Affirmed as Modified and Memorandum Opinion filed December 18, 2014.

In The

Fourteenth Court of Appeals

NO. 14-13-01088-CR

RUFUS LEE GILDER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Criminal Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 1829432

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

Appellant Rufus Lee Gilder appeals his conviction for assault challenging 

the trial court’s jury instruction on self-defense and the amount of court costs 

assessed in the judgment. Finding the trial court’s instruction sufficient, but finding 

the amount of court costs assessed in the judgment differs from the amount listed 

in the bill of costs, we modify the trial court’s judgment to reflect court costs of 

$332, and affirm the judgment as modified.
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I. BACKGROUND

The complainant, Blackmon Powell, testified that on the date of the offense 

he went to the fish market to pick up food, which has been his routine for 

approximately fifteen years. Powell, a truck driver, had previously worked for 

appellant. While waiting for his food, Powell saw appellant at the fish market and 

they had a conversation about truck driving that Powell described as “shop talk.”

Approximately fifteen minutes later Powell’s food was ready and he left the 

fish market. Appellant followed Powell to his vehicle. Powell described his 

conversation with appellant as follows: “Yeah, I think he said something about my 

truck was raggedy and I didn’t have anything. And I told him, you don’t have 

anything, either. I say, I heard that house that you were living in up there in 

Atascocita wasn’t yours, you were leasing the house.” Powell placed his food in 

the car and got into the driver’s seat. Appellant said to Powell: “You don’t have 

nothing either. Said, Look at that slick tire on this van.” After making that 

statement, appellant hit Powell in the face, breaking his nose. Powell stepped out 

of the van and asked appellant what he was doing. Appellant responded by running 

toward Powell and smashing him against the side of Powell’s van.

Appellant’s mother came out of the fish market and told appellant to stop.

Rather than stop, appellant hit Powell in the face again. Appellant walked to his 

pickup truck and retrieved a stick, which Powell described as a walking cane. 

Appellant hit Powell in the head with the cane, said “This is for Ms. Brenda,” and 

“If you say another word I’ll kill you.”1Powell did not fight back, but attempted to 

hold appellant in a “bear hug” hoping he would stop. After threatening to kill 

Powell, appellant walked back to his truck, placed the cane in the back, and drove 

 

1 At the time of trial Powell was in the midst of a divorce from Brenda Devaughn, who 

later testified for appellant.
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away.

Powell used his mobile phone to call 911. Appellant’s mother asked who 

Powell was calling. When Powell told her he was calling the police, she responded, 

“You can call if you want to. . . . I’m going to tell them that you hit him first.”

Juan Garcia, one of the responding officers, testified that when he arrived he 

took a statement from Powell and attempted to talk with appellant’s mother. 

Appellant’s mother was uncooperative. There were no other witnesses in the area.

An investigator followed up with appellant’s mother who told him that Powell hit 

appellant first. The investigator was unable to locate any other witnesses to the 

assault.

Martie Brooks-Gilder, appellant’s mother, works part-time as a cook at the 

fish market. She testified that Powell came into the fish market cursing and 

taunting appellant. When Brooks-Gilder heard Powell say he was “going to fuck 

him up,” she walked out of the kitchen to see what was happening. Brooks-Gilder 

testified that Powell hit appellant before appellant hit Powell, and the two men “got 

into a tussle.” She admitted she might not have seen the beginning of the fight 

because she had to ask someone to watch the fish that she had been cooking. 

Brooks-Gilder said she did not see appellant get a stick out of his truck and hit 

appellant with it. Two other witnesses testified that Powell was the aggressor.

At the conclusion of guilt-innocence there were no objections to the court’s 

charge. The record reflects that appellant did not request a self-defense charge, but

the trial court gave the self-defense charge sua sponte. The jury found appellant 

guilty of assault and the court assessed appellant’s punishment at confinement for 

100 days in the Harris County Jail.
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II. ANALYSIS

A. There was no error in the trial court’s jury charge.

In his first issue, appellant argues that the trial court erred in submitting a 

jury charge that failed to instruct the jury that the State carried the burden of 

disproving self-defense, and failed to specifically instruct the jury to acquit if they 

held a reasonable doubt on self-defense. The State responds that the charge 

properly instructed the jury on its burden and instructed the jury to find appellant 

not guilty if it held a reasonable doubt on self-defense. We conclude that no error 

existed in the jury charge.

