### 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. 03-17-00669- CR

John Ch ristopher F oster , Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 403 RD JUDICI AL DISTRICT NO. D-1 -DC- 17- 2010 20, H ONO RAB LE B RENDA KENNEDY , JUDGE P RESIDING

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

J ohn Christopher Foster was char g ed with ag g rava ted assault family violence fo r alleg edly assaulting Sarah Morris, who Foster had a dating rela tionship with at the time, and for using a deadly wea

pon during the o ff

en s e. S ee Tex. Penal Code §§ 22.01(a) (listing elements of offe nse of assault), .02(a) -(b) (1) (providing that defe ndant commits ag g rava ted assault if he “ca

uses serious bodily injury to another ” and that offe nse is first-deg ree felon y i f defe ndant uses deadly

wea pon “and cause s serious bodily injury to a person whose rela tionship to or association with the defe ndant i s d es cr i b ed by ” provisions of Fa mily Code). During the trial, Foster reque sted a jury instruction on self-de fe n s e, but the district court denied that reque st. At the end of the g uilt-orinnocenc e phase, the jury found Foster g uilty of the char g ed offe nse and also found that Foster used

a deadly wea

pon during the offe nse. At the end of the punishment phase, the jury assessed Foster ’s punishment a t se ventee n y ear s and six months’ imprisonment. See id. § 12.32 (listing punishmentrang e for first-deg ree felony ). The district court rende red its judgme nt of conviction in acc ordanc e with the jury ’s v er d i ct s . I n two issues on appea l, Foster arg ues that the district court err ed by deny ing his reque st for an instruction on self-de fense and by failing to co n v en e a hear ing on his motion for new trial. We will reve rse the district court’s judgme nt of conviction and rema nd for further proce eding s.

BACK GR OUND As set out above, Foster was char g ed with ag g rava ted assault family violence. Orig inally , th e indictment alleg ed that Foster assaulted Morris by “intentionally , knowing ly , and

rec klessly caus[ing] serious bodily injury to

. . . M o rr i s ” in the following differ ent way s: (1) “by
g rabbing

. . . Morris wit h his hand,” (2) “by squeezing

. . . Morris wit h his hand,” (3) “by striking

. . . Morris with his hand,” (4) “by pulling

. . . Morris’[s] hair,” and (5) “by cutting

. . . Morris with

a knife.” The indictment also alleg ed that Foster committed the assault while using and exhibi ting

a deadly wea

pon (a knife). After the various witnesses testified at trial, the State abandone d the first three alterna tive assault all eg ations. Consist ent with the rema ining alleg ations, the jury char g e instructed the jury to find Foster g uilty if they deter mined that Foster “ca

use[d] serious bodily injury to . . . Morris . . . by

. . . pulling . . . Morr is’[s] hair[] or . . . cutting . . . Morris with a knife .” During the t rial, Foster, M orris, Morris’s neig hbor, several medical personne l, and

numerous law-e nforc ement officia ls testified. I n addition, photo gra p h s of Morris’s home and of in ju r ie s th a t M o r r is a n d F o s te r a ll e g e d ly s u s ta in e d w e r e a d mi tt e d in to e v id e n c e . T h e p h o to g r a p h s o f Morris’s home show blood, clumps of hair, and fec es in sever al rooms. The photogr aphs of Morris showed signific ant injuries to her fac e and head, including an injury to her scalp. Two photogr aphs

2taken o f Fo ster on the day of the offe nse showed lace rations on his neck, and a photogr aph taken

well af ter the of fense purportedly

showed a scar from an injury

to Foster’ s armpit.
Fur thermore , rec ording s of phone conver sations betwee n Foster and two individuals

occur ring whil e h e was in jail and of a 911 call made by Morris’s neig hbor wer e admitted into evidenc e. On the rec ording of the 911 call, Morris’s neig hbor stated that Foster was beating Morris, that Morris knocked on the neig hbor’s door for hel p , and that the neig hbor could hear Morris

scre aming and pleading with Foster to stop. On the rec ording s of the phone conver sations from jail,
Fo s t er stated that he took a knife awa y from Morris afte r she held the knife to his throat, that h i s throat was cut when he pushed ag ainst the knife, that he cut his hand in the proce ss, and that he cut Morris’s hair

. During her tes t i m o n y , Morris explained that Foster had assaulted her throug hout their rela tionship by punching her in the fac e and that this oc curr ed as rec ently as one wee k befor e the incid ent in question. Reg arding the day of the alleg ed offe nse, Morris explained that Foster broug ht two knives to her be fore she wa s g oing to take a bath and told he r how to kill herse lf, that he started y elling at her about the fac t that he could not find his cell phone, that he left her home, and that she locked the door when he left. I n addition, Morris rela ted that Foster returne d a few minutes later, “busted [t he front door] open” while she was still in the living room, “start[ed] punching ” her in the fac e, and strang led her neck with two hands. Fur t h er , M o rr i s re called that she felt her life “slipping awa

y ” while she was being strang led, that she thought she “wa s g oing to die,” that she could not brea the, and that she “def ecated [her]self” at some point.

