex. Crim. App. 2022) (summar izing Gamino and stating that “Se ction 9.04 comes with an express
limitation ” because “ [i]t applie s on ly when ‘ th e actor ’ s purpo se is l imited to creating
an appr ehension that he will use deadly force if necessary ’”). As summari zed in
Windham , Appellant wa s entitled to a Section 9.04 and 9.31 instruction
i f there [was] some evidence, ev en if contradi c te d, that he believed the display of his [ weapon] was immediately ne cess ary to protect himself ag ainst the victim ’ s use or attempted use of unlawful force, th at his purpose in displaying his weapon was limited to creating an apprehensio n that h e would use deadl y fo rce if necessary, and that h is conduct was not in response to v erbal prov ocation alone

. Id. at *1 3– 14. And a person cha rged with robbery is not entitled to any self

- defense instruction :14 [W ] hen a defendant is accused o f eit her murder o r assaulting his victim, the defendant is entitle d to an instruction on the law on self

- def en se and/or the defense of others if he presents s ome evidence, even if contradicted , that he reasonably believed his u se of force was immediately n ecess ary to prote ct himself or a third pa rty against his victim ’ s unprovoked use or attempted use of unlawfu l force.

. . . Howeve r, the same is not true when a defendant is accused of robbery. Whil e the Penal Code allows a pe rson to respond to another ’ s use of fo rce by u sing equivalent force to pro tect himself or a thi rd party, i.e. [,] by ass aulting or even ki ll ing the other person, t he [Penal] Code does not allow a person to respond to another ’ s use of f or ce by committing a
w holly unrelated offense against the pe rson, su ch as by committing a ro bber y. Thus, as other co urts have recognized, a defendant who is
c ha rged with the offense of robber y and/or aggravat ed robbery has no legal right to cla im self

- def en se against his inten ded victim [] and is therefore not enti tled to receive a self

- defense i nstr uction. See [ , ] e.g. [ , ] Russell v. State , No. 05

- 17

- 00124

- CR, 2 01 8 WL 525559, at *10 (Tex. App.

— Dalla s Jan. 24, 2 018, pet. ref ’ d) ( [mem. op.,] not de signated for publication) (de fend ant had no right to a jury instruction on self

- defense with regard to robb ery allegations in in dictment); Toliver v. State , No. 01

- 87

- 005 91

- CR, 1988 WL 15126, at *1 (Tex. App.

— Houston [1s t Dist.] Feb. 25, 1988, pet [.] ref ’ d

) (not design ated for publicatio n ) (defendant accused of aggravated rob bery was not entitled to a self

- defe nse instruction); Gor man v. State , No [ s ] . 04

- 03

- 00311

- CR, [ 04

- 03

- 00312

- CR, ] 2004 WL 24 50875, at *1 (T ex. App.

— San Antonio Nov. 3, 2004 , pet
. ref ’ d) ( [mem . op. , ] not desig nated for pub lication) (defendant charged wit h agg ravated robbery with a deadly weapon had no right to rece ive a jury instruction on the law of self

- defense ).
Macias v. St ate , No. 08

- 17

- 00144

- CR, 201 9 WL 4058584, at *5 (Tex. App.

— El Paso Aug. 28, 2019, pe t. ref’d ) ( no t designa ted for pub lication)

. C. The Indictm ents an d the Jury Charge s The indictment in the aggra vated

- robbery case char ged th at Appellant

o n or about the 25t h day of January 2021, in the Count y of Tarran t, State of Texas, d id intentionally or knowingly , while in the cour s e of committing th eft of p roperty and with intent to obtain or main tai n co ntrol of said property, threaten o r place Larry Lee in fear of i mmi nent15 bodily injury or death, and the defendant used or exhibited a deadly weapon, namely, a knife [

. ] [ All caps remo v ed for ease of r eading.]
The indictment in the cas e in vol ving the offense of aggravated assault with a deadly weapon s tat ed that Appellant “ o n or about the 25 th day of January 2021, in the
Count y of Tar r ant, State of Texas, did intentio nally or knowi ngly threaten immine nt bodi l y injur y to Nahesi Par me s, a nd [ App ell ant] did use or exhibit a deadly weapon dur ing the commiss ion of the assault, namely, a knife. ” [All caps remo ved for ease of reading.]
The jury charge in b oth case s incl uded the following self

- defense ins tru ction:
I f you all agre e t he [ S] tate has proved, beyond a reasonable doubt , each of the e lem ents listed above, you must next consider whe t her the defendant is not guilty bec a use his use of force was justifie d by self

- defe nse. A person ’ s use of deadly fo r ce again st another t hat constitutes the crime of aggravated robbery [ 6 ] is justified by s elf

- defense when the person reasonably believed t he deg ree of force used was immediat el y necessary to protect the pers on against the other ’ s use or attempted use of unl aw ful de adly force.
Th e use of deadly force against another is not just ified in respon se to verbal provocation alone. The defendant mu st have r easonably believed the othe r person had done more than verba lly provoke th e defendant.
The defendant is not re quired to prove se lf

- d efense. Rather, the [S] tate must prove, beyond a reasonable dou bt, that self

- defense does not apply to the defen dant ’ s conduct

.