1. Standard of review

We review a claim of jury charge error using the two-step procedure set out 

in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). See Barrios v. 

State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). We first determine whether 

there is error in the charge. Barrios, 283 S.W.3d at 350 (citing Ngo v. State, 175 

S.W.3d 738, 743 (Tex. Crim. App. 2005)). Then, if error is found, we analyze that 

error for harm. Celis v. State, 416 S.W.3d 419, 423 (Tex. Crim. App. 2013) (citing 

Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012)).

2. The trial court’s jury charge

The court’s charge instructed the jury:

Upon the law of self-defense, you are instructed that 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 person’s use or attempted use of unlawful 

force. A person is under no obligation to retreat to avoid the necessity 

of repelling or defending, with force less than deadly force, against an 

attack or threatened attack.
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* * * * *

Therefore, if you find and believe from the evidence beyond a 

reasonable doubt that on the occasion in question the defendant, 

RUFUS LEE GILDER, did assault BLACKMON POWELL, BY 

STRIKING HIM WITH HIS HAND, as alleged, but you further find 

from the evidence, or you have a reasonable doubt thereof, that 

viewed from the standpoint of the defendant at the time, from the

words or conduct, or both, it reasonably appeared to the defendant that 

his person was in danger of bodily injury and there was created in his 

mind a reasonable expectation or fear of bodily injury from the use of 

unlawful force at the hands of BLACKMON POWELL and that 

acting under such apprehension and reasonably believing that the use 

of force on his part was immediately necessary to protect himself 

against BLACKMON POWELL’S use or attempted use of unlawful 

force, the defendant STRUCK BLACKMON POWELL WITH HIS 

HAND, to defend himself,

OR

if you have a reasonable doubt as to whether or not the defendant was 

acting in self-defense on said occasion and under the circumstances,

then you should give the defendant the benefit of that doubt and say 

by your verdict not guilty.

3. The charge properly instructed the jury on the State’s burden of 

proof.

Appellant argues that the self-defense instruction failed to instruct the jury 

that the State carried the burden of proving appellant did not act in self-defense.

Appellant argues that the charge could be understood to mean that appellant bore 

the burden of proving self-defense beyond a reasonable doubt.

A defendant bears the burden of producing some evidence in support of a 

claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App.

2003); Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). Once the 

defendant produces such evidence, the State bears the burden of persuasion to 

disprove the raised defense. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 

913–14. The burden of persuasion is not one that requires the production of 
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evidence; rather, it requires only that the State prove its case beyond a reasonable 

doubt. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913. 

Self-defense is a defense under section 2.03 of the Texas Penal Code. See

Tex. Penal Code § 2.03; Saxton, 804 S.W.2d at 912 n. 5. “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). In examining the charge for possible error, reviewing courts must 

examine the charge as a whole instead of a series of isolated and unrelated 

statements. Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012).

The abstract portion of the charge properly instructed the jury that, “The 

prosecution has the burden of proving the defendant guilty and it must do so by 

proving each and every element of the offense charged beyond a reasonable doubt 

and if it fails to do so, you must acquit the defendant.” Additionally, the

application portion of the charge properly instructed the jury to find appellant not 

guilty if there was a reasonable doubt as to whether appellant was acting in selfdefense. Specifically, the court instructed the jury, “if you have a reasonable doubt 

as to whether or not the defendant was acting in self-defense on said occasion and 

under the circumstances, then you should give the defendant the benefit of that 

doubt and say by your verdict not guilty.” 

Read as a whole, the jury charge properly placed the burden of proof on the 

State in the abstract portion, and instructed the jury in the application portion to 

acquit the defendant if the State did not meet that burden. The trial court did not 

commit error in the charge with regard to the State’s burden of proof. See Luck v. 