3Next, Morris ex plained that F oster st opped choking her to c ontinue looking f or his phone and that, at that point, she ran to he r neig hbor’s house. Mor eover , Morris stated that Foster
g rabbe d her “by [her] hair and drag [ ged h er] back into the hous e,” that he used a knife “to cut off [her] hair,” that she foug ht for the knife and cut her hands during the strug g le, that she held the knife to his neck and told him to stop, that Foster started laughing and re g ained possession of the knife, and that Foster said he was g oing to kill her. Additionally , Morris testified that she asked Foster to let her take a bath to c lean herse lf, that Foster ag ree d but stated that he would stay in the bathroom with her and hold onto the knife, that Foster passed out beca use he was intox icated, that she g rabbe d the knives and place d them in the bathtub, that the police showed up shortly there afte r, and that she left the home w hen the police arr ived. Fur ther, Morr is specifica lly

denied a ttacking Foster

first.
I n addition to Morris testify ing, the State called Offic er Matthew Murphy to the stand

to discuss his observa tions on the night in questio n wh en h e responde d to a 911 call conce rning Morris. Offic er Murphy rela ted t hat he first noticed blood on t h e front porch and doorfr ame, that he went inside the residenc e and saw more blood and also clumps of hair in the living room, that he observe d Foster unconscious in the hallway with b l o o d on his hand, that Foster “had long hairs stuck underne ath” his fing erna ils, and that Foster “had some lace rations to his neck.” Next, Offic er Murphy rec alled that he hear d Morris call for help; that “she had swelling , discoloration, and blood

cover ing the majority of her fac e”; that some of her hair was missing; that she had a lace ration on her head; and that she had “re d marks on her neck.” When descr ibing the extent of Morris’s injuries, Offic er Murphy stated that Morris had “sig nificant swelling to the majori t y o f h er fa ce” causing

one of her ey es to be near ly swollen shut a nd that a larg e “ar ea of skin

. . . was completely missing

4from her

scalp.” I n addition, Offic er Murphy testified t hat he found “two, possibly more, knives” in the bathtub. 1 Following Offic er Murphy ’s testimony , a para m ed ic, David Curvin, was called to the stand to discuss his trea tment of Morris. Reg arding Morris’s injuries, Curvin explained that she had swelling to both ey es, had bruising on her fac e, had lace rations to her throat and left hand, had bruises on her knees, and “had an are a on the bac k of her head w here somebody

had sliced a

larg e portion of her scalp off.” Reg arding the last i n j u ry , C u rvin explained that if the wound was not
trea ted, it “could [have] become infec ted” and “could eventu al l y [ h av e] kill[ ed] the patient.” I n addition, Curvin rela ted that Morris told him that she had been “re peate dly struck with fists and the butt or handle of a knife ” and tha t Foster tried to cut her hair off. When discussing the injuries to Morris’s left hand, Curvin discussed how Morris told him that she injured her hand when “trying to
g et the knife awa

y from” Foster and when “fig hting off [Foster]

. . . with his knife.” Moreove r, Curvin testified that Morris stated that Foster choked h er to the point wher e she “almost passed out,” that she wa s so scare d during the i ncident that she de fec ated on he rself, a nd that she thoug ht that Foster

“wa s g oing to kill” her

. 2 Next, the State called Detec tive Alfonso Ander son to the stand, and he testified that he went to the scene of the offe nse and spoke with Foster and Morris. When discussing h i s

conver sation with Foster , Detec tive Ander son rela ted that Foster had long but “ver y s u perf icial”

