In the

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-23-00140-CR

ERIC MONTGOMERY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 102nd District Court

Bowie County, Texas

Trial Court No. 22-F0178-005

Before Stevens, C.J., van Cleef and Rambin, JJ.

Memorandum Opinion by Justice van Cleef
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MEMORANDUM OPINION

A Bowie County jury convicted Eric Montgomery of aggravated assault with a deadly 

weapon and possession of a deadly weapon in a penal institution. See TEX. PENAL CODE ANN.

§ 22.02 (Supp.), § 46.10.1 On appeal, Montgomery argues that the evidence is insufficient to 

support the jury’s rejection of his self-defense claim. Because we disagree, we affirm the trial 

court’s judgment.

I. The Law of Self-Defense

“[A] person is justified in using force against another when and to the degree the actor

reasonably believes the force is immediately necessary to protect the actor against the other’s use 

or attempted use of unlawful force.” Williamson v. State, 589 S.W.3d 292, 296 (Tex. App.—

Texarkana 2019, pet. ref’d) (alteration in original) (quoting TEX. PENAL CODE ANN. § 9.31(a)). 

Use of deadly force is only “justified if use of force would be justified under Section 9.31, and 

‘when and to the degree the actor reasonably believes the deadly force is immediately 

necessary . . . to protect the actor against the other’s use or attempted use of unlawful deadly 

force.’” Id. (quoting TEX. PENAL CODE ANN. § 9.32(a)(2)(A)). The Texas Penal Code defines

“[r]easonable belief” as “a belief that would be held by an ordinary and prudent man in the same 

circumstances as the actor.” Id. (quoting TEX. PENAL CODE ANN. § 1.07(a)(42)).

“Under certain circumstances, the actor’s belief that deadly force was immediately 

necessary is presumed to be reasonable.” Id. at 296–97. Some of these circumstances include 

when (1) the actor “knew or had reason to believe that the person against whom the deadly force 

1The jury assessed a sentence of ten years’ imprisonment for the aggravated assault and five years’ imprisonment for 

possession of a deadly weapon, with the sentences to run concurrently.
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was used” “was committing or attempting to commit” murder or sexual assault, (2) the actor “did 

not provoke the person against whom the force was used,” and (3) the actor “was not . . . 

engaged in criminal activity, other than a Class C misdemeanor” or a traffic violation. TEX.

PENAL CODE ANN. § 9.32(b).

II. The Evidence at Trial 

The evidence at trial showed that Darrius Nichols and Montgomery were cellmates at the 

Telford Unit. Nichols testified that he decided to clean out his cell locker and placed his 

belongings, including a homemade knife, into a bag. Before discarding the bag, Nichols handed 

it to Montgomery in case he wanted to keep anything for himself. According to Nichols,

Montgomery retrieved the knife and stabbed him in the chest. Nichols testified that he and 

Montgomery started fighting and that he was “stabbed a couple more times in the process of 

trying to get the knife out of [Montgomery’s] hand.” Nichols also said that he was not able to 

get the knife from Montgomery.

Festus Ofeinmen, a correctional officer for the Texas Department of Criminal Justice, 

responded to the commotion caused by the fight. Ofeinmen testified that Montgomery and 

Nichols admitted that they were fighting. Ofeinmen and William Buttram, an investigator for the 

Office of the Inspector General, both testified that Montgomery surrendered the knife to 

correctional officers. Buttram said that the knife was capable of causing death or serious bodily 

injury. 

Buttram visited Nichols in the infirmary and photographed his multiple stab wounds,

which were shown to the jury. Nichols was stabbed in the chest, head, neck, shoulder, arms
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abdomen, and back. According to Buttram, the two wounds to Nichols’s back indicated that he 

was trying to get away from Montgomery. Buttram also visited Montgomery in the infirmary, 

but both Buttram and Nichols testified that Montgomery had no injuries. Nichols, who had 

testified that he and Montgomery had no major issues before the incident, opined that the attack 

happened because Montgomery “was on drugs . . . [that] had him tripping.” Nichols testified

that he had no weapon and did not try to assault Montgomery.

Buttram testified that he saw nothing that indicated Montgomery acted in self-defense. 