. . . .

6 The jury charge in the aggr av ated assault case correctly replaced the p hrase

“ agg rav ated robbery ” with “ aggravated as sault with a deadly weapon. ”16 “ Deadly fo rce ” means force that is inten ded or known b y the person using it to cause death o r seri ous bod ily i njur y or force that in the manner of its use or inten ded use is capa ble of causin g death or serious bodily injury.
D. Analysis 7
1
. Self

- De fense Charge in the Aggravated

- Ro bbery Case Appellant argues that by inclu ding a self

- defense i nstructio n, the trial court was obligated t o correctly charge the jury, and thu s under the e vidence, the trial co urt should have instructed the jury on nondeadly force, rather than deadly force, self

7 Appellant ’ s argu ment, which is not segregate d base d on the two off enses , is difficult to int erpret. Under the heading stating that “ [t] he trial court only in s tructed th e j ury on self

- defense justifi ed b y [ d ] eadly [ f ] orce, ” Appellant notes t hat he was charged with “ aggravated assault ” and “ aggrav ated robbery ” and argues that “ [ n

] either indictment alleged [d]eadly [f] orce. Both indictments alleged the [u] se of [f ]o r ce or [t] h rea t of [f]orce. ” Appellant follows that sectio n wi th a hea ding stating that “ [t]he trial court shou ld have instruct ed the jury on self

- def ense justified by the [u] se of [f ] or ce or [t]hreat of [f]orce. ” Unde r that head ing , App ellant quotes the P enal Code ’ s definition of deadly force , q uote s from the indictment in each ca se regarding his threaten ing t he victims with imminent bodily injury or death, and admits that each indict ment alleged that he had used or ex h ibited a d ead ly weapon during the commission o f the respective offenses. Appellant follows that s tatement with a nonsensic al se nte nce :
“ However, if the allegations of a threat, then th e use or exhibiti on of a deadly we apon does amount to [d]eadly [ f ] o rce. ” He conclud es that section by quoting Penal Cod e Section 9.04 and then proceeds to a harm analysi s. Appellant ’ s approach

— quoting Penal Code provisions but not analyzing them or apply ing them to the f a c ts present ed he re and failing to proofread to ensure that his brief present s a cle ar argument

— puts this court i n the unenviable role of min d reader. See Standar ds fo r Appe llate Conduct, Lawyer s’ Dut ie s to the Co ur t ¶ 5 , Texas Rules of C ourt (State) 32 0

– 2 1 (W est 202 4 ) (“ Counse l wi ll present the Court with a thou ghtful, organized, and cl early wr itten brief .”) ( avail able a t h ttp ://w ww.tx c ou rts.gov/media/1437423/standards

- for

appellate

- conduct.pd f ) ; see also Tex. R. App. P. 38.1 (i) ( stating that appellant ’ s b rief

“ must conta in a c lear and concise argument for the co ntentions made ” )

.17 defense. But Appellant concedes th at a defe ndant who is charged with the offense of aggravated rob b ery “ cannot be entitled to a self

- defense instru ction

. ” 8 Appellant is
correct because a s explained a bove, a defendant who is charged with the offense of aggravated robbery ha s no l egal right to claim self

- def en s e against his intended vict im
and is therefore not entitled to receive a sel f

- defense instruction. See Macias , 2019 WL
40585 84, at *5. We therefor e assume that the trial c ourt erred by giving a self

- defense
instruc tion in the aggravated

- robbery case.
Des pite the erro r, it did not cause Appellant egregious ha rm. An erro ne ous self

- defense instruction does n ot dep rive a defendant of a f air an d impartial trial if the
evidence does not le gitimately raise the issue of se lf

- defense. See Richards , 2024 WL
17363 74, at *5

. H ere , analyzing the Almanza factors, the fa ctors weigh ag ainst a finding of egregious harm b ecause ( 1 ) the evidence did not warr ant a ny self