State, 588 S.W.2d 371, 375 (Tex. Crim. App. 1979) (viewing the charge as a 

whole, charge placed the burden on the State to show beyond a reasonable doubt 

that appellant was not acting in self-defense).
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4. The charge properly instructed the jury to acquit if they held a 

reasonable doubt regarding appellant’s use of self-defense.

Appellant argues that the charge failed to instruct the jury that if it has a 

reasonable doubt on the issue of self-defense the defendant must be acquitted.

Specifically, appellant argues the “‘then you will acquit the defendant’ language 

was omitted between the words ‘to defend himself,’ at the end of the first 

paragraph and before the word ‘OR.’” 

A review of the court’s charge shows that, read logically, the paragraph 

following the word “OR” is a continuation of the sentence preceding the word 

“OR.” While the preceding sentence is lengthy, read logically, a jury could 

understand that the phrase, “say by your verdict not guilty,” applies to the 

instructions before and after the word “OR.”

Appellant cites Barrera v. State, 982 S.W.2d 415, 416 (Tex. Crim. App. 

1998), for the proposition that it is error for the trial court to fail to instruct the jury 

to acquit appellant if it found in favor of the self-defense charge. In Barrera, the 

trial court included the self-defense instruction in the abstract portion of the charge, 

but omitted it in the application section. Id. The Court of Criminal Appeals 

determined it was error for the court to fail to instruct the jury in the application 

paragraph to acquit if they held a reasonable doubt on self-defense. Id.

This case is distinguishable from Barrera in that the trial court properly 

included language in the application paragraph that required the jury to find 

appellant “not guilty” if it had a “reasonable doubt as to whether or not the 

defendant was acting in self-defense on said occasion and under the 

circumstances.” We cannot agree that a reasonable jury would have been confused 

or misled by the instruction. 

While the instruction in this case is sufficient, the Texas Pattern Jury Charge 
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contains a more clear charge on self-defense. See Comm. on Pattern Jury Charges, 

State Bar of Tex., Texas Criminal Pattern Jury Charges: Defenses §B14.4 (2013).2

Because we find the trial court did not abuse its discretion in submitting the charge 

on self-defense, we overrule appellant’s first issue.

B. Assessment of court costs in the judgment is modified to reflect the 

amount due on the bill of costs.

In his second issue appellant argues the court costs assessed in the judgment 

exceed the amount due on the later-issued bill of costs, and requests reformation of 

the judgment accordingly.

The trial court assessed $337 in court costs in its judgment. The sum of the 

itemized costs in the cost bill prepared after the judgment was signed is $332. We 

review the assessment of court costs on appeal to determine if there is a basis for 

the costs, not to determine whether there was sufficient evidence offered at trial to 

prove each cost. Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). 

Traditional sufficiency-of-the-evidence standards of review do not apply. Id.

We conclude that the trial court’s assessment of costs does not accurately 

reflect the amount of costs for which there is a basis in the record. An appellate 

court may reform a trial court’s judgment to accurately reflect the record when it 

has the necessary data and information to do so. Nolan v. State, 39 S.W.3d 697, 

 

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The suggested language in the Pattern Jury Charge is as follows:

If you have found that the state has proved the offense beyond a reasonable doubt, 

you must next decide whether the state has proved that the defendant’s conduct 

was not justified by self-defense.

To decide the issue of self-defense, you must determine whether the state has 

proved, beyond a reasonable doubt, one of the following:

1. The defendant did not believe his conduct was immediately necessary to 

protect himself against [name]’s use [or attempted use] of unlawful force; or 

2. The defendant’s belief was not reasonable.
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698 (Tex. App.—Houston [1st Dist.] 2001, no pet.); see also Tex. R. App. P. 

43.2(b). In accordance with the cost bill in the record, we modify the trial court’s 

judgment to reflect court costs of $332. 

III. CONCLUSION

We modify the trial court’s assessment of costs to $332 to reflect the cost 

bill contained in the record, and affirm the trial court’s judgment as modified.

/s/ Tracy Christopher

Justice

Panel consists of Justices Christopher, Donovan, and Wise.

Do Not Publish — Tex. R. App. P. 47.2(b).