NO. 03-14-00579-CR

TO THE
THIRD COURT

OF APPEALS

PERRY LEE PENNING, Appellant
VS. THE STATE OF TEXAS, Appellee

Appeal in Cause No. 2012-209292 County Court at Law #7

Travis County, Texas

BRIEF FOR APPELLANT

CONNIE J . KELLEY 1108 Lavaca #110-221 Austin, Texas 78701 (512) 445- 4504 (512) 478- 2318 (fax) warrentucker@grandecom.net State Bar Number 1 1199600 Attorney for Appellant ACCEPTED 03-14-00579-CR 3973430 THIRD COURT OF APPEALS

AUSTIN, TEXAS 1/30/2015 4:49:27 PM JEFFREY D. KYLE

CLERKi IDENTITY OF PARTIES AND COUNSEL PURSUANT TO Rule 38.1(a), TEXAS RULES OF APPELLATE PROCEDURE Party and Appellee’s C ounsel: State of Texas Travis County Attorney 314 W. 11 th St., Ste. 300 Austin, TX 78701 State’s Trial Attorney: Laura Gorman Travis County Attorney’s Office 314 W. 11 th St., Ste. 300 Austin, TX 78701 Party/Defendant: Perry Penning K illeen, Texas Defendant’s Trial Attorney: Bart Denum P .O. Box 5995 Austin, TX 78763 Appellant’s Attorney : Connie J. Kelley Attorney at Law 1108 Lavaca #110-221 Austin, Texas 78701 The Honorable Elizabeth E arle presided at trial.ii TABLE OF CONTENTS Page Identity of Partie s and Counsel ............................... .................................................... i Index of Au thorities .......................................... ........................................................ iv
Statement of Case ............................................. ........................................................... i Statement Regarding Oral Argument ............................. ............................................ i Points of Erro r Presented ..................................... .................................................. 1-2
POINT OF ERROR NO. ONE
THE TRIAL COURT ERRED I N REFUSING TO INCLUDE AN
INSTRUCTION ON THE NECE SSITY DEFENSE UNDER PENAL CODE §9.22 IN THE JURY CHAR GE. (R.R. VOL. 6 AT 197 & C.R. AT 80-84).
POINT OF ERROR NO. TWO
THE TRIAL COURT ERRED I N REFUSING TO INCUDE AN
INSTRUCTION ON SELF-DEF ENSE UNDER PENAL CODE §9.31 IN THE JURY CHARGE. (R. R. VOL. 6 AT 195-196 & C.R. AT 80-84).
Statement of Facts ............................................ ...................................................... 2-4 Summary of Argument............................................ ............................................... 4-5 Argument....................................................... ....................................................... 5-35iii TABLE OF CONTENTS (cont.) Page Prayer ........................................................

............................................................... 35 Certificate of Service ........................................ ....................................................... 35 Certificate of C ompliance ..................................... ................................................... 36iv Index of Authorities Page Cases: Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) ....... .......... 20, 25, 30, 35 Alonzo v. State, 353 S.W.3d 778 (Tex. Crim. App. 2011)......... ............................. 27 Arline v. State, 721 S.W.2d 248 (Tex. Crim. App. 1986) ........ ......................... 20, 30 Barron v. State, 353 S.W.3d 879 (Tex. Crim. App. 2011) ........ ........................ 23, 33 Boget v. State, 74 S.W.3d 23 (Tex. Crim. App. 2002) ........... ..................... 26, 27, 29 Bowen v. State, 162 S.W.3d 226 (Tex. Crim. App. 2005) ......... ........... 13, 19, 21, 30 Bowen v. State, 187 S.W.3d 744 (T ex. App. –Ft. Worth 2006) .... .................... 21, 30 Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1990)......... ................... 9, 12, 27 Brazelton v. State, 947 S.W.2d 644 (Tex. App. –Ft. Worth 1997) ................... 17, 18 Bufkin v. State, 207 S.W.3d 779 (Tex. Crim. App. 2006) ........ .............................. 14 Cornet v. State, 359 S.W.3d 217 (Tex. Crim. App. 2012) ... 6,7, 9,10,11,12,13,23,33 Cornet v. State, 417 S.W.3d 446 (Tex. Crim. App. 2013) ........ ............ 20, 24, 30, 34 Fitzgerald v. State, 782 S.W. 2d 876 (Tex. Crim. App. 1990) .... ............................. 17 Granger v. State, 3 S.W.3d 36 (Tex. Crim. App. 1999) .......... ................................ 13 Guilbeau v. State, 193 S.W.3d 156 (Tex. App. –Houston [1 st Dist] 2006) ............. 35 Hamel v. State, 916 S.W.2d 491 (Tex. Crim. App. 1996) ......... ........................ 14, 25 Hatch v. State, 958 S.W.2d 813 (Tex. Crim. App. 1997) ......... ............................... 11v Index of Authorities Page Johnson v. State, 271 S.W.3d 359 (Tex. App. –Beaumont 2008) ... ............ 31, 34-35 Juarez v. State, 308 S.W.3d 398 (Tex. Crim. App. 2010) ........ ............................. 6, 7 Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1996) .......... ............................... 11 Miller v. State, 815 S.W.2d 582 (Tex. Crim. App. 1991) ........ ................... 13, 21, 31 Pennington v. State, 54 S.W.3d 852 (Tex. App. –Ft. Worth 2001) ......................... 18 Rodriguez v. State, 544 S.W. 2d 382 (Tex. Crim. App. 1976) ..... ............................ 29 Shaw v. State, 243 S.W.3d 647 (Tex. Crim. App. 2007) .......... .............................. 14 Stefanoff v. State, 78 S.W.3d 496 (Tex. App. –Austin 2002) .... ....................... 17, 18 Valentine v. State, 587 S.W. 3d 399 (Tex. Crim. App. 1979) ..... ............................. 26 VanBrackle v. State, 179 S.W.3d 708 (Tex. App. –Austin 2005) .. ......... 6, 14, 29, 31 Vasquez v. State, 830 S.W.2d 948 (Tex. Crim. App. 1992) ....... ........... 21, 25, 30-31 Vernon v. State, 841 S.W.2d 407 (Tex. Crim. App. 1992) ........ ....................... 23, 33 Villa v. State, 370 S. W.3d 787 (Tex. App. –Eastland 2012) ..... ................................ 7 Villa v. State, 417 S.W.3d 455 (Tex. Crim. App. 2013) ......... ................................ 12 Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007) ....... .............................. 26 Statutes and Rules: Penal Code § 1.07 .................................................... .................................................... 6, 7, 9, 1 7 § 2.03 .................................................... .......................................................... 22, 31 § 9.02 ....................................................

............................................................... ... 6 § 9.22 .................................................... ...................................................... 6, 16, 1 7vi Index of Authorities Page § 9.31 .................................................... ....................................6, 25, 26, 27, 28, 29 § 22.05 ...................................................

............................................................... 19 § 42.01 ................................................... ...................................9, 11, 12, 19, 22, 32 § 46.035 ..................................................