- defense
instruction because Appellant either approached Lee wit h a knife wit hout any provocation or nev er displa yed a knife to Lee , ( 2 ) the jury charge ’ s self

- defense
instruction gave Appellant a windfall of a possible acquittal on an improper basis and
elevate d the State ’ s b urden by requiring it to disprove a d efen se to which Appellant

was not entit le d , an d (3) the argu m ents of counsel about a defens ive issue that was

no t ra ised by the evidence benefitted Ap pellant. S ee Lozano , 636 S.W.3d at 3 4

– 35

8 As d is cu ssed b elow, Appellant also argues that the trial co urt should have charged the jury on the les s er

- included offense of assault so that an acquittal based on self

- defense c o uld be possible.18 (h old ing that trial court ’s deadly force s elf

- defense instruction in charge did not egregiously harm appellant ).
Acco rdingly, we hold that Appellant did not suffer egregious harm from the
trial court ’s inclusi on of the dead ly force sel f

- defense instruction in the agg ravated

robbery case. We overru le the portion of Appellant ’ s first issue that rela tes to the
agg ravated

- r obber y case . 2
. Self

- Defense Ch arge in the Aggravated

- Assault Case 9
A s re phrased by the Sta te, “ The claim on appeal is that the self

- defen se char ge should have allowed the jury to f irst decide whether Appellant ’ s d ispla y of a knife was
for a law ful purpos e as provided by

. . . Penal Cod e . . . [Section ] 9.04 ” and that

“ [s] u ch a fi nding would hav e guid ed the j ury ’ s determination [regarding] w hether Appellant ’ s for ce was deadly or non d ead ly

. ” Essentially, Appellant ’ s argu ment on

a ppeal is that the tri al cou rt sh ould have given a Section 9.31 nondead ly force self

defense instruction in stead of a Section 9.32 deadly fo rce sel f

- defense instruction, despite the f ailure of Appellant ’ s brief to cite either of these sections of the Penal
Code. A s explain ed i n the appli cabl e

- law section above, A ppellant was entitle d to an

9 For purp oses o f the analysis in the aggr avated

- assault case, we a ssume wi thout deciding that Appellant was entitled to a se lf

- d efense in struction. See Prox v. State , No. 2

- 09

- 232

- CR, 2 010 WL 2133012, at *8 & n.8 (Tex. A p p.

— Fort Worth Ma y 27, 2010, pet. ref ’ d

) (per curiam) (me m . op. , not designate d for publi cation) (assum ing without de cidin g that appellant was entitled to an instruction on se lf

- defe nse even though he denied using a weapon, much less a deadly weapon, to de fend himself).19 instructi on on non de adly force self

- defense under S ec tion 9.31 if the evidence triggered applica tion of S ection 9.04. See Gamino , 537 S.W.3d at 510

. H ere, the record sets forth three ver sion s of t he ag grav ated

- assault offense:

• Parmes testi fied that Appellant poppe d out the k nife between his shirt and jacket , tha t she then took her gun out of her bra and l aid it on the
dashboard , and that Appellant then came toward her and wiggled the kni f e

at her.

• Parme s to ld police at the scene (as showed in th e body

- cam video) that af ter Ap pellant called her a b

-- ch, she p ulled out her gun and laid it on the
dashbo ar d and that Appellant then pulled out a knife and acted li ke he was going to stab her.

• App ella nt tes tifie d th at he never pulled out his knife. Excluding Appellant ’ s testimon y ( whi ch would not entitle him to any s elf

defense instruction ) and looking solely at Par mes ’ s trial testi mony and her statement to the police , the one consisten t t h e m e is t hat Appell ant n e v e r displayed the knife

— in
response t o a n ot her ’ s use or attempted u se of de adly force

— solely to create an apprehension that he would use deadly force if necessary

. According to Par mes ’ s trial

tes timony , Appellant displayed his knife before she displ ayed her weapon ; A ppellant ’ s action , which wa s not in re sponse to a n ot her ’ s use or attempted use of de adly force ,20 thus do es not f it within Section 9.04

. 10 According to the body

- ca m video , Par mes displayed her weapon first, laying it on the dash t o cr eate a n app rehe nsion that she
woul d use deadly fo rce if necessary, but Appellan t resp onded by not just displaying
his weapon but by pulling it out and acting lik e he was going to st ab her ; this behavior

amounts to deadly force and therefore comes withi n Se ction 9.32

. A nd Appellant ’ s testi mony fail ed to trigger any self

- defense instr uctio n , much
less one under S e ction 9. 04 b ecause , as summarized by the State, “ Ap pellant denied pullin g out the knife at all, denied any threat of deadly fo rce, and denied any action [tha t ] c ould have place d [ Par mes] in ‘ appr ehen sion that he [would] use de adly force

. ’ ” Appellan t does not point to any evidence demonstrat in g that he displayed the knife solely to create an apprehension that he would use deadly force if necessa ry a nd thu s has failed to demonstrate that he met the r equirements of Sect ion 9.04 to entitle him
to a nond ea dly force self

- defense instruction under Section 9.31. Cf. Sanchez v. State , No. 09

- 18

- 00163

- CR, 2020 WL 1696012, at *5

– 6 (Tex. App.

