Opinion filed November 3 , 2022



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 2 1

- 00 1 53

- C R

__________ JOSHUA ROBERT BELLEVILLE , Appellant V. THE STATE OF TEXAS , Appellee

On Appeal from the 385 th District Cour t Midland County , Texas Trial Court Cause N o . CR 5 4224

M E M O R A N D U M O P I N I O N Appellant, Joshua Robert Belleville, was indicted for aggravated assault with a deadly weapon, a second

- degree felony offense. See T EX

. P ENAL C ODE A NN

. § 2 2.02 (a)( 2 ) , (b) (West Supp. 2022 ). The jury found Appellant guilty as charged in the indictment , and u pon Appe llant ’s elect ion, t he trial court assessed his punishment at seven years of imprisonment in the Institutional Division of the Texas Department of Criminal Justice (TDCJ

- ID)

.2 Appellant raises two issue s on appeal

. First, Appellant argues that he was harmed when the trial court refused to submit his requested jury instruction on self

defense

. Second, Appellant asserts that the trial court erroneously assessed court

appointed attorney’s fees against him because he is indigent. We modify and affirm

. I. Factual Background On August 31, 2019, Edward Roman was playing a video game in his bedroom with his two

- year - old daughter when he heard a knock at the bedroom door

. Roman testified that Appellant

— the live

- in brother of Roman’s girlfriend

— was at the bedroom door asking Roman to transfer his clothes from the washer to the dryer in the laundry room, a small room adjacent to Roman’s bedroom. Roman testified that , earlier that morning, Appellant had b een a cting strangely by “pacing back and forth in [Appellant’s] room constantly and looking at [Roman]

. ” Evidently, Roman and Appellant had a contentious relationship

. Roman testified that, as he moved clothing from the washer to the dryer , Appellant swung the laundry room door open and punched Roman twice in the back of the head. Appellant and Roman then began fight ing in the laundry room

. A fter Roman “threw [Appellant] across the hal lway,” Appellant “got up from the ground,

. . . rushed [ Roman] with the knife , and

. . . stabbed [Roman] ” under his jawline, severing his superior thyroid artery. A fter Appellant stabbed him, Roman held Appellant’s hands to prevent Appellant from stabbing him again. Appellant’s father heard the commotion and ran to the laundry room , where Roman yelled , “he stabbed me in the neck

. ” Appellant’s father saw blood “gushing out of [Roman’s] neck ,” removed Roman’s daughter from the immediate area , and called 9

- 1

- 1. Appellant’s father testified that only Roman was bleeding at this point in the altercation. Roman testified that , after Appellant’s father left with his daughter, Roman was able to move Appellant into the bedroom , still holding onto the blade

- end of the3 kn ife while Appellant held onto the handle

. Roman testified that he got on top of Appellant and “ was fighting for [his] life.” Appellant’s father ran back to the altercation and f ound Roman on top of Appellant ; the two were fighting over the knife in the bedroom

— Roman still having the blade

- end while Appellant had control of the knife’s handle. During cross examination, Appellant’s father testified that “ [ i ] t was obvious . . . who had control of the knife and who was trying to defe nd themselves fr om the knife blade , ” which, according to Appellant’s father, indicat ed that Roman was trying to defend himself from Appellant’s use of the knife. Appellant’s father further testified that he was able to persuade Appellant and Roman to drop the knife ; he then put the knife in the kitchen sink. Appellant’s father describ ed the knife as an “extremely sharp” knife and recalled that it had been missing from the butcher block for several days prior
to the assault. When Appellant’s father returned to the bedr oom , he found Roman attempting to strike Appellant with a 25

- pound dumbbell. Roman testified that he hit Appellant with the dumbbell in the head three times . Roman dropped the dumbbell and Appellant’s father broke up the altercation ; he then order ed Appe llant to leave the home , lock ed the front door as Appellant left , and began tending to Roman’s injuries. Both Roman and Appellant were treat ed at the hospital. Roman sustained stab wounds to his neck , inner right arm, and right hand , and a bite wound to his left index finger

. Roman also suffered a severed superior thyroid artery , a perforated jugular vein, and a “hole in his trachea” that necessitated surgery. Appellant sustained lacerations to his face, scalp, and ha nds

. Appellant’s trial counsel argued in his opening statement that Appellant “was attacked and

. . . was simply defending himself.” However, the evidence presented during t he trial did not support Appellant’s claim of self

- defense. Rather , the evidence showed that Appellant ’s attack on Roman was premeditated

. Roman and4 Appellant’s father testified regarding the knife missing from the butcher block , and Roman testified regarding Appellant’s menacing behavior toward Roman on the day of the assault

. Although Roman acknowledged t hat he was on deferred adjudication probation for having committed a prior aggravated assault against Appellant that involv ed the use of a bat, the evidence showed that , during the altercation in this

case , Appellant lured Roman in to a small laundry room to effectuate the stabbing and that Appellant used deadly force agai nst Roman after Appellant had provoked and initiated the altercation