.............................................................. 11 Code of Criminal Pro cedure, Art. 36.14 ........................ .................................... 20, 29 Other Authorities: Dix & Schmolesky, 43 Tex. Prac. Series: Criminal Practice and Procedure (3d ed. 2011) ................. .. 13-14, 16, 17, 19, 22, 32 Other References: American Heritage Dictionary of the English Language (3d ed. 19 92) .................. 10 Black’s Law Dictionary (6 th ed. 1991)(abridged) .......................................... ...... 8, 10 Black’s Law Dictionary (7 th ed. 2000)(abridged) .......................................... .......... 28 Webster’s II New College Dictionary (1999) .................... ...................................... 10 Webster’s Third International Di ctionary of the English Languag e (1961)(unabri dged edition) .................................... .................................................... 81 STATEMENT OF THE CASE Appellant, Perry Penning, after a plea of not guilty, was foun d guilty by a jury of Disorderly Conduct under Penal Code, §42.01(a)(8) on Ma y 15, 2014 in Travis County Court #7 (C.R. at 7 & 92). On May 22, 2014, the court sentenced him to serve 180 days in jail a nd a $2,000 fine, probated for 2 years. (C.R. at 93- 94). Notice of Appeal was filed by the undersigned attorney Co nnie Kelley on June 20, 2014. (C.R. at 99). No motion for new trial was file d.
STATEMENT REGARDING ORAL ARGUMENT Appellant believes that the issu es raised herein can be adequa tely addressed in the briefs of the parties.
POINTS OF ERROR
POINT OF ERROR NO. ONE
THE TRIAL COURT ERRED I N REFUSING TO INCLUDE AN
INSTRUCTION ON THE NECE SSITY DEFENSE UNDER PENAL CODE §9.22 IN THE JURY CHAR GE. (R.R. VOL. 6 AT 197 & C.R. AT 80-84).
POINT OF ERROR NO. TWO
THE TRIAL COURT ERRED I N REFUSING TO INCUDE AN
INSTRUCTION ON SELF-DEF ENSE UNDER PENAL CODE2 §9.31 IN THE JURY CHARGE. (R. R. VOL. 6 AT 195-196 & C.R. AT 80-84).
STATEMENT OF FACTS This case involves a roadway encounter between Appellant and Complainant, Jerold Hill, age 22, on Highway 183 in Austin, Tex as. (R.R. Vol. 5 at 24 & 26-27). Complainant dr ove a Buick LaSabre and Appellan t a Volkswagen. (R.R. Vol. 5 at 27 & Vol. 6 at 120). It was late afternoon and traffic was “tight.” (R.R. Vol. 5 at 83). Complainant had originally been in a lane that was ending, and his lane of traffi c was supposed to merge into the lane to the left. (R.R. Vol. 5 at 50-52 & 73-74). Rather than w aiting to merge, Complainant d rove ahead on the right shoulder of the road. (R. R. Vol. 5 at 74 & 82-83 & Vol. 6 at 119). Appellant testified that when he saw Compla inant “charging up” in his rea rview mirror, Complainant was completely off the road, driving in the grass. (R.R. Vol. 6 at 117). As Complainant approached a guardrail before the Montopo lis bridge, he “forced himself over”, taking a bout one-third of Appellant’s la ne. (R.R. Vol. 5 at 74 & Vol. 6 at 118, 125-127). Whe n this occurred, Appellant he ard something hit his car. (R.R. Vol. 6 at 120). He testified he thought there had been an accident, and stopped where they were with the intention of checking the car for any damage3 that could impact his ability to drive across the upcoming brid ge. 1 (R.R.Vol. 6 at 120-121 & 123 & 129). If there was damage, he wanted to get Co mplainant’s insurance information and take p ictures. (R.R. Vol. 6 at 125). Witness accounts differ greatly about what occurred next. Complainant testified that aft er Appellant got out they cursed at one another, and that when he reached for his cell phone Appe llant pulled ou t a gun. (R.R. Vol. 5 at 27-28). He stated that when he stopped reaching for the p hone Appellant put the gun back in its holster. ( R.R. Vol. 5 at 27-28). A witnes s from another car testified she saw Appellant lif t his shirt and put his hand ove r a gun, but that he did not take the gun out of its holst er. (R.R. Vol. 5 at 80-81). Appellant testified that after a nother car slowed to let him o ut he had walked around the back of his car, glanced briefly at the right side, and seeing nothing major, intended to leave. (R .R. Vol. 6 at 124-125 & 129). He denied yelling at Complainant, who he claimed was screaming at him. (R.R. Vol. 6 at 128). Appellant testified that the only thing he ever said to Complai nant was “If you hit my car, you ain’t leaving.” ( R.R. Vol. 6 at 128). Appellant s tated that when he was about to return to his car a fter seeing that his tire was u p and everything looked okay, Complainant “backed up very violently” and then ca me “flying

1 Appellant stated it was illegal to drive onto a bridge with a c ar that might not make it across. (R.R. Vol. 6 at 120). He wanted to safeguard the commercial dr iver’s license he had, and was concerned he could get a ticket if he got a flat on the bridge. (R.R. Vol. 6 at 120 & 122-123).4 forward,” driving directly at hi m, refusing to stop when he mot ioned for him to do so. (R.R. Vol. 6 at 129 & 130- 132). Appellant testified that he feared Complainant was going to run him over and possibly hit his car and injure his wife who was inside. (R.R. Vol. 6 at 131-132). He recounted that he tightened his shirt, but did not raise it, a nd put his hand over his weapon. 2 (R.R. Vol. 6 at 132 & 135). When Complainant realized Appellant had a gun, he put on his brakes. (R.R. Vol. 6 at 138). Appellant tes tified that he took his han d off the gun and watched Complainant while backi ng up to get in his car. (R.R. Vol. 6 at 142). There was also conflicting tes timony about events that arose a fter the parties left the scene, but it is the a bove-described events that forme d the basis of the charge against Appellant, who was arrested and eventually charg ed with Disorderly Conduct under P.C. §42.01(a)(8).
SUMMARY OF ARGUMENT The trial court erred in denyi ng Appellant’s request that the jury be instructed on the Necessity defen se under P.C. 9. 22. The defen se was raised by the evidence and Appellant satisfied the Confession and Avoidance D octrine. Appellant suffered “some harm” from the court’s error. The trial court also erred in d enying Appellant’s request that the jury be instructed on Self-defense unde r P.C. §9.31. The defense was r aised by the