Testimony simil ar to that of Offic er Murphy ’s was g iven by Offic er Matth ew Hootman, 1 who also re sponded to the sce ne on the nig ht in question. One of the nurses who trea ted Morris on the night in question, Kimberly Conkl i n , wa s 2 c a ll e d to th e s ta

n d a n d p r o v id e d s im il a

r te s ti mo ny r e g a

r d in g th e e xte n t a

n d n a tu r e o f M o r r is ’ s in ju r ie s . 5“scr atch marks along his throat,” that Foster ’s hands looked swollen, and that Foster h ad cu t s o n

his fing ers. Reg arding the injuries to Foster ’s hands, Detec tive Ander son stated that swollen hands

can be a sign that the person has hit something with his hands, but Detec tive Ander son also testified that some of the injuries might have been defe nsive in nature

. Additionally , Detec tive Ander son discussed how when he talked with Morris, she stated that she g ather ed the knives and place d them in the tub to hide them beca use s h e wa s af

ra i d Fo ster was g oing to kill her. Fur ther, Detec tive Ander son testified t h at M o rr i s stated that Foster tripped her, g ot on top of her, punched her, and strang led her for two minutes, and Detec tive Ander son rec alled that Morris also rec ounted that she defe cate d when she was being strang led, that Foster let her g o for a m o m en t , t h at she ran to her neig hbor’s home s ee k i n g h el p , that Foster broug ht her back to the house, that Foster picked up a knife, t h at Fo s ter started “cutting her hair off,” that he held the knife to her throat, and that he th r e a te n e d to k il l h e r . I

n a d d it io n , D e te c ti v e A n d e r s o n r e c a ll e d th a t M o r r is in it ia ll y e xp r e s s e d c o n c e r n that she mig ht be cha

rg ed for cutting F oster’s ne ck. 3 During his case in chief

, Foster el ec t ed to testify and was called to the stand two times. I n his first appea ranc e on the stand, Fost er admitted that he was seeing another woman and testified that on the night befor e the all eg ed offe nse, Morris wanted him to watch her have

sex with another man to punish him for the aff air. Fur ther, Foster stated t h at h e decide d to leave Morris’s home but that befor e he left, Morris g rabbe d his stuff and tackled him in the front y ard in order to keep him from leaving

. Reg arding the day of the offe nse, Foster rela ted that they had sexual

I n his testimony , Detec tive An d erson provided testimony simil ar to that g iven by other 3 witnesses desc ribing the sce ne and Mor ris’s injuries. 6intercour se but sta rted to a rg ue afte rwa

rds. When de scribing the arg ument, Foster rec alled that he

was “being a jerk to her” by say ing “mea n” things, t hat she threa

tened to kill herse lf, that she
g rabbe d a knife, and that she “starte d to cut her hair off.” Next, Foster rec alled that Morris attacke d him by cutting his ne ck, hand, a

nd armpit with a knife. Additionally , Foster testified that he defe nded himself beca use he bel i ev ed that Morris was g oing to kill him, that they strug g led for the knife, that she w as hol ding the knife ve ry close to herse lf, and that she sustained injuries from the knife during their strug g le to g et control of the knife. Reg arding those injuries, Foster rela ted t hat t he knife made c ontact with Morris’s body

more than once resulting in a cut t o her chin. When asked about some of the injuries to Morris’s head, Foster denied “sca lp[ ing] her” but s tated that “her hair could have g otten cut” during their strug g le beca

use she was holding the knife “close to her.” I n addition, F oster stated that he hit he r and tried to hold her d o wn by the neck when try ing to g et the knife, that he g ained control of the knife, and that he threw the kni fe away

. Finally , he denied assaulting her in the past but admitted that he hit her a

couple of times after

she hit him first. After Foster finish ed testify ing the first time, the district court stated that Foster “messed up [hi s] self-de fense ” beca use, acc ording to the district court, the indictment char g ed Foster “with stabbing [Morris] with a knife and cutting her hair off,” “bec ause [he had] t o admit to the conduct” to g et the instruction, and beca use Foster did not admit to committing the char g ed conduct. Following that exchang e, Foster was called to the stand ag ain. I n h i s t es t i m o ny , Foster admitted that he cut Morr is’s “hair w ith a knife” during “the strug g le.”

7Following his second round of t estimony , Foster ag ain requested an i n s t ru ct i on on

self-de fense in light of the district court’s prior explanation for why Morris was not entitled to a selfdefe nse instruction and in light of Morris’s subsequent testimony admitting to cutting Morris’s hair with a knife. I n response , the district court denied the reque st and stated that Foster ’s admission that he cut Morris’s hair was “not enoug h” beca use Foster did not testify that he cut her hair in response to her a g g ression.

