Affirmed and Opinion Filed August 14, 2023 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-22-00462-CR 

TREVOR RUSSELL, Appellant 

V. 

THE STATE OF TEXAS, Appellee 

On Appeal from the 283rd Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. F-2175838-T 

MEMORANDUM OPINION 

Before Justices Partida-Kipness, Reichek, and Miskel 

Opinion by Justice Partida-Kipness 

In four issues, appellant Trevor Russell challenges his conviction for 

aggravated assault with a deadly weapon. Russell alleges the trial court erred by 

failing (1) to include an application paragraph regarding self-defense in the jury 

charge and (2) to instruct the jury the State bore the burden of disproving his claim 

of self-defense. Russell also claims his trial counsel was ineffective for failing to 

object (3) to the omission of the self-defense application paragraph in the jury charge 

and (4) to the absence of an instruction the State bore the burden of disproving 

Russell’s self-defense claim. We affirm the judgment. 
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BACKGROUND 

 Russell was charged with aggravated assault with a deadly weapon for 

shooting Vernon Woodward. Woodward testified he initially considered Russell a 

friend and would work on his car for him. He stated the men had a disagreement 

over what Woodward believed was a money-related issue. Woodward met Russell 

at Lucky’s Food Mart, a neighborhood hangout, on May 12, 2021, to try to resolve 

their issue. Woodward said he tried to talk to Russell, but Russell took a posture 

showing he wanted to fight Woodward. When he realized Russell did not want to 

discuss the issue, Woodward walked away from him and returned to his vehicle. As 

Woodward was walking, he stated he heard someone call out his name and say “look 

out.” Woodward turned and saw Russell running towards him. As he approached, 

Russell pulled out a firearm and shot Woodward in the leg. Woodward fell to the 

ground and Russell shot him eight additional times. Woodward stated he could not 

do anything to stop the shooting but just “h[eld] my hands up.” Woodward had no 

type of weapon on him when Russell shot him. Woodward testified he did have a 

pellet gun in his vehicle but never pulled it out of his car. 

Russell testified in his own defense explaining Woodward did some body 

work on Russell’s vehicle. Russell felt Woodward did not properly repair the vehicle 

and confronted Woodward when the two were at Lucky’s Food Mart. Russell stated 

the two had a verbal altercation and Woodward told him, “I’m not going to fight you 
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. . . I’m going to shoot you.” Russell believed Woodward had a rifle in his vehicle 

and stated Woodward had intent. Russell also testified he believed another man who 

worked at Lucky’s named Mark, was about to give Woodward a gun. On crossexamination, Russell stated he had a pellet gun and shot Woodward with the pellet 

gun. He explained he intended to beat Woodward to his weapon. When asked about 

the surveillance video, Russell admitted it showed him running towards Woodward 

and Woodward’s hands were extended into the air. 

The trial court included a self-defense instruction in the abstract portion of the 

jury charge but it was not included in the application portion. After requesting a selfdefense instruction, Russell did not object to the jury charge. The jury convicted 

Russell of aggravated assault with a deadly weapon. He was sentenced to forty years’ 

imprisonment. This appeal followed. 

ANALYSIS 

In four issues, which we reorganized, Russell alleges the trial court erred by 

failing (1) to include an application paragraph regarding self-defense in the jury 

charge and (2) to instruct the jury the State bore the burden of disproving his claim 

of self-defense. Additionally, he argues his trial counsel was ineffective for failing 

to object (3) to the omission of the self-defense application paragraph in the jury 

charge and (4) to the absence of an instruction the State bore the burden of disproving 

Russell’s self-defense claim. 
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I. Jury Charge Error 

The purpose of the trial court’s jury charge is to instruct the jurors on the law 

applicable to the case. See TEX. CODE CRIM. PROC. art. 36.14. The charge is the 

instrument with which the jury convicts; therefore, it must be an accurate statement 

of the law and set out the essential elements of the offense. Fields v. State, ––

S.W.3d––, ––, No. 01-20-00280-CR, 2022 WL 3268525, at *3 (Tex. App.—

Houston [1st Dist.] Aug. 11, 2022, pet. ref’d). A jury charge that improperly states 

the law or the elements of an offense is erroneous. Id. 