2 It was not contested a t trial that Appellant was licensed to ca rry a handgun.5 evidence and Appellant satisfied the Confession and Avoidance D octrine. Appellant suffered “some harm” from the court’s error.
ARGUMENT AND AUTHORITIES
POINT OF ERROR NO. ONE
THE TRIAL COURT ERRED I N REFUSING TO INCLUDE AN
INSTRUCTION ON THE NECE SSITY DEFENSE UNDER PENAL CODE §9.22 IN THE JURY CHAR GE. (R.R. VOL. 6 AT 197 & C.R. AT 80-84).
POINT OF ERROR NO. TWO
THE TRIAL COURT ERRED I N REFUSING TO INCUDE AN
INSTRUCTION ON SELF-DEF ENSE UNDER PENAL CODE §9.31 IN THE JURY CHARGE. (R. R. VOL. 6 AT 195-196 & C.R. AT 80-84).
I.
There is certain law and testimony applicable to both Points of Error
as follows:
A.
Confession and Avoidance Doctrine6 It is a defense to prosecution that the conduct 3 in question is justified under Chapter Nine of the Penal Code . P.C. §9.02. To be entitled to assert certain defenses, such as Necessity and Self-defense, the accused must admit to conduct that would violate the statute u nder which he is charged, and t hen claim the defense to justify his otherwis e criminal conduct. Juarez v. S tate, 308 S.W.3d 398, 399 (Tex. Crim. App. 2010) and Va nBrackle v. State, 179 S.W.3d 708, 715 (Tex. App. –Austin 2005). See P.C. §§9.22 & 9.31. This is referred to as the Confession and Avoidance Doctrine. Juarez v. State, 308 S.W.3d at 399. T o satisfy the requirement that the defendant admit to conduct under the doctr ine, it is sufficient that the defendant point to defe nsive evidence, originating in his own statements, such that a trier of fact could reasonably infer that each elem ent of the offense has been satisfied. Cornet v. Sta te, 359 S.W.3d 217, 226 (Tex. Cri m. App. 2012). If the accused wholly and consis tently denies the offense by, for example, claiming alibi, he has not conf essed to any conduct that needs justifying and a statutory justification defense will be unavailable. VanBrackl e v. State, 179 S.W.3d at 715. However, where t he testimony of the accused is inconsistent or contradictory, the doctrine will be satisfied so long as he giv es some testimony confessing to conduct that shows commission of all elements of the charged crime. Id. (self-defense) and Juarez v. State, 308 S.W.3d at 405. (nec essity defense). See

3 “Conduct” means an act or omission and its accompanying mental state. P.C. §1.07(a)(10).7 also Villa v. State, 370 S.W.3d 787 , 795 (Tex. App. –Eastland 2 012) (medical care defense). Likewise, wh ere a necessary element of the offense c an be reasonably inferred from the defendant’s t estimony, he will not be denied a defensive instruction. See Juarez v. Sta te, 308 S.W.3d at 406 and Cornet v. State, 359 S.W.3d at 226-227 (Tex. Crim. A pp. 2012). Finally, where a def endant denies committing an element of the char ged crime, but testifies to co nduct that could be construed as commission of the e lement in the legal sense, he h as “essentially admitted” to it under the Doctrine of Confession and Avoidance. Cornet v. State, 359 S.W.3d at 226-228 (defendant d enied element of penetration in aggravated sexual assault case, but admitted to conduct that could satisfy legal definition of penetration).
B. Appellant Satisfied the Confession
And Avoidance Doctrine A person commits the offense of Disorderly Conduct under P.C. §42.01 if he intentionally or knowingly disp lays a firearm or other deadly w eapon in a public place in a manner calculated t o alarm. P.C. §42.01(a)(8). Appellant’s testimony reflected t hat he acted knowingly or int entionally. (R.R. Vol. 6 at 135 & 141). He t estified to being on a public roadway, which is a “public place” under Pe nal Code §1.07(a)(40). (R.R. Vol. 6 at 1 18-120) He8 admitted that his conduct involve d a firearm. (R.R. Vol. 6 at 132-133). Appellant testified to facts showing he act ed in a manner calculated to a larm. Though the Penal Code contains no definiti ons of “manner,” “calculated”, o r “alarm”, Black’s Law Dictionary defines “manner” , in part, as a way, mode, or me thod of doing anything. Black’s Law Dictionary – Abridged (6 th ed. 1991). It gives definitions of “calculated” that include cont rivance to accomplish a purpos e or likely to produce a certain effect. Id. Webster’s dictionary defines “a larm” in part, as a signal giving notice of danger, a nd as fear resulting from a su dden sense of danger. Webster’s Third International Di ctionary of the English Languag e at p. 38 (1961) (unabridged edition). According to Appellant, during his encou nter with Complainant, he tightened his s hirt, put his hand over his weap on and got in a position where he could quickly remove the weapon from its hols ter, in order to show the complainant he could defend himself. (R.R. Vol. 6 at 132, 135-137 & 141). A jury could infer from this testimony that Appellant ac ted in a manner calculated to alarm. Appellant denied during his test imony that he displayed his we apon. (R.R. Vol. 6 at 141). He equated the le gal requirement of display wi th openly showing it to others or taking it out of its holster. (See R.R. Vol. 6 at 141). At one point he testified that “About all you c ould – if you want to call it di splay... it’s less than9 half inch of barrel and maybe a piece of holster, so that would be display. It don’t even meet the criteria of display in the law.” (R.R. Vol. 6 at 141). The Court of Criminal Appeals ha s held that in interpreting a statute courts focus on its literal text. Boyki n v. State, 818 S.W.2d 782, 78 5 (Tex. Crim. App. 1991) and Cornet v. State, 359 S.W.3d 217, 221 (Tex. Crim. App. 2012). If the text has a nonambiguous meaning on its face, courts will adopt the statute’s plain meaning unless such an interpreta tion would lead to “absurd con sequences that the Legislature could not possibly have intended.” Boykin v. State , 818 S.W.2d at 785 (emphasis in original). The mea ning of the word “displays” is not plain on the face of P.C.§42.01(a)(8). Unlike many ot her elements of the offense , the Legislature chose not to give it a statutor y definition. See P.C. §§1.07(a )(17), (38) & (40) and 6.03(a) & (b) and 46.01(3). The t rial court, like Appellant, i nterpreted the element of display in P.C. §42.01(a)(8) as requiring a gun to be pulled from its holster. (R.R. Vol. 6 at 196 & 198). The c ourt denied Appellant’s reque sts for defensive instructions in the charge, fi nding he had not admitted to the element of display based on his testimony that he never removed his weapon from it s holster. (R.R. Vol. 6 at 195-198). When there is an ambiguity or ab surdity in the language of a s tatute courts may consult extra-textual sources in determining legislative in tent. Cornet v. State, 359 S.W.3d at 221. Courts resort to these sources only insofar as they do not “add10 or subtract from [the] statute. ” Id., citing Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). The opini on in Cornet pointed out that the Court often turned to dictionaries as an aid in discerning what the Legisla ture intended in adopting particular language. C ornet v. State, 359 S.W.3d at 2 21-222. In consulting dictionaries, courts look to the alternative definit ions the Legislature most likely had in mind, takin g into account the context of the word, subsection of the statute, and overall statutor y scheme in which the word app ears. Id. at 222. Webster’s dictionary defines the verb “display”, in part, as t o exhibit to the sight or mind, and to give evidence of. 4 Webster’s Third International Dictionary of the English Language (1961)(una bridged). Among the definiti ons of “display” given in the American Heritage Di ctionary of the English Langua ge are: to give evidence of; manifest; to expre ss by gestures or bodily posture . American Heritage Dictionary of the English La nguage. (3d ed. 1992). Black’s Law Dictionary defines “display”, in part, as an opening or unfolding, exhibit ion or manifestation. 5 Black’s Law Dictionary (6 th ed. 1991)(abridged ed.). Webster’s has defined “manifestation”, in part, as a de monstration of the existence o r presence of an object. Webster’s II New College Dictionary (1999). A person could, therefore, display a handgun by manifesting or giving evidence of its pres ence through gestures or bodily posture even if the gun is not in plain sigh t. If the Legislature