After the ju ry char g e was prepa red and afte r the jury considere d the evidenc e
prese nted during the trial, the jury found F oster guilty

of the c harg ed off

ense.

DISCUSSIO N
I n his first issue on appea l, Foster contends that the district court err ed by deny ing his
reque st for a jury

instruction on self-de fense . I n his second issue on appea l, F oster arg ues that the district court err ed by failing to convene a hear ing on his motion for new trial. Given our resolution of F oster’s f

irst issue on appea l, we nee d not rea ch the se cond issue.

Self -De fense In struct ion

As indicated above, Foster contends that there was error in the j u ry ch ar g e. When revie wing an alleg ed jury -cha rg e err or, appellate courts first deter mine whether err or exis ts and then, if so, asce rtain whether the resulting harm is sufficie nt to war rant a reve rsal. See Price v. State , 457 S.W .3d 437, 440 (Tex. Crim. App. 2015); Ngo v. State , 175 S.W .3d 738, 743 (Tex. Crim. App. 2005). The amount of harm neede d for a reve rsal depends on whether a complaint reg arding “that

e r r o r w a s p r e s e r

v e d in th e tr ia l c o u

r t. ” S we a r in g e n v
. S ta te , 2 7 0 S. W. 3 d 8 0 4 , 8 0 8 ( T e x. A p p . — A u s ti n

82008, pet. ref ’d). I f the defe ndant made a timely objection, reve rsal is require d if there has been

“ some harm.” Almanza v. State , 686 S.W .2d 157, 171 (Tex. Cri m . Ap p . 1 9 8 5 ) (op. on reh’ g ).
Howeve r, if no objection was made, a reve rsal is w arr anted only if the err or resulted in “ eg reg ious harm.” See Ne al v. State , 256 S.W .3d 264, 278 (Tex. Crim. App. 2008).

During trial , Foster reque sted an instruction on self-de fense

. “Self-de fense is a j u s tification for otherwise unlawful conduct.” Torres v. State , 7 S.W .3d 712, 714 (Tex

. Ap p . — Houston [14t h Dist.] 1999, pet. ref ’d). Unde r the Pena l Code, “a pe rson is justified in using forc e
ag ainst another when and to t h e d egr ee 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 unlawful forc e.” Tex. Penal Code § 9.31(a)

. “‘Rea sonable belief’ means a belief that would be held by an ordinary and prudent man in the same c ircumstance s as the ac tor.” Id. § 1.07(a) (42).

When deter

mining whether a defe nsive instruction should have been p rovi ded,
ap p ellate courts “view the evidenc e in the light most favor able to the defe ndant’s reque sted ” instruction. Bufkin v. State , 207 S.W .3d 779, 782 (Tex. Crim. App. 2006). I n g ener al, a defe ndant is entitled to a jury instruction on a defe nsive issue if the defe nsive issue “is raised by the evidenc e,
reg ardle ss of the streng th or cre dibilit y of that evidenc e.” Farmer v. State , 411 S. W.3d 901, 906 ( T e x. Cr im

. A p p . 2 0 1 3 )

. H o w e v e r , a

n in s tr u c ti o n “ is n o t r e q

u ir e d ” if th e e v id e n c e “ d o e s n o t e s ta b li s h

t h e d efense.” W

illiams v. State , Nos. 03-14-00228—00229- CR, 2016 WL 370019, at *4 (Tex. App.—Austin J an. 27, 2016, no pet.) (mem. op., not desig nated for publication). “A defen dant’s testimony alone may be enoug h to require a self defe nse instruction.” Maxwell v. State , No. 03-06- 00473-CR, 2007 WL 2274883, at *2 (Tex. App.—Austin Aug

. 6, 2007, pet. struck) (mem. op., not

9desig nated for publication). “A trial court err s in deny ing a self defe nse instruction if there is some

evidenc e, from any source , when viewed in the light most favor able to the defe ndant, t h at wi ll support the elements of self defe nse.” Gamino v. State , 5 3 7 S

. W

. 3d 507, 510 (Tex. Crim. App. 2017). “Whether a defe nse is supported by the evidenc e is a su ff i ci en cy question revie wable on
appea l as a que stion of law.” Shaw v. State , 243 S.W .3d 647, 658 (Tex. Crim. App. 2007).