All alleged jury-charge error must be considered on appellate review 

regardless of preservation in the trial court. Kirsch v. State, 357 S.W.3d 645, 649 

(Tex. Crim. App. 2012). Appellate review of purported error in a jury charge 

involves a two-step process. Id. First, we determine whether the jury instructions are 

erroneous. Id. Second, if error occurred, an appellate court must analyze the error 

for harm. Id. The issue of error preservation is not relevant until harm is assessed 

because the degree of harm required for reversal depends on whether error was 

preserved or not. Id. 

The failure to preserve jury-charge error is not a bar to appellate review but 

rather establishes the degree of harm necessary for reversal. Warner v. State, 245 

S.W.3d 458, 461 (Tex. Crim. App. 2008). Neither the State nor the appellant bears 

the burden on appeal to prove harm. Reeves v. State, 420 S.W.3d 812, 816 (Tex. 
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Crim. App. 2013). Harm is assessed in light of the entire jury charge, the state of the 

evidence, including contested issues and the weight of the probative evidence, the 

parties’ arguments, and all other relevant information in the record. Alcoser v. State, 

663 S.W.3d 160, 165 (Tex. Crim. App. 2022); Cosio v. State, 353 S.W.3d 766, 777 

(Tex. Crim. App. 2011). 

 If the “defendant never presents a proposed jury instruction (or fails to object 

to the lack of one), any potential error in the charge is reviewed only for ‘egregious 

harm’ under Almanza.” Oursbourn v. State, 259 S.W.3d 159, 174 (Tex. Crim. App. 

2008) (citing Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. 

on reh’g)). When an “appellant d[oes] not object to the charge, the error does not 

result in reversal ‘unless it was so egregious and created such harm that appellant 

was denied a fair trial.’” Warner, 245 S.W.3d at 461 (quoting Almanza, 686 S.W.2d 

at 171). “Errors that result in egregious harm are those that affect the ‘very basis of 

the case,’ ‘deprive the defendant of a valuable right,’ or ‘vitally affect a defensive 

theory.’” Id. at 461–62 (quoting Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. 

App. 1996)). To establish egregious harm, the “appellant must have suffered actual, 

rather than theoretical, harm.” Id. at 461. 

 A proper jury charge consists of an abstract of the law and the application 

paragraphs. Smith v. State, No. 01-22-00471-CR, 2023 WL 4239875, at *6 (Tex. 

App.—Houston [1st Dist.] June 29, 2023, no pet.). The abstract paragraphs serve as 

a glossary to help the jury understand concepts and terms used in the application 
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paragraphs of the charge. Id. The application paragraphs then apply the “pertinent 

penal law, abstract definitions, and general legal principles to the particular facts and 

the indictment allegations.” Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 

2012). 

A defendant is entitled to a self-defense instruction when a defensive issue is 

raised by the evidence, “whether that evidence is strong or weak, unimpeached or 

contradicted, and regardless of what the trial court may think about the credibility of 

the defense.” Gamino v. State, 537 S.W.3d 507, 510 (Tex. Crim. App. 2017). The 

defendant bears the burden of production with respect to a defense, and the issue of 

the existence of a defense is not submitted to the jury unless evidence is admitted 

supporting the defense. Barnes v. State, No. 05-22-00013-CR, 2023 WL 3964007, 

at *2 (Tex. App.—Dallas June 13, 2023, no pet. h.) (mem. op., not designated for 

publication). To merit a self-defense instruction, an appellant must have adduced 

some evidence of his state of mind at the time he used the force at issue. Barnes, 

2023 WL 3964007, at *3; Vega v. State, No. 05-16-00882-CR, 2017 WL 1245423, 

at *2 (Tex. App.—Dallas Apr. 5, 2017, no pet.) (mem. op., not designated for 

publication). 