4 Emphasis mine. 5 Emphasis mine.11 had meant to limit the term “disp lays” in §42.01(a)(8) to an op en exhibition, it could have easily said so. See Cornet, 359 S.W.3d at 222. As Cornet put it, “when the Legislature desires to convey a certain level of specificit y within a statutory provision, it knows how to do it. ” Id., citing Long v. State, 931 S.W.2d 285, 290 (Tex. Crim. App. 1996) (“[Had] t he legislature intended to appl y a reasonable person standard, they easily could have specified one, or a cle ar synonym.”) and Hatch v. State, 958 S.W.2d 813, 816 (Tex. Crim. App. 1997)(“cha pter 62 of the Government Code shows that the L egislature knew how to restrict statutes to civil cases. For example, the very nex t section of the Texas Governm ent Code, Section 62.202, is restricted t o ‘a civil case.’”). In 2013, the Legislature did e xplicitly restrict the meaning o f the element “displays” in Penal Code, §46.035 , which deals with offenses by persons licensed to carry handguns. P.C. §46.035( a). Subsection (a) was amende d to read, “A license holder commits an offens e if the license holder carries a handgun on or about the license holder’s pers on under the authority of Subcha pter H, Chapter 411, Government Code, and inten tionally displays the handgun in plain view of another person in a public place .” In 2013, the Legislature al so made amendments to P.C. §42.01, but the language in (a)(8) remained the same. It did not restrict the element of “displays” to those in plain view of another person, as it did in §46.035. This shows a collective intent on the part of the legislators w ho amended the12 statutes that the term “displays ” in §42.01(a)(8) be interprete d broadly to better protect the public peace and tr anquility. See Boykin v. State, 818 S.W.2d at 785. (“When we interpret statutes....we seek to effectuate the ‘collec tive’ intent or purpose of the legislator who en acted the legislation.”). Inte rpreting §42.01(a)(8) as requiring a display to be in plain view would impermissibly add to the statute. See Cornet v. State, 359 S.W.3d at 222. The statutorily undefined term “ displays” as used in §42.01(a) (8) should be interpreted broadly to effectua te legislative intent. This Cou rt should hold that manifesting the presence of a gun and/or making a fraction of t he gun visible can satisfy the element of display . Adopting the trial court’s res trictive definition that requires a gun to be pulled before the display element is satis fied would be to encourage unnecessarily risky beha vior that could lead to trage dy before the State could secure a simple misdem eanor conviction under §42.01(a)(8)

. In conclusion, Appellant satisfi ed the Confession and Avoidanc e Doctrine. Though Appellant’s own restrictive lay interpretation of the te rm display led him to testify that he had not displ ayed his weapon, he also gave t estimony admitting to conduct that could meet both lay and legal definitions of displ ay as the term is used in §42.01(a)(8). Therefore, he did not, strictly speaking, den y display “in the legal sense of the word.” See Cornet v. State, 359 S.W.3d at 228 and Villa v. State, 417 S.W.3d 455, 458 (Tex. Crim. App. 2013) (defendant’s testimony r egarding13 conduct amounting to “penetration” within the meaning of Texas law was sufficient to satisfy the Confes sion and Avoidance Doctrine eve n though he denied penetration as he understood it ). Appellant testified to clear ly manifesting the presence of his gun to the compl ainant by his actions, and agre ed that it would be obvious just from his position th at he had a gun on his hip. ( R.R. Vol. 6 at 135- 136). Additionally, Appellant adm itted that a small portion of the gun barrel and possibly a piece of holster would have been visible during the encounter. (R.R. Vol. 6 at 141). This Court should hold that a rational jury co uld infer that Appellant “essentially admitted” t o all elements of the charged offense. See Cornet v. State, 359 S.W.3d at 226 & 228.
C. The Right to Defens ive Instructions Once the confession and avoidan ce doctrine has been satisfied, a defendant has the right to jury instructions on every claimed defensive t heory raised by the evidence. Granger v. State, 35 S.W.3d 36, 38 (Tex. Crim. App. 1999) and Bowen v. State, 162 S.W.3d 225, 229 (Tex . Crim. App. 2005). The gran ting of defensive instructions upon timely request guarantee the jury the opportu nity to make a fully informed decision. Miller v. S tate, 815 S.W.3d 582, 585 (Tex. Crim. App. 1991). On appeal, the evidence will be v iewed in the light most favora ble to the defendant’s requested submissi ons. Dix & Schmolesky, 43 Tex. P rac. Series:14 Criminal Practice and Procedur e, §43:30 at p. 905 (3d ed. 2011) and Bufkin v. State, 207 S.W.3d 779, 782 (Tex. C rim. App. 2006). The typical rule of appellate deference to trial court ru lings does not apply. Id. A defense is raised by the evidence if there is some evidence on each element of the defense that woul d support a rational inference that that element is true. Shaw v. State, 243 S.W.3d 647, 658 (Tex. Crim. App. 2007 ). It does not matter whether the evidence is w eak or strong, unimpeached or c ontradicted, and regardless of what the trial cour t may or may not think about i ts credibility, which is for the jury to judge. Hamel v. State, 916 S.W.3d 491, 493 (Tex. Crim. App. 1996) and VanBrackle v. State, 179 S.W.3d 708, 712 (Tex. App. – Austin 2005). “[An] instruction concerning a de fensive theory must be given i f it would result in an acquittal of the charged offe nse, if believed, without an ev aluation of the credibility of the claimed defense by the trial judge.” Dix & Schmolesky, 43 Tex. Prac. Series at §43:30, p. 905, f.n. #5, citing Bufkin v. State , 207 S.W.3d at 782- 783). A defendant’s testimony is by itself sufficient to raise defensive issues requiring instructions in the ju ry charge. Hamel v. State, 916 . S.W.3d at 493.
D. Testimony Raising the Defenses of Necessity and Self-defense15 Some examples of Appellant’s tes timony raising the defenses of necessity and self-defense are as follows: “And when I looked back up, he ha d leaned over in his car, and he was grabbing something... That made me worried right there. I had no idea what the guy was doing... [E]veryth ing about him told me that something wa s wrong.” (R.R. Vol. 6 at 131). “[He] started charging through. He didn’t care if I was in th e way or anything else. I have a car tha t’s 6,000 pounds coming directl y at me. There’s no room for me, the car and everyt hing else. My wife – if he hits my car, he hits my car. But my wife is in my car.” (R.R. Vol. 6 at 131). “I’m afraid that he’s going to run me over, hit my car, hit so mebody else... I put my hand out to tell him to s top. He don’t stop. I’m backi ng up, trying to get out of there... I can’t step out bec ause there’s cars going by us on the left.” (R.R. Vol. 6 at 132). “The guy is driving at me with a car. He’s got 6,000 pounds. I’m 242 right now... let’s call it 250 horsepowe r against my broken body. That ’s a battle I wouldn’t want to fight. (R.R. V ol. 6 at 137). [T]here was no room for me – there was not enough room for his car. I ’m the only thing in the are a. And he’s coming at you. I mean, enormous.” (R.R. Vol. 6 at 137).16 “So I wanted to let him know... I have the ability to defend mys elf.” (R.R. Vol. 6 at 137). “I tightened my shirt up, was the first thing I did.” (R.R. Vol. 6 at 135). “I was controlling my shi rt. I had a hold of the edge, and I was pulling it back tight so when I draw it... I c ould get everything out of the way.” (R.R. Vol. 6 at 141). “Then I... put my hand ove r my weapon.” (R.R. Vol. 6 a t 132). “[W]hen he seen I had a weapon , the front of his car went down , which told me, one, he’s off the gas and he ’s putting on the brakes. The man put his hands up.” (R.R. Vol. 6 at 138). “I achieved what I wanted done. I did not want him to run me over... I applied the force that was deemed necessary to, one, keep him from hitting me, keep him from hitting my wife and car...” (R.R. Vol. 6 at 138).
II. DISCUSSION SPECIFIC TO PO INT OF ERROR NO. ONE -
FAILURE TO INSTRUCT ON NECESSITY DEFENSE
A.
Error Appellant requested that the ju ry be instructed on the law of necessity under Penal Code §9.22. (R.R. Vol. 6 at 197). The necessity defense under P.C. §9.22 is a justification for engaging in conduct that otherwise would re sult in criminal liability. Dix & Schmolesky, 43 Tex. Prac. Series: Criminal Pr actice and Procedure, §43:27, p. 919 (3rd e d. 2011). There are three subs ections setting out17 the elements of the defense. S ee P.C. §9.22(1), (2) & (3). Su bsection (1) requires a defendant to first submit evid ence of a specific imminent har m. Stefanoff v. State, 78 S.W.3d 496, 500 (Tex. A pp. –Austin 2002). Evidence o f a generalized fear of harm will not suffice. B razelton v. State, 947 S.W.2d 644, 648 (Tex. App. –Ft. Worth 1997). “Harm” means anything reasonably regarded as loss, disadvantage, or injury, includi ng harm to another person in wh ose welfare the person affected is interested. P.C. §1.07(a)(25). “Imminent” means something that is immediate, something that is going to happen now. Stef anoff v. State, 78 S.W.3d at 501. When Complainant’ s vehicle came flying forward and was coming directly at Appellant, who had no room to move out of the way, Appellant was in imminent danger of being hit by the vehicle and suffering death or serious bodily injury. Also, Appellant’s wife was in imminent danger of being injured if Complainant hit their car. Subsection (1) further requires that after bringing forth evid ence of a specific imminent harm, a defendant mus t adduce facts that indicate a re asonable belief that violation of the provisions of a criminal statute was immediate ly necessary to avoid the harm. See P.C. §9.22( 1). A reasonable belief means “a belief that would be held by an ordinary and pruden t man in the same circumstance s as the actor.” P.C. §1.07(a)(42). Reasonablene ss is judged from the defendant ’s viewpoint at the time. Fitzgerald v. State, 782 S.W.2d 876, 885 (Tex. Crim. App . 1990). Whether18 a defendant’s beliefs a re reasonable is a fact question for the jury to decide, not a preliminary question for the cour t to evaluate in determining w hether a defense is raised. See Dix & Schmolesky, 43 Tex. Prac. Series at 43:30 at 905, f.n. #5[4]. 6 Another fact question for the jury under P.C. §9.22 is whether the desirability and urge ncy of avoiding the imminent harm clearly outweighs, according to ordinary standards of reasonableness, the harm sou ght to be prevented by the law proscribing the conduc t of the accused. P.C. §9.22( 2) and Dix & Schmolesky, 43 Tex. Prac. Serie s at §43:37 at 919. The defense of necessity “exonerates a person who commits p roscribed conduct in order to prevent an even greater harm.” Pe nnington v. State, 54 S.W.2d 852, 856 (Tex. A pp. –Ft. Worth 2001). Under the circumstances, a s described in Appellant’s te stimony, it was both desirable and urgent to avoid th e imminent harm of his being ki lled or seriously injured, and of his wife being in jured if Complainant struck th e small car in which she was a passenger. A rational ju ror could find that the desi rability and urgency of avoiding that harm clearly out weighed, according to ordinary standards of reasonableness, the harm sought t o be prevented by the law pros cribing