“I n deter mining whether a defe nse is thus supported, a court must rely on its own judgme nt, f

ormed in the light of its own common sense and experience , as to the limit s of rational infere nce from the fac ts proven.” Id. “[W ]hen the defe nsive evidenc e mere ly neg ates the nece ssary

c u lp a b le me n ta l s ta

te , it w il l n o t s u f

f ic e to e n ti tl e th e d e f

e n d a n t to a d e f e n s iv e in s tr

u c ti o n . ” I d

. a t 6 5 9

.

“ Ra th e r , a d e f e n s iv e in s tr

u c ti o n i s o n l y a

p p ro p ri a t e w h e n t h e d e f e n d a n t’ s d e f e n s iv e e v id e n c e e s s e n ti a ll y admits to ever

y element of the offe nse includ i n g the culpable mental state, but interposes the ju s ti f ic a ti o n to e xc u s e th e o th e r

w is e c r im in a l c o n d

u c t. ” I d

. ; s e e a ls o J

u a r e z v
. S ta te , 3 0 8 S. W. 3 d 3 9 8 , 4 0 4 (T ex . Crim. App. 2010) (explaining that doctrine of confe ssion and avoidanc e “re quires an admission to t h e conduct, which includes both the act or omission and the requisite mental state”)

. Howeve r, “[a]dmi tting to the conduct does not nece ssarily mean admitting to ever y element of the offe nse.” Gamino , 537 S.W .3d at 512. “F or example, a defe ndant” can essentially admit to the commission of murder but still deny “an intent to kill.” Id. Viewing the evidence in the l ight most favor able to Foster ’s r eq u es t ed ins truction, evidenc e was prese nted during the trial indicating that Morris had phy sically tackled Foster on the day befor e the alleg ed offe nse; that Morris initiated an assault on the day in question by using a knife

to cut Foster on his n ec k , h and, and armpit; and that Morris expressed conce rn that she might be

10char g ed for the injuries that she inflicted on Foster

. I n ad d i t i o n , p hotogr aphs wer e admitted into

evidenc e showing that Foster had a lace ration on his neck on the night in question and showing that
Foster had a scar near his armpit. Fur thermore , Foster t es t i fi ed that he believed that Morris was
g oing to try and kill him and decide d to try to take the knife from Morris by wre stling it awa y from her. Additionally , Foster admitted that as a result of that strug g le, Morris sustained cuts to various parts of he r body

.

I n its brief, the State asser ts that the evidenc e summari z ed above is insufficient to have war rante d a self-de fense instruction beca use Foster “did not admit to scalping ” Morris, which the State urg es Foster was require d to do in order to be entitled to an instruction. As support for this proposition, the State notes that Foster was charg ed with agg rava ted assault, which r equire s proof of ser i o u s b o dily injury , see Tex. Penal Code § 22.02 (providing that person commits ag g rava ted assault by committing assault that “ca uses serious bodily injury to another ”), and urg es that “the only injury that qualified a s ‘serious bodily injury ’” based on testimony g iven at trial “wa s an injury on
t h e back of [Morris] ’s head wher e someone sliced off a larg e portion of her scalp,” see also id. § 1.07(a) (46) (def

ining “‘[s]erious bodily injury ’” as “bodily injury that cre ates a substantial risk of death or that cause s death, serious perma nent disfigur ement, or protrac ted loss or impairment of the function of a

ny bodily member or

org an”)

. 4

As support for these arg

uments, the State primarily relies on two prior opinions fr om this 4 Court. See Guzman v. State , No. 03-13-00131- CR, 2015 WL 2400238 (Tex. App.—Austin May 13, 2015, pet. ref

’d) (mem. op., not desig nated for publication); Maxwell v. State , No. 03-06-00473- CR, 2007 WL 2274883 (Tex. App.—Austin Aug

. 6, 2007, pet. struck) (mem. op., not desig nated for publication). I n both of those case s, the defe ndants admitted to some conduct, but they both denied that their actions injured t he allege d victims. See Guzman , 2015 W L 2 4 0 0 2 38, at *11 (obser ving that “althoug h appellant admitted that he st rug g led wit h Gay for the g un, he did not adm i t t h at he 11As an initial matter, we note that the indictment did not alleg e that Foster cause d an

injury to Morris’s scalp; rathe r, the indictment asser ted alterna tive means in which Foster alleg edly committed ag g rava ted assault, including cutting Morris with a knife. Moreove r, as descr ibed above,
F o s te r a d mi tt e d th a t a s a r e s u lt o f h is s tr