Russell’s jury charge contained the following: 

Application Paragraph 

Now, considering all the law contained in the Court’s charge, if 

you believe from the evidence beyond a reasonable doubt that the 

Defendant, Trevor Russell, on or about the 19th day of May, 2021, in 
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the County of Dallas and said State, did unlawfully then and there 

intentionally or knowingly or recklessly cause bodily injury to Vernon 

Woodward, by shooting Vernon Woodward with a firearm, and said 

defendant did use and exhibit a deadly weapon to wit; a firearm, during 

the commission of the assault, then you will find the defendant guilty 

of aggravated assault with a deadly weapon. 

If you believe the defendant is not guilty of any offense, or have 

reasonable doubt thereof, then you will acquit the defendant and say by 

your verdict “not guilty.” 

Self-Defense 

‘Reasonable belief’ means a belief that would be held by an ordinary 

and prudent person in the same circumstances as the defendant. 

A person is justified in using force against another when and to the 

degree he reasonably believes the force is immediately necessary to 

protect himself against the other’s use or attempted use of unlawful 

force. 

The use of force against another is not justified in response to verbal 

provocation alone. 

The use of force against another is not justified if the actor provoked 

the other’s use or attempted use of unlawful force, unless: 

(A) the actor abandons the encounter, or clearly communicates 

to the other his intent to do so reasonably believing he cannot 

safely abandon the encounter; and 

(B) the other nevertheless continues or attempts to use 

unlawful force against the actor. 

A person is justified in using deadly force against another: 

(1) if the actor would be justified in using force against 

another; and 
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(2) when and to the degree the actor reasonably believes the 

deadly force is immediately necessary to protect himself against 

the other’s use of unlawful deadly force. 

A person who has the right to be present at the location where the deadly 

force is used, who has not provoked the person against whom the deadly 

force is used, and who is not engaged in criminal activity at the time the 

deadly force is used is not required to retreat before using deadly force. 

 Russell requested a self-defense instruction but did not object to the jury 

charge as it was written. However, the jury charge contains error because the 

requested instruction was only contained in the section titled “Self-Defense” without 

being included in the application portion of the jury charge. Since Russell did not 

object to the jury charge as written, the factors must show he suffered egregious 

harm by the jury charge. We look to the following factors to determine if Russell 

suffered egregious harm: the entire jury charge, the state of the evidence, including 

contested issues and the weight of the probative evidence, the parties’ arguments, 

and all other relevant information in the record. Alcoser, 663 S.W.3d at 165. 

In looking at the jury charge as a whole, we “ask whether anything in the 

balance of the jury charge either exacerbated or ameliorated th[e] error.” French v. 

State, 563 S.W.3d 228, 236 (Tex. Crim. App. 2018). The jury charge contained a 

section which defined the terms necessary to the charge, an application paragraph, a 

section on self-defense, and general evidentiary instructions which also explained 

the State’s burden in criminal cases. There was no explanation in the application 

paragraph regarding what should occur if the jury found Russell acted in self-
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defense. This does weigh slightly in favor of egregious harm. However, the 

explanation of the self-defense doctrine immediately followed the application 

paragraph. We could assume the jury would read the two sections together, and if it 

had believed Russell’s self-defense claim, would have found him not guilty of the 

charged offense. Russell’s testimony did not support a valid self-defense claim, the 

jury did not believe he acted in self-defense, and the “presumption is dependent on 

the evidence that was adduced at trial.” Villarreal v. State, 453 S.W.3d 429, 435–36 

(Tex. Crim. App. 2015). 

The state of the evidence presented at trial also did not support Russell’s 

theory of self-defense. To be entitled to a self-defense instruction, Russell must have 

believed deadly force was immediately necessary. See TEX. PENAL CODE § 9.32. 