6 It is only when undisputed facts de monstrate a complete absence of evidence of an imminent harm, or immediate necessity to avoid that harm that a defendan t’s belief may appropriately be deemed unreasonable as a ma tter of law. Brazelton v., 947 S.W. 2d 644, 648-649 (Tex. App. –Ft. Worth 1997). See eg. Stefano ff v. State, 78 S.W.3d 496, 501 (T ex. App. –Austin 2002) (defendant’s considered decision to cultivate 15 marijuana plan ts for “medicinal” use because it could be necessary to avoid the symptoms of his illness failed to raise the necessity defense as a matter of law).19 Appellant’s commission of the C lass B misdemeanor of disorderly conduct, particularly since, according to Appellant, he never brandished the gun at Complainant. See P.C. §42.01(a)(8) & (d). 7 Determining whether §9.22 (3) w ill operate to exclude the nece ssity defense even where the requirements in (1) & (2) have been met, is a qu estion of law. Dix & Schmolesky, 43 Tex. Prac. Ser ies at §43:37 p. 919. In decidi ng this issue a court must determine whether “a legis lative purpose to exclude the ju stification claimed for the conduct does not otherwi se plainly appear.” P.C.§9.22 (3). The plain language codifying the necessity d efense evinces a legislative intent that the defense apply to all offenses unl ess the Legislature has specif ically excluded it from them. Bowen v. State, 162 S.W.3d 226, 229 (Tex. Crim. App . 2005). To determine whether a legislative purpose exists to exclude the n ecessity defense as a justification to the criminal co nduct in a particular case, cou rts focus on the statutory language of the offens e charged. Id. Where no legis lative purpose to exclude the defense plainly appear s in the text of that statute -- here §42.01 -- the necessity defense will be availab le. Id. The text of §42.01 d oes not exclude the §9.22 defense raised in Appellant’s case.

7 There are other statutes, under which Appellant is not charged, that seek to prevent other types of harm that can result from displaying a handgun in a particul ar fashion or under particular circumstances. See eg. P.C. § 22.05 (deadly conduct).20 Because the justification of Ne cessity was raised by the evide nce, the trial court erred in refusing Appellant ’s request that the jury be in structed on the defense. (See R.R. Vol. 6 at 197 & C.R. at 80-84).
B.
Harm Article 36.14 of the Code of Cr iminal Procedure provides that the trial judge shall deliver a written charge t o the jury, distinctly setting forth law applicable to the case. A timely requested def ensive issue becomes law appli cable to the case. Posey v. State, 966 S.W.2d 57, 62, f.n. #12 (Tex. Crim. App. 19 98). Where a defendant objects to any error in the charge, reversal is requi red if he suffered “some harm.” Almanza v. Sta te, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). The presence of any harm, regardl ess of degree, which results f rom preserved charging error, is sufficient t o require a reversal of the conv iction. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). While the erroneou s absence of an instruction on a defense that i s subject to the confession and avoidance doctrine is generally harmful, an Almanza analysis must still be conducted in each case. Cornet v. State, 417 S.W.3d 446 , 451 (Tex. Crim. App. 2013). U nder Almanza, appellate courts must consider the jury charge as a whole, the state of the evidence, the arguments of counsel, and any other relevant information re vealed by the record in assessing harm. Alma nza v. State, 686 S.W.2d at 171.21 The Entire Jury Charge The jury charge set out the ele ments of the single charged off ense and instructed the jury to decide w hether Appellant was guilty or n ot guilty. (C.R. at 89-91). It contained no justifi cation defense instructions and , therefore, provided no avenue through which the ju ry could render an acquittal. 8 See Vasquez v. State 830 S.W.2d 948, 951 (Tex. Crim. App. 1992). Given that Appella nt had “essentially admitted” to all elem ents of the offense, a guilty verdict was a forgone conclusion. See Pennington v. S tate, 545 S.W.3d 852, 859 (Tex. App. –Forth Worth 2001). The charge, as gi ven, authorized a finding of gui lt even if the jury believed Appellant’s e vidence that he acted out of necessity. See Miller v. State, 815 S.W.2d 582, 586, f.n. #4 (T ex. Crim. App. 1991). Appellant was also denied the a dvantage he would have received had the jury been instructed on necessity in that an instruction on a d efensive theory has the advantage of the trial court legitimating for the jury the defensive theories relied on by the accused. Dix & Schmolesky, 43 Tex. Prac. Seri es, Criminal Practice & Procedure (3d ed. 2011) at 908. Had it been properl y instructed, the