u g g le to g e t th e k

n if e a w a y f r o m M o r r is , M o r r is s u s ta in e d c u ts from the knife, including cuts to her chin and to “her hair.” Acc ording ly , althoug h his testimony is inconsistent, Foster admitted to the criminal conduct alleg ed in the indictment of cutting Morris with

a knife and arg uably admitted to causing an injury to her scalp. Cf. Miller v. State , 312 S.W .3d 209,
213 (Tex. App.—Houston [14t h Dist.] 2010, pet. ref ’d) (explaining that deter

mination reg ar d i n g whether injury constitutes serious bodily injury is “a que stion of fac t for the jury to decide” ).
Moreove r, assuming for the sake of arg ument that Foster did not admit to causing the injury to Morris’s scalp that serve d as the focus for much of the testimony prese nted at trial, that would not compel a conclusion that Foster was not en t i t l ed t o a self-de fense instruction in the circ umstances prese nt here , particula rly where Foster did admit, consistent with the char g es
p re s en t ed i n t h e indictment, that his actions resulted in Morris being cut with a knife. On the

co ntrary , the court of criminal appea ls has indicated that a defe ndant is “‘not require d to conced e the State’s version of the events’ in order to be entitled to a self defe nse instruction.” See Gamino ,

committed the a s s a

u lt iv e c o n d

u c t a lle g ed” beca

use he “re peate dly denied ever hitting or kicking Gay , adama ntly maintained that he did not cause her injuries, asser ted that the injuries wer e self-inflicte d by Gay , and sug g ested that the injuries wer e cause d by other objects (such as the mailbox es) during thei r s t ru gg le over the g un”); Maxwell , 2007 WL 2274883, at *2 (noting that “althoug h Maxwell admitted that he strug g led for a g un, he did not admit tha t he fired the g un or that he f ired the shot that killed Ramirez”). I n contra st, in this case , althoug h his testimony was inconsistent, Foster did admit that his actions resulted in Morris being cut multipl e times with a knife when he strug g led with Morris in or der to take the knife a way from her , and the indictment in this case alleg ed that Foster cut Morris with a knife

. 12537 S .W.3d at 512 (quoting Gamino v. State , 480 S.W .3d 80, 88 (Tex. App.—For t Worth 2015), aff’d , 537 S.W .3d 507). Moreove r, opinions by our sister courts of appea ls have also indicated that if a defe ndant admits to using forc e ag ainst an alleg ed v i cti m, as provided under the self-de fense provision of t he P enal Code, see Tex. Penal Code § 9.31(a ), he should not “be denied the defe nse simply beca

use he ref used t o admit to using the ty pe of forc e al l eged by the S tate,” see Holloman
v. State , 948 S.W .2d 349, 352 (Tex. App.—Amar illo 1997, no pet.) (c ommenting that “ [i ]t would be nonsensica l to prohibit t he defenda nt from claiming self-defe nse” if he admitt ed to using f orce in manner differ ent from t hat alleg ed in indictment); see also Hubbard v. State , 133 S.W .3d 797,
801-02 (Tex. App.—Texarkana 2004, pet. ref ’d) (stating that “eve n if a defe ndant denies the specific alleg ations in the indictment, he or she is not nece ssarily prec luded from raising defe nsive issues as long as he or she sufficie ntly admits conduct underly ing the offe nse and provides evidenc e justify ing

a defe nsive instruction”); Torres , 7 S.W .3d at 716 (dete rmining that defe ndant raised issue of selfd ef ense even though he denied “intentionally and knowing ly causing bodily injury to” his wife beca use he admitted “to g rabbing his wife by her hair, possibly hitting her in the fac e . . . , strug g ling with her, a

nd pushing he r aw ay ”).
I n light of the prec eding and g iven the standard by which we are require d to r eview this ty pe of alleg e d ju

r y - c h a r g e err or, we conclude that evidenc e was prese nted that Foster rea sonably believed that his use of forc e was immediately nece ssary to protec t himself ag ainst Morris’s use of unlawful forc e and conclude that the district court err ed by not submitt ing a self-de fense instruction. Cf. Alonzo v. State , 353 S.W .3d 778, 780, 783 (Tex. Crim. App. 2011) (dete rmining that testimony from defe ndant that victim “attac ked him with

. . . a metal object, that the two eng ag ed in a strug g le,”