— Be aumont Apr. 8, 2020, pet. ref ’ d) (mem. op., not d esignated for publication) (hol ding that there was no
evidence to ju stify a Section 9.31 instruction because th ere was no evidence that

10 T o the extent t hat Appellant testified th at he felt in danger because Par mes was big ger t han him, case law holds that a victim ’ s large phy sical stature does not compe l a finding that the defendant re asonably believed that deadly fo rce was i mmediately necess ary to protect hi mself from the victim. S ee Harris v. State , 668 S.W.3d 83, 90 (Tex. A p p.

— Housto n [1 st D is t.] 2022, p et. ref ’ d) (en banc op. on reh ’ g)

. Additionally, to the extent that A ppe llant possibly interpreted Parmes ’ s initial comm ents

— to go on and to get away from her

— as a threat, ve rb al prov ocation alone i s insufficient to justi fy self

- def ense . See Tex. Penal Cod e Ann. § 9.31(b) ( 1)

.21 appellant used nondeadly force in response to any unlawful for ce of th e victim an d
be cause appellant ’ s knife was indisp utably capable of causing serio us bo dily i njury or
dea th and because the mann er in which he used the knife constituted t he use of deadly force); Smith v. State , No. 04

- 95

- 00337

- CR, 1997 WL 94151, at * 2 (Tex. App.

— Sa n An tonio M ar. 5, 199 7, pet. ref ’ d) (not designat ed for publication) ( holding th at

tr ial court proper ly denied request ed Section 9.04 instruction because the rec ord did not reflect that app ellant ’ s purpose in brandishing his weapon and pointing it at the

v

icti m was l imit ed to creating an apprehen s ion tha t he would use deadly force if

neces sary or that his threat was in an y way conditional)

. Accordingly, we hold th at the trial court did not abuse its discreti on in the aggravated

- assault case by instructing t he j ury on self

- defen se unde r Section 9.32

. We

o verrule th e remainder o f Appell ant ’ s first issue

. I V. The Lesser

- I ncluded

- Offense Inst ruction
In his seco nd issue , Appellant argues that the trial court erred by failing to give the jury the option to find him guilty of assaul t as a lesser

- included off ense of aggravated robbery. Appe ll ant did not reques t this lesser

- includ ed instru cti on at trial. Appellant, however, implicitly contends that because t h e trial co urt gave a self

- defense
instruction in the aggrav ated

- robbery case de spi te that se lf

- def ense i s not a jus tification to that offense, the tri al court should ha ve s u a sponte instructed the jury
on the lesser

- included offense of assault. Case law , however, does not supp ort Appe llant ’ s argument.22 If neither side re quests a l esser

- i ncluded instruct ion, the trial court need no t

su bmi t one su a spont e . See Delgado v. State , 235 S.W.3d 244, 250 (Tex. Crim. App. 2007); see also Tolbert v

. S tate , 306 S.W. 3d 776, 781 (Tex. Crim. App. 201 0). Moreover,
if the defense did no t request a lesse r

- included instr uction, its omission is not erro r

t hat the appella nt can successfully claim on appeal. See Delgado , 235 S.W.3d at 250; see also Tolbert , 30 6 S.W.3d at 780

. Because Appellant did not requ est a lesser

- included instruc tion on assault i n his aggravated

- robber y case, we hold that the trial c our t had no duty to sua sponte submit one. Accordingly, we overrule Appellant ’ s second point. 11
V. Conclusi o n Having o verr uled Appellant ’ s first and secon d issues , which are dispositi ve o f

t h ese appea ls, we affirm the trial court ’ s ju dgment s. /s/ Dabney Bassel Dabney Ba s sel Justice
Do Not Publish Tex. R. App. P. 47.2 (b)
Delivered : July 11, 2024

11 Because we rule against Appe llant on hi s secon d issue , we need not address his third issue i n whi ch he argues that the trial court caused him egregious harm by failing to char ge the jury on self

- def ense for th e lesser

- included offense of as sa ult

. See Tex. R. App. P. 47.1.