8 Even if the charge had included A ppellant’s requested instructi on on self-defense, the error in failure to instruct on necessit y would not have been harmless i n this case. Necessity and selfdefense are separate defens es. Bowen v. State, 162 S.W.3d 226, 229 (Tex. Crim. App. 2005). Under the record, the jury c ould have found Appellant’s conduct was justified by necessity and/ or self-defense or neither depe nding on which evidence it belie ved. See Bowen v. State, 187 S.W.3d 744, 474 (Tex. App. –Ft. Worth 2006).22 fact-finder would have needed onl y to have a reasonable doubt a s to whether Appellant’s actions were justif ied under P.C. §9.22. See P.C. §2.03(d). The State of the Evidence This trial was a swearing contes t. There were three eyewitnes ses, including Appellant, to the encounter betwe en Appellant and Complainant. They all differed on how Appellant handled his gun . Complainant testified that A ppellant pulled the gun out of its holster. (R.R. Vol. 5 at 27-28). The driver of the vehicle behind Appellant testified he never to ok it out of the holster, but ra ised his shirt, made the gun visible, and put his hand ov er the gun’s handle. (R.R. Vol . 5 at 76). Appellant testified that he tightened his shirt, but did not lift it, tha t he put his hand over the gun, and that only a very small portion of the gun barrel (less that 1⁄2 inch) and a piece of holster would have bee n visible. (R.R. Vol. 6 at 135 & 141). There was conflicting testimony on whether Appellant walked around his ca r and checked for damage, and whether he yelled at Complainant. (R.R. Vol. 5 at 27-28 & 86 & Vol. 6 at 124 & 128). Complainant den ied Appellant’s assertion that he was ever driving directly at him. (R.R. Vol. 5 at 56). He even denied ever driving on the shoulder of the road. (R.R. Vol. 5 at 52). The fact that the jury, in fi nding Appellant guilty under §42. 01(a)(8), necessarily believed he had dis played his weapon when he testif ied he hadn’t, does not telegraph what weight and credibility it would have assigne d to the defensive23 evidence had it been properly instructed. Appellant testified to conduct the jury was entitled to regard as display even if it did not comport wi th Appellant’s own understanding of the term. See Vernon v. State, 841 S.W.2d 407 , 408-410 (Tex. Crim. App. 1992) & Cornet v. S tate, 359 S.W.3d 217, 227-228 (Te x. Crim. App. 2012). Furthermore, it is immate rial that Appellant testified that the visibility of a small portion of the g un barrel and a piece of holster did not meet the criteria for display under the law. The jury was instructed that it was to receive the law only from the court. (C.R. at 90). Th erefore, it could have accept ed Appellant’s version of the facts without adopting his interpretation of the law. The Arguments of Counsel This case is simpler than most. There were two competing theo ries about Appellant’s behavior – “road ra ge” vs. self-defense/necessity. Both counsels for the prosecution and the defense questioned jury panelists on th eir own theory and each side relentlessly advanced that theory throughout trial. (R.R. Vol. 4 at 5, 36- 39 & 74-78 & Vol. 5 & Vol. 6). But while the State was allowed to argue and rely on its “road rage” theory and its characterization of Appellant as a “vigilante” in closing argument, the absence fro m the charge of Appellant’s re quested defensive instructions left him suddenly without a case despite the evide nce he had submitted. (R.R. Vol. 6 at 203 & 212-213). See Barron v. State , 353 S.W.3d 879, 884 (Tex. Crim. App. 2011)(defenda nt harmed when error in the c harge24 emphasized the State’s evidence supporting its theory of the ca se). Defense counsel was thus reduced to arguing reasonable doubt. (R.R. Vo l. 6 at 203). 9 Given that Appellant had essen tially admitted to all elements o f the offense, that argument was doomed to fail. Other Relevant Information Revealed by the Record Appellant’s case was built on th e notion that he had the right to immediately defend himself against the comp lainant. Defense counsel discus sed this right with the jury panel during voir dire . (R.R. Vol. 4 at 74-78). He n ever suggested at any point in the trial that Appellant ’s actions were not entirely j ustified. Contrast Cornet v. State, 417 S.W.3d 446 , 454-455 (Tex. Crim. App. 2013) (defense attorney who had requested instr uction on medical care defense categorized defendant’s examination of child for signs of sexual abuse as a “mistake” and as “inappropriate behavior”). Couns el questioned witnesses on mat ters relevant to the necessity defense and Appellant gave detailed testimony on his encounter with the complainant in support thereof . (R.R. Vol. 6 at 105, et seq.). The record shows that counsel’s request for an in struction on the justification of necessity was not “an afterthought.” Contrast Cor net v. State, 417 S.W.3d at 455 . Counsel filed a written request for such an instr uction the first day of trial, as well as requesting it at the charge conference. (C.R . at 80-84 & Vol 6 at 197). Whe n a defendant’s