Although Russell testified and stated he felt Woodward threatened him, the evidence 

does not support this assessment. Woodward testified he was not armed, and no one 

was bringing him a firearm to shoot at Russell. The surveillance video admitted into 

evidence supports Woodward’s testimony. It shows as Woodward walks away, 

Russell approached and shot him. Russell continued to shoot Woodward as he laid 

on the ground with his empty hands raised. Because Russell’s claim of self-defense 

is not supported by the record, the inclusion of the self-defense section in the jury 

charge was harmless and weighs against a finding of egregious harm. See Villarreal, 

453 S.W.3d at 439. 
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In their arguments to the jury, both sides discussed self-defense and its 

applicability to this offense. The State argued Russell acted intentionally in shooting 

Woodward and explained how his story of what occurred was not plausible based 

on the evidence presented. Russell, on the other hand, reiterated the evidence he 

believed was applicable to a self-defense justification. The fact both sides argued 

according to their beliefs regarding the applicability of self-defense weighs against 

a finding of egregious harm. 

Other relevant information in the record shows the trial court explained to the 

jury it was the State’s burden to prove Russell was guilty beyond a reasonable doubt 

and Russell did not have any burden in the case at all. The trial court also told the 

jury it could send out notes if there were any questions or clarification needed 

regarding the jury charge. No notes were sent out during jury deliberations. See 

Gelinas v. State, 398 S.W.3d 703, 709 (Tex. Crim. App. 2013) (no showing of 

egregious harm when there were no jury notes contained in the record showing 

confusion). The lack of additional information showing harm weighs against a 

finding of egregious harm. 

Russell has not made a showing he was egregiously harmed because based on 

the evidence in the record, he was not entitled to a self-defense instruction. See 

Villarreal, 453 S.W.3d at 436. After considering the four factors necessary to 

establish egregious harm, we find Russell has failed to show he was actually harmed 
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by the omission of self-defense in the application paragraph of the jury charge. His 

first issue is overruled. 

 In his second issue, Russell also claims the trial court erred by failing to 

include penal code section 2.03(d) in the jury charge. Section 2.03(d) states “if the 

issue of the existence of a defense is submitted to the jury, the court shall charge that 

a reasonable doubt on the issue requires that the defendant be acquitted.” TEX. PENAL 

CODE § 2.03(d). Russell’s jury charge stated, “In all criminal cases, the burden of 

proof is on the State. All persons are presumed to be innocent, and no person may 

be convicted of an offense unless each element of the offense is proven beyond a 

reasonable doubt.” 

 In Goodson v. State, as in this case, the charge (1) instructed the jury the 

burden of proof beyond a reasonable doubt was on the State and (2) contained 

instructions on the presumption of innocence. See No. 05-15-00143-CR, 2017 WL 

1360193, at *11 (Tex. App. Apr. 12, 2017). Accordingly, (1) “when the charge is 

viewed as a whole, it placed the burden on the State to show beyond a reasonable 

doubt that appellant was not acting in self-defense” and (2) therefore, “[n]o error is 

shown.” Luck v. State, 588 S.W.2d 371, 375 (Tex. Crim. App. 1979) (rejecting 

appellant's complaint the jury charge “was erroneous in that it did not inform the 

jury that the State had to disprove beyond a reasonable doubt the issue of selfdefense”); see also Gonzalez v. State, No. 05–13–00630–CR, 2014 WL 3736208, at 

*13–14 Tex. App.–Dallas July 14, 2014, no pet.) (not designated for publication) 
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(concluding “the trial court did not err by submitting the jury charge without 

including an instruction that the State was required to disprove the issue of selfdefense beyond a reasonable doubt,” where charge met requirements of Luck and 

penal code section 2.03(d)) (internal citations omitted). Additionally, Russell did not 

suffer harm because he was not entitled to a self-defense instruction and was not 

egregiously harmed by the jury charge as written. We overrule his second issue. 

II. Ineffective Assistance of Counsel 

In his third and fourth issue, Russell argues his trial counsel was ineffective. 

He states “no competent lawyer would have failed to object to the omission of the 

application paragraph for self-defense” or “the omission of the reasonable doubt 

instruction for self-defense.” 

A successful ineffective assistance claim depends on (1) deficient 

performance and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 694 (1984). 

