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

NO. 03-09-00538- CR

Jim m ie Ray Tullos Jr., App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 147 TH JUDICI AL DISTRICT NO. D-1 -DC- 09- 2004 70, H ONO RAB LE WI LF ORD F LOW ERS, JUDGE P RESIDING

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

A jury convicted appellant J immie Ray Tullos, J r. of the offe nse of ag g ravated assault with a deadly wea

pon. See Tex. Penal Code Ann. § 22.02(a) (2) (West Supp. 2009). The jury hear d evidenc e that in the ear ly morning hours of J anuar y 25, 2009, in downtown Austin, Tullos g ot into

a phy sical alterc ation with Nathan L ipson and Donald Schmit. During the alterc at i o n , witnesses testified, Tullos exhibi ted a knife. Tullos’s theory at trial was that h e h ad ac t ed in self-de fense during the alterc ation to preve nt Schmit from robbing him, and he prese nted evidenc e to that eff ect. Acc ording ly , the district court instructed the jury on the law of self-de fense , but the jury never theless found Tullos g

uilty as char g ed. Punishm ent was a ssessed at 25 y ear s’ imprisonment. This a ppeal followed. I n a single issue on appea l, Tullos asser ts that the district court err ed in not providing an additional instruction related to self-de fense that trial counsel did not reque st and that is being argued for the f irst time on appeal. We will aff irm the judg ment.STANDARD OF REVIEW We revie w claims of jury char g e er ro r under the two-prong ed test set out in Almanza v. State , 686 S.W .2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’ g ); Swearingen v. State , 270 S.W .3d 804, 808 (Tex. App.—Austin 2008, pet. ref ’d). We first deter

mine whether err or exis ts. N g o v. State , 175 S.W .3d 738, 743 (Tex. Crim. App. 2005); Swearingen , 270 S.W .3d at 808. I f

err or exis ts, w e then evaluate the harm cause d by the err or. Ngo , 175 S.W .3d at 743; Swearingen , 270 S.W .3d at 808. The deg ree of harm req u i re d fo r reve rsal depends on whether that err or was prese rved in the trial court. When err or is prese rved in the trial court by timely objection, the rec ord
must show only “some harm.” Almanza , 686 S.W .2d at 171; Swearingen , 270 S.W .3d at 808. By contra st, unobjected- to char g e err or require s reve rsal only if it resu l t ed i n “egr eg ious harm.” See Neal v. State , 256 S.W .3d 264, 278 (Tex. Crim. App. 2008).

ANALYSIS I n his sole issue on appea l, Tullos complains about t h e d i s trict court’s char g e reg arding the law of

self-de fense . I n rele vant par t, the court’s c harg e provide d:

V. Upon the law of self defe nse y ou are instructed that a person is justified in u s i n g forc e ag ainst another when and to the deg ree the actor rea sonably believes the forc e is immediately nece ssary to protec t the actor ag ainst the other’s use or attempted use of unlawf ul force

.

. . . .

2A per son is just ified in using de adly forc e ag ainst another: (1) if the person would be justified in using for ce a g ainst the other; and (2) when and to the deg ree the person rea sonably believes the deadly forc e is immediately nece ssary to preve nt the other’s imminent commission of robber y .

. . . . A “pre sumption” is a conclusion the law require s y ou to rea ch if cer tain other fac ts exis t. The defe ndant’s belief that the deadly forc e was immediately nece ssary is presumed to be re asonable if the def endant: (1) knew or had rea son to believe that the person ag ains t wh o m t he deadly forc e wa s used was c ommitt ing or attempting to c ommit robbery ; (2) the defendant did not provoke the person ag ainst whom the forc e was used; (3) the defe ndant was not othe rwise eng ag ed in criminal activity , other than a Class C misdemeanor t h at is a violation of a law or ordinanc e regulating traff ic at the time the f

orce was used.

. . . . “Rea sonabl e b el ief” means a belief that would be held by an ordinary and prudent person in the same circ umstances a s the defe ndant. The presumpti o n of rea sonable belief applies unless the State proves bey ond a rea sonable doubt that the fa cts g iving r ise to the presumption do not exi st. I f the State fails to pr ove bey ond a re asonable doubt that the fac ts g iving rise to the presumption of re asonable belief do not e x ist, the jury must find that the presumed fac ts ex ist. Even though the jury may find the presumed fac t does not exis t, the state must prove bey ond a re asonable doubt eac h of the e lements of the of fense char g ed.