9 Defense counsel made clear th at he did not wish to abandon the justification defenses, but had no choice. (R.R. Vol. 6 at 203).25 entire case is built on the neces sity to defend himself, a tria l court’s refusal to submit a necessity defense instr uction to the jury causes harm to the accused. See Vasquez v. State, 830 S.W.2d 948 , 951 (Tex. Crim. App. 1992). Because Appellant suffered “some harm” Point of Error No. One should be sustained. See Almanza v. State, 686 S.W.2d 157 , 171 (Tex. Crim. App. 1984).
V. DISCUSSION SPECIFIC TO PO INT OF ERROR NO. TWO -
FAILURE TO INSTRUC T ON SELF-DEFENSE
A.
Error Appellant requested that an ins truction on the law of self-def ense be included in the jury charge. ( R.R. Vol. 6 at 195-196). Under Penal Code, §9.31 a person is justified in using for ce against another when and to the degree the actor reasonably believes the force is immediately necessary to prote ct the actor against the other’s use or attempted us e of unlawful force. P.C. 9.31( a). Reasonableness is, therefore, judged from the act or’s standpoint. It is not n ecessary for a jury to believe that the other person was actually using or attempting to use unlawful force against the defendant for the def endant’s right of self-defense to exist. Hamel v. State, 916 S.W.2d 491, 493 (Tex . Crim. App. 1996). A reasonabl e apprehension of danger – actual or apparent – “ is all that is required before o ne is entitled to26 exercise the right of self-defen se against his adversary.” Val entine v. State, 587 S.W.2d 399, 401 (Tex. Crim. App. 1979). See also Walters v. St ate, 247 S.W.3d 204, 213, f.n. #37 (Tex. Crim. App. 2007). To be entitled to rely on sel f-defense under §9.31, Appellant must have used “force” during his encounter with Complainant. See P.C. §9.31. In Boget v. State, the Court considered the question of what it means to di rect force “against” another. Boget v. State, 74 S. W.3d 23, 27 (Tex. Crim. App. 200 2). Though Boget’s analysis focused on defi ning a term other than “force,” that analysis is nonetheless instructive in deter mining whether force was used i n the instant case. Boget was charged with criminal mischief for breaking the windo ws on a truck. Boget v. State, 74 S.W.3d at 24 . He claimed he h ad been defend ing himself against an attack by the driver , who he claimed hit him with he r truck. Id. at . His request for a self-defense instr uction was denied. Id. at 25. On appeal, the State argued that under §9.31, self-defen se is available only when a defendant is charged with a crime against a person . Id. The Court of Criminal App eals rejected this argument. Id. at 31. As Boget stated that a court’s duty when construing a statute is to effectuate the intent of the Legislature . Boget v. State, 74 S.W.3d at 30 . Though a court, where possible, is to look to the text of a statute in determin ing legislative intent, when the language is ambiguous, ext ratextural factors may be co nsidered. Id. at 2727 and Boykin v. State, 818 S.W.2d 782, 785-786 (Tex. Crim. App. 1 991). The Boget opinion pointed out that when t he Penal Code was rewritten, the justification of self-defense was moved out of sections involving offenses such as assault and homicide, and placed in the Code’s general section of justifica tion. Boget v. State, 74 S.W.3d at 29. It found this f act to be the strongest argume nt against limiting self-defense to assaultive crimes only. Id. Ultimately, Boget held that P.C. §9.31 should be interpreted i n a way that encourages restraint in defens ive situations. Id. at 30. Acco rd Alonzo v. State, 353 S.W.3d 778, 783 (Tex. Crim. App . 2011). Though the law recogni zes that the right of self-preservation entitles a pe rson to defend himself by tak ing the life of his assailant if necessary, the gener al rule that a person should o nly use such force as necessary in defending himself wa s “[w]ithout question” a princ iple Texas legislators sought to embody wh en enacting §9.31. Boget v. Sta te, 74 S.W.3d at 30. Boget gives a hypothetical tha t demonstrates the equity of this approach. Id. at 30-31. In it, a person is about to be run down by a speeding c ar. Id. at 30. If she shoots the driver she would be e ntitled to a self-defense instr uction at a murder trial. Id. at 31. If she brandi shes her pistol and shoots at the car’s tires and is later charged with criminal mischief, a denial of a self-defense char ge because she did not use force against a person w ould be contrary to the purpose of the statute28 because it would punish the indi vidual who used the least force possible in selfpreservation. Id. at 31. Though §9.31 only applies when the defendant used “force” agai nst another, force can take different forms. In keeping with the goal of en couraging individuals to use the least amount of force possible in defending themselv es, courts should interpret “force” to include def initions of the word that are n ot limited to physical violence or restraint. Black’s L aw Dictionary defines “force,” in part, as power or violence directed against a per son. Black’s Law Dictionary at 519 (Seventh ed. 2000)(abridged). It defi nes “power,” in part, as dominance, co ntrol or influence over another. Id. at 953. In th e instant case, Appellant did not resort to physical violence, but used “force” by exer ting dominance and gaining co ntrol over the complainant be demonstrating to him that he had a weapon and co uld use it in defending himself . (R.R. Vol. 6 at 132, 135 & 137). In respo nse, Complainant submitted to this force by appl ying his brakes and putting his hands up. (R.R. Vol. 6 at 138). No shots were fired, but this Court should hold tha t force was used against another within the meaning of §9.31. Appellant’s testimony raised the issue of self-defense and he was entitled to have the jury instructed on it . It is universally recognized t hat when a person is about to be run down by a car ope rated by a driver who refuses to stop, (as appellant testified was the case ) that person has a right to im mediately defend29 himself in some manner. See Boge t v. State, 74 S.W.3d 30-31 (T ex. Crim. App. 2002). As noted hereinabove, acco rding to Boget, even if he sh oots and kills the driver such a person will be ent itled to a self-defense instruc tion at a subsequent murder trial. Id. The questi on of whether, in the instant ca se, Appellant was reasonable in believing that for ce, and the degree of force he used, was immediately necessary to defend hi mself against the complainant s use or attempted use of unlawful force, should ha ve been submitted to the jury. See Rodriguez v. State, 544 S.W.2d 382, 384 (Tex. C rim. App. 1976) (“[W]hether a ppellant’s beliefs, fears and actions were r easonable as required by statu te, were also fact issues for the jury, but the jur y was also deprived of the oppo rtunity to decide those issues...”) and VanBrackle v. State, 179 S.W.3d 708, 713 (Tex. Ap p. –Austin 2005) (whether a defendant’s be liefs reasonable is a fact quest ion for the jury, not a preliminary question for the tria l court to evaluate in determi ning whether a selfdefense instruction is warranted ). The trial court erred in re fusing Appellant’s request that the jury be instruct ed on self-defense under P.C. §9.31.
B.
Harm Article 36.14 of the Code of Cr iminal Procedure provides that the trial judge shall deliver a written charge t o the jury, distinctly setting forth law applicable to the case. A timely requested def ensive issue becomes law appli cable to the case.30 Posey v. State, 966 S.W.2d 57, 62, f.n. #12 (Tex. Crim. App. 19 98). Where a defendant objects to any error in the charge, reversal is requi red if he suffered “some harm.” Almanza v. Sta te, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). The presence of any harm, regardl ess of degree, which results f rom preserved charging error, is sufficient t o require a reversal of the conv iction. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). While the erroneou s absence of an instruction on a defense that i s subject to the confession and avoidance doctrine is generally harmful, an Almanza analysis must still be conducted in each case. Cornet v. State, 417 S.W.3d 446 , 451 (Tex. Crim. App. 2013). U nder Almanza, appellate courts must consider the jury charge as a whole, the state of the evidence, the arguments of counsel, and any other relevant information re vealed by the record in assessing harm. Alma nza v. State, 686 S.W.2d at 171. The Entire Jury Charge The jury charge set out the ele ments of the single charged off ense and instructed the jury to decide w hether Appellant was guilty or n ot guilty. (C.R. at 89-91). It contained no justifi cation defense instructions and , therefore, provided no avenue through which the ju ry could render an acquittal. 10 See Vasquez v. State