In determining whether counsel’s representation was deficient, we indulge a strong 

presumption counsel’s conduct falls within a wide range of reasonable professional 

assistance, including the possibility counsel’s actions were strategic. Id. at 689. We 

focus on the totality of the representation afforded and not on individual alleged 

errors. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010). We consider 

the adequacy of assistance as viewed at the time of trial, not in hindsight. Robertson 

v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). We may not second-guess 

counsel’s strategic decisions and defense counsel’s trial strategy cannot be 
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considered ineffective assistance of counsel simply because another attorney would 

have used a different strategy. Herrera v. State, No. 05-19-00021-CR, 2020 WL 

4435309, at *10 (Tex. App.—Dallas Aug. 3, 2020, no pet.) (mem. op., not 

designated for publication). 

 To defeat the presumption of reasonable representation, an allegation of 

ineffectiveness must be firmly founded in the record and the record must 

affirmatively demonstrate the alleged ineffectiveness. Prine v. State, 537 S.W.3d 

113, 117 (Tex. Crim. App. 2017); Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. 

App. 2001). A silent record provides no explanation for counsel’s actions and will 

not overcome the strong presumption of reasonable assistance. Rylander v. State, 

101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003); Thompson v. State, 9 S.W.3d 808, 

812 (Tex. Crim. App. 1999). Moreover, “trial counsel should ordinarily be afforded 

an opportunity to explain his actions before being denounced as ineffective.” 

Rylander, 101 S.W.3d at 111. Where trial counsel is not given an opportunity to 

explain his actions, counsel should only be found ineffective if counsel’s conduct 

was “so outrageous that no competent attorney would have engaged in it.” Id. at 117 

(quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). 

 Russell claims his trial counsel was ineffective because he did not object to 

the omission of self-defense in the application paragraph of the jury charge and penal 

code section 2.03(d). In his motion for new trial, he failed to raise either of these 

allegations against his trial counsel; therefore, trial counsel had not been given an 
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opportunity to respond to such claims. See Bone v. State, 77 S.W.3d 828, 835 (Tex. 

Crim. App. 2002). 

 However, we previously determined Russell was not entitled to a self-defense 

instruction based on the evidence presented at trial. Trial counsel did request a selfdefense instruction, which was included in the jury charge under the “Self-Defense” 

section. Russell’s testimony did not establish Woodward threatened him with deadly 

force at any time before Russell shot Woodward multiple times. His belief he was 

entitled to exercise self-defense was unfounded and implausible. Although the 

evidence did not support Russell’s belief in self-defense, trial counsel did pursue 

Russell’s defensive theory throughout the trial in his questioning of witnesses, 

argument to the jury, and request for the instruction. Russell has not shown how trial 

counsel’s actions were deficient based on the evidence presented. We overrule his 

third issue. 

 Russell also alleges trial counsel was ineffective by not requesting the 

inclusion of penal code section 2.03(d). However, as addressed above, the jury 

charge included an explanation regarding the State’s burden of proof and how 

Russell was presumed innocent unless all the elements of the offense were proven 

beyond a reasonable doubt. Trial counsel’s lack of request of the specific language 

of section 2.03(d) was not deficient when the appropriate language was contained in 

the jury charge. We overrule Russell’s fourth issue. 
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CONCLUSION 

 Based on the evidence presented in this record, we find Russell was not 

egregiously harmed by the jury charge as presented and his trial counsel was not 

ineffective. We affirm the trial court’s judgment. 

Do Not Publish 

TEX. R. APP. P. 47.2(b). 

220543F.U05 

 

/Robbie Partida-Kipness/

ROBBIE PARTIDA-KIPNESS 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

TREVOR RUSSELL, Appellant 

No. 05-22-00462-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the 283rd Judicial 

District Court, Dallas County, Texas 

Trial Court Cause No. F-2175838-T. 

Opinion delivered by Justice PartidaKipness. Justices Reichek and Miskel 

participating. 

 Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED. 

Judgment entered this 14th day of August 2023.