3I f the jury has a rea sonable d o u b t as to whether the presumed fac ts exis t, the

presumption applies and the jury must consider the pre sumed fac t to ex ist. VI

. Now bear ing in mind all instructions, if y ou believe from the evidenc e bey ond a rea sonable doubt that the defe ndant, J immie Ray Tullos, J r. . . . did then and there intentionally or knowing ly thr ea t en Donald Schmit with imminent bodily injury and did then and there use or exhibi t a deadly wea pon, to-wit: a utilit y knife, during the commission of said assault; but y ou further find fr o m t h e ev i dence , or have a rea sonable doubt the reof

, that the defe ndant rea sonably believed, or is pr esumed to have rea sonably bel ie v e d a s viewed from his standpoint alone, that deadly forc e when and to the deg ree used, if it was, was immediately nece ssary to preve nt the imminent commission by the said Donald Schmit of robber y , y ou will acquit the defe ndant and say by y our ver dict not guilty

.
On appea l, Tullos does not contend that the above instructions wer e improper. Rather, he claims that the district court should have inc luded an a dditional inst ruction that the de fenda nt is entitled to a

n acquittal when either the State fails to prove bey ond a rea sonable doubt that the presumed fac t does
not exis t or the jury has a rea sonable doubt whether the presumed fac t exis ts. I n Tullos’s view, not including such an additional instruction “cr eate s not only jury confusion but most importantly the very rea l possibili ty that a defe ndant will be convicted of a crime in which a presumed fac t justify ing the def endant’ s conduct e x ists.” The trial court is require d to deliver to the jury “a writ t en char g e distinctly setting forth the law applicable to the case .” Tex. Code Crim. Proc

. Ann. art. 36.14 (West 2007). That is what the district court did here

. Trac king the rele vant provisions in the penal code, the definitional portion of the char g e proper l y i n structed the jury on the law of self-de fense , see Tex. Penal Code Ann. § 9.31 (West Supp. 2009) , the law of deadly forc e, see id

. § 9.32 (West Supp. 2009), and the law reg arding presumptions, see id

. § 2.05 (West Supp. 2009), including the State’s burden to prove
4bey ond a rea sonable doubt that fac ts g iving rise to the presumption do no t exis t. The application

portion of the char g e then proper ly instructed the jury reg arding t h e ci rcumstanc es under which the jury must a cquit Tullos. We a re awa re of no authority , statutory or otherwise, that require s the trial court to submit the ty pe of additional instruction now reque sted by Tullos, nor does Tullos cite
to any such authority in his brief. We find no err or in the district court’s char g e. See Holley v. State , 766 S.W .2d 254, 256 (T ex. Crim. App. 1989) (finding no err or in jury char g e when instructions “provide d the jury with a complete map which direc ted [i t] throug h eac h step nece ssary to convict”) ; Daniel v. State , 486 S.W .2d 944, 947 (Tex. Crim. App. 1972) (in revie wing jury char g e for alleg ed

err or, in this c ase complaint that char g e as w orded w as conf using, “ [t ]he charg e should be view ed

as a w hole, and r eview should not be limited to parts of the c harg e standing alone” ).

We also observe that Tullos did n o t o b j ec t d uring trial to the absenc e of the instruction he now reque sts for the first time on appea l. Thus, even if the omission of the additional i n s t ru ct i o n was err oneous, Tullos would not be entitled to reve rsal unless the harm from that

o m i s s i o n was eg reg ious. On this rec ord, we could not conclude that it was. Ag ain, the jury was proper ly instructed reg arding what circ umstances under which it must acquit Tullos, and there is no i ndication in the rec ord that the jury was confuse d by the court’s instructions or th at T u l l o s wa s convicted of

a cr ime in which a pr esumed fa ct justify ing T ullos’s conduct exists

. We overrule Tullos’s sole issue on appea l.

5CONCLUSION We affir m the judgme nt of the district court.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Waldrop Affir med Filed: Jul y

22, 2010 Do Not Publish

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