10 Even if the charge had included A ppellant’s requested instructi on on necessity, the error in failure to instruct on self-def ense would not have been harmles s in this case. Necessity and selfdefense are separate defens es. Bowen v. State, 162 S.W.3d 226, 229 (Tex. Crim. App. 2005). Under the record, the jury c ould have found Appellant’s conduct was justified by necessity and/ or self-defense or neither depe nding on which evidence it belie ved. See Bowen v. State, 187 S.W.3d 744, 474 (Tex. App. –Ft. Worth 2006).31 830 S.W.2d 948, 951 (Tex. Crim. App. 1992). Given that Appella nt had “essentially admitted” to all elem ents of the offense, a guilty verdict was a forgone conclusion. See Johnson v. Sta te, 271 S.W.3d 359, 368 (Tex. Ap p. –Beaumont 2008). The charge, as given, aut horized a finding of guilt eve n if the jury believed Appellant’s defensive evidence . See Miller v. State, 815 S.W.2 d 582, 586, f.n. #4 (Tex. Crim. App. 1991). Appellant was also denied the a dvantage he would have received had the jury been instructed on self-def ense in that an instruction on a defensive theory has the advantage of the trial court legitimating for the jury the defensive theories relied on by the accused. Dix & Schmolesky, 43 Tex. Prac. Seri es, Criminal Practice & Procedure (3d. ed. 2 011) at p. 908. Had it been pro perly instructed, the fact-finder would have needed onl y to have a reasonable doubt a s to whether Appellant’s actions were justifie d. See P.C. §2.03(d) & VanBra ckle v. State, 179 S.W.3d 708, 717 (Tex. App. –Austin 2005). The State of the Evidence This trial was a swearing contes t. There were three eyewitnes ses, including Appellant, to the encounter betwe en Appellant and Complainant. They all differed on how Appellant handled his gun . Complainant testified that A ppellant took the gun out of its holster. (R.R. Vol. 5at 27-28). The driver of the vehicle behind Appellant testified he never to ok it out of the holster, but ra ised his shirt, made the32 gun visible, and put his hand ov er the gun’s handle. (R.R. Vol . 5 at 76-77 & 80). Appellant testified that he tightened his shirt, but did not li ft it, that he put his hand over the gun, and that only a ve ry small portion of the gun bar rel (less that 1⁄2 inch) and a piece of holster would ha ve been visible. (R.R. Vol. 6 a t 135 & 141). There was conflicting testimony on wh ether Appellant walked around hi s car and checked for damage, and whether he yelled at Complainant. (R.R . Vol. 5 at 86, & Vol. 6 at 124-125). Complainant denied Appellant’s assertion t hat he was driving directly at him as he was atte mpting to leave the scene. (R.R. Vol. 5 at 56). The list goes on. The record demonstrates that the jury could have found Appella nt committed all elements of the offe nse no matter which witness, including Appellant, it believed. What th e record does not show is how t he jury would have viewed his defensive evidence since it was not allowed to consi der it in rendering its verdict. Appellate courts hav e reversed convictions to all ow a jury to decide whether it believes evidence offe red in support of a claimed de fense. The fact that the jury, in finding Appellant guilty under §42.01(a)(8), neces sarily believed he had displayed his weapon when he testified he hadn’t, does not telegraph what weight and credibility it would have assigned to the defensive evidence had it been properly instructed. Appellant t estified to conduct the jury w as entitled to regard as display even if it did not c omport with Appellant’s own unde rstanding of the33 term, which required that he ta ke the gun out of the holster or exhibit it in plain view. See Vernon v. State, 841 S.W.2d 407, 408-410 (Tex. Crim. App. 1992) & Cornet v. State, 359 S.W.3d 217 , 227-228 (Tex. Crim. App. 2012) . Furthermore, it is immaterial that Appellant tes tified that the visibility of a small portion of the gun barrel and a piece of holster did not meet the criteria for dis play under the law. The jury was instructed that it was to receive the law only fro m the court. (C.R. at 90). Therefore, it could have acc epted Appellant’s version of the facts without adopting his interpretation of the law. The Arguments of Counsel This case is simpler than most. There were two competing theo ries about Appellant’s behavior – “road ra ge” vs. self-defense/necessity. Both counsels for the prosecution and the defense questioned jury panelists on th ose issues and each relentlessly advanced their the ory throughout trial. (R.R. Vol . 4 at 5, 7 & 74-78). But while the State was allowed to argue and rely on its “road rage” theory and its characterization of Appellant a s a “vigilante” in closing argum ent, the absence from the charge of Appellant’s r equested defensive instructions left him suddenly without a case despite the evide nce he had subm itted. (R.R. Vol . 6 at 203 & 212- 213). See Barron v. State, 353 S. W.3d 879, 884 (Tex. Crim. App . 2011)(defendant harmed when error in the charge emphasized the State’s evidence supporting its theory of the case). Defense c ounsel was thus reduced to argui ng reasonable34 doubt. (R.R. Vol. 6 at 203). 11 Given that Appellant had essentially admitted to all elements of the offense, tha t argument was doomed to fail. Other Relevant Information Revealed by the Record Appellant’s case was built on th e notion that he had the right to immediately defend himself against the comp lainant. Defense counsel discus sed this right with the jury panel during voir dire . (R.R. Vol. 4 at 74-78). He n ever suggested at any point in the trial that Appellant ’s actions were not entirely j ustified. Contrast Cornet v. State, 417 S.W.3d 446 , 454-455 (Tex. Crim. App. 2013) (defense attorney who had requested instr uction on medical care defense categorized defendant’s examination of child for signs of sexual abuse as a “mistake” and as “inappropriate behavior”). Couns el questioned witnesses on mat ters relevant to the necessity defense and Appellant gave detailed testimony on his encounter with the complainant in support thereof . (R.R. Vol. 6 at 105, et seq.). The record shows that counsel’s request for an in struction on the justification of necessity was not “an afterthought.” He f iled a written request for a self-defen se instruction the first day of trial, as well as reques ting it at the charge conference . (C.R. at 80-84 & Vol 6 at 197). Contrast Cornet v. S tate, 417 S.W.3d at 455. When a defendant’s entire case is built on the necessity to defend himself, a trial court ’s refusal to submit a self-defense instruction to the j ury causes “some harm” to the accused. Johnson v.

11 Defense counsel made clear th at he did not wish to abandon the justification defenses, but had no choice. (R.R. Vol. 6 at 203).35 State, 271 S.W.3d 359, 369 (Tex. A pp. –Beaumont 2008) & Guilbea u v. State, 193 S.W.3d 156, 161 (Tex. App. –Houston [1 st Dist.] 2006). Because Appellant suffered “some harm” Point of E rror No. Two should be sustained . See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App 1984).
PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED , Appellant requests that this Court reverse Appellant’s conv iction and order a new trial. Respectfully subm itted, /s/ C onnie J. Kelley Connie J. Kelley Attorney for Appellant 1108 Lavaca #110-221 Austin, Texas 78701 (512) 445- 4504 (512) 478- 2318 (fax) warrentucker@grandecom.net State Bar Number 1 1199600
CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoin g was served on Susan D. Reed, Bexar County Dist rict Attorney at Paul Elizondo Tower, 101 W. Nueva, 5 th Floor, San Antonio, TX 78205 by regular mail on this 30 th day of January, 2015. /s/ C onnie J. Kelley C onnie J. Kelley36 CERTIFICATE OF COMPLIANCE This is to certify that the for egoing document is in 14 point font, with the exception of footnotes, which are in 12 point font. The word c ount of the foregoing document is 8,032 words , which is in compliance with T.R.A.P. Rule
9.4. /s/ C onnie J. Kelley C onnie J. Kelley