Even so, to support his claim of self-defense, Montgomery testified to the following:

[Nichols] brought the weapon into the cell, he told me he was gonna get rid of the 

knife. He made an attempt to get rid of the knife. He turned around and told me 

that he got rid of the weapon and when I looked up[,] he was walking behind me 

with a knife. And I took the knife away from him and that’s the incident . . . .

Montgomery testified that he had no issues with Nichols before the incident but explained that he 

felt threatened after he saw Nichols with the knife, which Nichols claimed he had thrown away. 

Montgomery said that Nichols was much larger in stature and that, as a result, he kept stabbing

Nichols because he feared what would happen if Nichols regained control of the knife. 

Montgomery admitted that he turned the knife over to responding officers.

III. Standard of Review

“In evaluating legal sufficiency, we review all the evidence in the light most favorable to 

the trial court’s judgment to determine whether any rational jury could have found the essential 

elements of the offense beyond a reasonable doubt.” Williamson, 589 S.W.3d at 297 (citing

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. 

Virginia, 443 U.S. 307, 319 (1979))). “Our rigorous [legal sufficiency] review focuses on the 
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quality of the evidence presented.” Id. (citing Brooks, 323 S.W.3d at 917–18 (Cochran, J., 

concurring)). “We examine legal sufficiency under the direction of the Brooks opinion, while 

giving deference to the responsibility of the jury ‘to fairly resolve conflicts in testimony, to 

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’” Id. 

(quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 

318–19)); see Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). 

“In drawing reasonable inferences, the jury ‘may use common sense and apply common 

knowledge, observation, and experience gained in the ordinary affairs of life.’” Id. (quoting 

Duren v. State, 87 S.W.3d 719, 724 (Tex. App.—Texarkana 2002, pet. struck) (citing Manrique 

v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) (Meyers, J., concurring))). “The jury is 

also the sole judge of the credibility of the witnesses and the weight to be given their testimony

and may ‘believe all of [the] witnesses’ testimony, portions of it, or none of it.’” Id. (quoting

Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. App. 2014) (alteration in original)). “We give 

‘almost complete deference to a jury’s decision when that decision is based upon an evaluation 

of credibility.’” Id. (quoting Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008)).

“It is not required that each fact ‘point directly and independently to the guilt of the 

appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to 

support the conviction.’” Id. (quoting Hooper, 214 S.W.3d at 13). “Circumstantial evidence and 

direct evidence are equally probative in establishing the guilt of a defendant, and guilt can be 

established by circumstantial evidence alone.” Id. (citing Ramsey v. State, 473 S.W.3d 805, 809 

(Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13). 
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“Legal sufficiency of the evidence is measured by the elements of the offense as defined 

by a hypothetically correct jury charge.” Id. at 298 (citing Malik v. State, 953 S.W.2d 234, 240 

(Tex. Crim. App. 1997)). The “hypothetically correct” jury charge is “one that accurately sets 

out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of 

proof or unnecessarily restrict the State’s theories of liability, and adequately describes the 

particular offense for which the defendant was tried.” Id. (quoting Malik, 953 S.W.2d at 240). 

“In evaluating a claim of insufficient evidence in the context of a self-defense issue, we 

apply the general sufficiency review principles set forth above, in conjunction with sufficiency 

review principles specific to self-defense.” Id. (citing Braughton v. State, 569 S.W.3d 592, 609 

(Tex. Crim. App. 2018)). “When there is a claim of self-defense . . . to justify use of force or 

deadly force against another, ‘the defendant bears the burden to produce evidence supporting the 

defense, while the State bears the burden of persuasion to disprove the raised issues.’” Id.

(quoting Braughton, 569 S.W.3d at 608 (citing Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. 