13that victim g rabbe d spike, that victim attacke d defe ndant with spike, that they strug g led for control

of spike, and that next thing def en d an t k n ew wa s that victim had “a hole in his chest” that “must have happene d during the strug g le” when they “we re so close fig hting” was sufficie nt “to raise the issue of self-de fense ”); VanBrack le v. State , 179 S.W .3d 708, 714 (Tex. App.—Austin 2005, no pe t. ) (noting that “[w]hether the events in question actua lly transp i red in the manner descr ibed by the defe nsive testimony and whether appellant’s conduct was reasona ble under the circumstan ce s are fac t issues to be determined by a jury ”). Having deter

mined that there was error in the j ury char g e, we must now determine whether Foster was harme d by the err or. As set out above, Foster ’s reque st f or the instruction w as denied by the district c ourt, and we, acc ording ly , assess whether Foster suffe red some harm by the omission. See Jiminez v. State , 953 S.W .2d 293, 299 (Tex. App.—Austin 1997, pet. ref ’d). I n this ty pe of analy sis, review i n g co u rt s “conside r: (1) the jury char g e as a whole, (2) the arg uments of counsel, (3) the entirety of the evidenc e, and (4) other rele vant fac tors prese nt in the rec ord.” Ree ves

v. State , 420 S.W .3d 812, 816 (Tex. Crim. App. 2013). Although the standard is less stringe nt than the analy sis perf

ormed when an objection is not made, the revie wing court must still “find that the defe ndant ‘suffe red some actua l, rathe r than mere ly theore tical, harm from the err or.’” Id. (quoting
W arner v. State , 245 S.W .3d 458, 462 (T ex . Crim. App. 2008)). I f t here has been an objection, a

reve rsal is war

rante d when the err or is “ca lculated to injure the rig hts of the defe ndant.” Id. (quoting Almanza , 686 S.W .2d at 171). “ I n other wor ds, a prope rly prese rved e rror

will require r ever sal as long a s the err or is not harmless.” Gamino , 480 S.W .3d at 90.

14M o r e o v e r , w e n o te th a t th e a b s e n c e o f a c o n f

e s s io n-and- avoidanc e - d e f e n s e in s tr u c ti o n “i s generally harmful beca use its omission leave s the jury without a vehicle by which to acq u i t a defe ndant who has a dmitted to all the elements of the offe nse.” Cornet v. Stat e , 417 S.W .3d 446,
451 (Tex. Crim. App. 2013); see also id. (stating that “[i] n g ener al, when there is a si ng le offense tried before a jury , it is impossibl e to deter mine how a jury would have weig hed the cre dibilit y of

t h e evidence on a defe nsive issue, and, there fore , appellate courts have reve rsed conviction s i n order to permit the jury to decide whether it believes the defe nsive evidenc e”)

. I n addition, we note that if the issue of self-de fense is raised by the evidenc e, the State has the burden of proving “bey ond

a rea sonable doubt that the defe ndant did not act in self-de fense .” VanBrack le , 179 S.W .3d at 717 (citing Tex. Penal Code § 2.03(d))

. I n other words, “[h] ad the jury in thi s ca u s e been proper ly instructed, it neede d only to have a rea sonable doubt as to whether [Foster]’s actions wer e justified by self-de fense to rende r an a cquittal.” Id.

Turning to the first fac tor, the district court denied Foster ’s reque st for an instruction

on self-de fense

. As a result, the jury was not g iven the opportunity to consider whether the evidenc e
reg arding Foster ’s alleg ed use of f orce could be leg ally

justified as self-de fense and had no option of acquitting Foster of the char g es in light of his admissions. See Dugar v. State , 464 S.W .3d 811,
8 2 2 ( T e x. A

p p . — H o u s to n [1 4 th D is t. ] 2 0 1 5 , p e t. r e f ’ d ) ( e xp la in in g th a

t w h e n s e lf

- d e f e n s e “ in s tr

u c ti o n

was taken awa

y from the jury , appellant was left without his only defe nsive theory , making his conviction a virtual inevitability ”). Acc ording ly , this fac tor weig hs in favor of a deter mination that
Foster was ha rmed by the er ror. Reg arding the parties’ arg uments, Foster discussed self-de fense during his ope ning and closing statements. I n particula r, he asser

ted during his opening statement that the ev i d ence 15would show that Morris wa s the ag g ressor, that Morris assaulted Foster with a knife fir st, and that