App. 2003))). “The defendant is required to produce ‘some evidence that would support a 

rational finding in his favor on the defensive issue.’” Id. (quoting Braughton, 569 S.W.3d at

608). “The State is not required to produce evidence; rather, its burden of persuasion only 

requires ‘that the State prove its case beyond a reasonable doubt.’” Id. (quoting Braughton, 569 

S.W.3d at 608). As a result,

[i]n resolving the sufficiency of the evidence issue, we look not to whether the 

State presented evidence which refuted appellant’s self-defense testimony, but 

rather we determine whether after viewing all the evidence in the light most 

favorable to the prosecution, any rational trier of fact would have found the

essential elements of [the offense] beyond a reasonable doubt and also would 

have found against appellant on the self-defense issue beyond a reasonable doubt.
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Id. (alterations in original) (quoting Braughton, 569 S.W.3d at 609). “Further, as with the 

general sufficiency principles, the trier of fact is the sole judge of the credibility of defensive 

evidence, and it is free to accept it or reject it.” Id. (citing Braughton, 569 S.W.3d at 609).

“Self-defense is a fact issue that is determined by the jury, and ‘[a] jury verdict of guilty is an 

implicit finding rejecting the defendant’s self-defense theory.’” Id. (alteration in original) 

(quoting Braughton, 569 S.W.3d at 609).

IV. Analysis

Under the indictment for aggravated assault, the State was required to prove that 

Montgomery, while using or exhibiting a deadly weapon, “intentionally, knowingly, [or]

recklessly cause[d] bodily injury to DARRIUS NICHOLS by striking [him] about the body with 

sharpened metal.” See TEX. PENAL CODE ANN. § 22.02. Under the indictment for deadly 

weapon in a penal institution, the State had to prove that, while confined in the Telford Unit,

Montgomery intentionally or knowingly possessed sharpened metal that was capable of causing

death or serious bodily injury in the manner of its use or intended use. See TEX. PENAL CODE 

ANN. § 1.07(a)(17) (Supp.), § 46.10.

Here, Buttram testified that the knife was capable of causing serious bodily injury or 

death. Nichols described the attack in detail, and Montgomery admitted that he used the knife to 

stab Nichols multiple times while housed in the Telford Unit. This evidence alone was sufficient 

to establish the elements of aggravated assault and deadly weapon in a penal institution. Even 

so, Montgomery argues that the jury’s rejection of his claim of self-defense was not supported by 

the record. We disagree. 
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The jury heard two version of events. One from Nichols and another from Montgomery. 

As the triers of fact, the jury was free to reject Montgomery’s self-serving version in favor of 

Nichols’s testimony that he had no weapon when he was attacked by Montgomery, who 

appeared to be on drugs. The rejection of Montgomery’s self-defense claim was supported by 

Buttram’s testimony that Montgomery suffered no injuries due to the melee and that Buttram’s

investigation revealed no signs of self-defense. 

Moreover, even presuming that Montgomery’s initial use of deadly force was reasonable,

the use of deadly force was justified “to the degree [Montgomery] reasonably believe[d] the 

deadly force [was] immediately necessary” to protect himself from Nichols’s use or attempted 

use of unlawful deadly force. TEX. PENAL CODE ANN. § 9.32(a)(2) (emphasis added). The jury 

was free to determine that, after Nichols was initially stabbed and without any weapon, Nichols 

no longer posed any deadly threat to Montgomery, who continued to stab Nichols. “Self-defense 

implies defensive and not offensive acts. When the acts of an accused cease to be defensive and 

take on the offensive, then he becomes the aggressor and is no longer acting in self-defense.” 

Witty v. State, 203 S.W.2d 212, 218 (Tex. Crim. App. 1947); see Gibson v. State, 202 S.W.2d 

236, 237 (Tex. Crim. App. 1947) (The acts constituting self-defense “must not exceed the 

bounds of defense and prevention. There must be an apparent necessity to ward off by force an 

unlawful act. It is a right based upon necessity.”); see also Lozano v. State, 636 S.W.3d 25, 34

(Tex. Crim. App. 2021) (noting that defendant “might have shot [victim] once in self-defense, 

then continued shooting even though he knew [the victim] was no longer a threat”). Because of 
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Nichols’s multiple wounds, including two wounds to the back, the jury was free to find that 

Montgomery became the aggressor. 

In sum, we conclude that the jury’s rejection of Montgomery’s self-defense claim was 

supported by the evidence. As a result, we overrule Montgomery’s sole point of error. 

IV. Conclusion 

We affirm the trial court’s judgment. 

Charles van Cleef

Justice

Date Submitted: December 7, 2023

Date Decided: January 10, 2024

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