Fo s t er fo u g ht back to “prote ct his life,” and Foster also rela ted that the jury should consider h i s “evide nce of self-de fense ” when making their deter minatio n . I n h is closing arg uments, Foster attacke d the victim’s cre dibilit y and urg ed that the State had not proved its case bey ond a rea sonable doubt, but Foster also noted that there was no self-de fense instruction in the jury char g e and that he could not arg ue self-de fense in this case . Moreove r, the State in its closing ref ere nced the portions

o f F o s te r ’ s te s ti mo n y in w h ic h h e a d mi tt e d th a t h is a c ti o n s r e s u lt e d in M o r r is b e in g c u t. A c c o r d in g ly , this fac tor would seem to weig h in favor of a deter mination that Foster was harme d by the absenc e of a se lf-def

ense instruc tion in the jury char g e. Turning to other portions of the r ecor d, we note tha t during voir dire, the State and
Foster both emphasized self-de fense

. I n particula r, the State listed the elements of the defe nse and
p ro vided examples of when self-de fense might and might not be war rante d. Additionally , Foster focuse d on self-de fense and extensively questioned the panelists about whether they could enter tain

a s el f- d ef en s e instruction when the defe ndant is a man and when the alleg ed victim is a woman. Fur ther, the district court explained during voir dire what the elements of self-de fense are and stated that if the elements wer e met, then there would be an instruction for that defe nse in the jury char g e. L ater , the district court went throug h the elements ag ain afte r display ing the statutory provision for the jury panelists to examine, questioned the panel about whether they thought that “a man can’ t ever have a self-de fense claim ag ainst a woman,” and discussed what ty pes of forc e would be considere d

a rea sonable response to an attack. Given the focus on self-de fense and in light of the district court’s
statement t hat an instruction would only be provided i f t h e ev idence war rante d an ins truction, we

16believe that this fa ctor weig hs in favor of a deter mination that Foster was harme d by the omission. Cf. Johnson v. State , 271 S.W .3d 359, 368 (Tex. App.—B eaumont 2008, pet. ref ’d) (noting as part of har m analy sis that defenda

nt questioned jury

panel on de fensive the ory ). Reg arding the evidenc e prese nted at trial, we note, as summarized above, that Foster admitted in his testimony to using forc e ag ainst Morris that re s u l t ed i n Morris being injured and

asser ted that he was defe nding himself ag ainst Morris’s alleg ed assault, and photogr aphs of injuries that Foster purportedly sustained on the ni g ht in question wer e admitt ed int o evidenc e and shown

t o the j ury . I n addition, Detec tive Ander son testified t hat Foster m ay have had defensive wo u n d s
to his h an d s an d t h at M orris expressed conce rn that she might be char g ed for her conduct on the night in que stion. Moreove r, on the rec ording s of Foster ’s phone c onversa tions, Foster stated that Morris held the knife to his throat.

Unquestionably , other evidenc e was prese n ted during trial indicating that Morris did not assault Foster on the night in question and signific antly undermining Foster ’s claim of selfdefe nse. Howeve r, in light of the evidenc e raising the issue of self-de fense , of our resolution of the fac tors discussed above, and of the g overning ca s e l aw i ndicating that the denial of a defe nsive instruction in case s involving a single offe n s e i s gener ally harmful, see Cornet , 417 S.W .3d at 451, we cannot co n cl u d e that the absenc e of a self-de fense instruction was harmless under the circ umstances pr esent he re.

For all of these rea sons, we conclude that the district court err ed by deny ing Foster ’s
reque st for a self-de fense instruction and that the failure to provide that instruction resulted in some harm to Foster

. Cf. Johnson , 271 S.W .3d at 368-69 (dete rmining that defe ndant was harme d by

17absenc e of defe nsive instruction where defe ndant admitted that she stabbed victim “to stop him

from ju m p i n g o n h er or hitting her” but wher e “jury was not instructed to consider” defe nsive theory , which preve nted jury from cons i d er i n g acquitting defe ndant “by rea son of her immediate need to defe nd herse lf”); VanBrack le , 179 S.W .3d at 717 (c oncluding that trial “cour t’s ref usal to instruct the jury on self-de fense cause d some harm to a ppellant” despite signific ant defic iencies in defe nsive evidenc e). A ccor dingly , we sustain F oster’s f irst issue on appea l. Having sustained Foster ’s first issue on appea l, we need not addre ss Foster ’s second issue on appea l.

CONCLUSION

Having s u s tained Foster ’s first issue on appea l, we reve rse the district court’s judgme nt of conviction and r emand f or fur ther proc eeding s consistent with this opi nion.

__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Pemberton, and B ourland
Reverse d and Remande d Filed: Jul y

24, 2018 Do Not Publish

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