. A fter the evidence close d , Appellant’s trial counsel requested the submission of a self

- defense instruction in the trial court’s charge , argu ing that the testimony of Appellant’s father was based on assumptions and that Roman’s testimony was “self

interested

. ” Appellant’s trial counsel argu ed that “ a scintilla of evidence ” existed that justified the instruction “based on their history of [Roman] and [Appellant].” The trial court denied t he request. During closing argu ments, Appellant’s trial counsel did not argue self

- defense

. I nstead , trial counsel argued that (1) the officers

“ made a snap judgment ” to charge Appellant because he w as the larger

- sized individual , (2) Roman and Appellant’s father were not credible , and (3) the State had not met its burden to prove the elements of the charged offense

. The jury sen t sev eral questions to the trial court during its deliberations

. One
note relat ed to police reports but was not signed. When the trial court returned the
note to the jury for a signature, the jury members returned the same note with two additional questions relating to whether Appellant’s motive for stabbing Roman “mattered , ” and why “we rest[ed] the case .” With each note that was returned to the jury, t he trial court directed the jury to the evidence admitted and the trial court’s charge. The jurors sent three additional questions to the trial court , asking wh ether Appellant’s trial counsel “object [ ed ] to resting the case,” “ what happens ” if the jurors could not reach a unanimous verdict , and “how long” the jury must deliberate

.5 The trial court again directed the jurors to the charge for the first question but issue d

an Allen charge 1 for the latter two

. T he jurors then sent a final note to the trial court , asking who the second “he” was referring to in Appellant’s medical records when the narrative said , “ [p] t states ‘ he ’ got in a fight with his sister ’ s boyfriend and that

‘ he ’ had a knife.” The trial court direct ed the jury to comply with its instructions

once more
. Shortly thereafter, the jury reached a unanimous verdict and found Appellant guilty as charged in the ind ictment. The trial court sentenced Appellant
to imprisonment for seven years in TDCJ

- ID. This appeal followed. II. Analysis In his first issue, Appellant asserts that the trial court erred in denying trial counsel’s request for a self

- defense instruction in the court’s charge. Appellant argues that “the ‘scintilla’ of proof ” to support the submission of this instruction exists w ithin statements in Appellant’s medical records

. Specifically, i n the emergency triage narrative , the records state the following: “Pt states he got in a fight with his sisters (sic) boyfriend and that he had a knife .” In addition, i n the history narrative, the records state: “Patient was involved in a stabbing episode [ with ] him and another

. This patient has lacerations [on his] face[,] head[, and] bilateral hands

. ” Appellant contends that the above statements , “ as evidenced in the jury note inquiring as to who the ‘he’ was” in the narrative, constitute d a “ scintilla ” of evidence that entitled Appellant to have a self

- defense instruction included in the trial court’s charge. In asserting self

- defense, the use of force is justified “when and to the degree the actor reasonably believe s the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.” P ENAL § 9.31(a) (West

1 See Allen v. United States , 164 U.S. 492 (1896) ; Barnett v. State , 189 S.W.3d 272, 277 n.13 (Tex. Crim. App. 2006) (“An Allen charge is a supplemental charge sometimes given to a jury that declares itself deadlocked

. ”).6 2019) . In the same manner, the use of deadly force against another is justified under the above circumstances “if the actor would be justified in using force against the other” under Section 9.31 and “when and to the degree the actor reasonably believes the deadly force is immediately necessary . . . to protect the actor against the other’s use or attempted use of un lawful deadly force

. ” Id. § 9.32(a)

. “‘Deadly force’ means force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.” Id. § 9.01(3) . A reasonable belief is a belief that would be held by an ordinary and p rudent person in the same circumstances as the actor. Id. § 1.07(a)(42) (West 2021 ). Self

- defense is a “ confession

- and

- avoidance” defense

. Jordan v. State , 593 S.W.3d 340, 343 (Tex. Crim. App. 2020) (citing Juarez v. State , 308 S.W.3d 398, 404 (Tex. Crim. App. 2010) ) . A “confession

- and

- avoidance” defense does not negate any elements of the charged offense. See Jordan , 593 S.W.3d at 343 ; Juarez , 308 S.W.3d at 401

– 02 ; Shaw v. State , 243 S.W.3d 647, 65 9 (Tex. Crim. App. 2007)

. Instead, the defen se requires that a defendant (1) admit to the commi ssion of the charged offense and (2) offer a justification to his otherwise criminal conduct. Jordan , 593 S.W.3d at 343 ; cf. Juarez , 308 S.W.3d at 399

. Upon request, a trial court must include a self

- defense instruction in its charge if such a defense “ is raised by the evidence

. ” Jordan , 593 S.W.3d at 343 (citing Hamel v. State , 916 S.W. 2d 491, 493 (Tex. Crim. App. 1996) )

. A defense is “raised by the evidence” if “there is sufficient evidence to support a rational jury finding as to each element of the defense.” Jordan , 593 S.W.3d at 343 (citing Shaw , 243 S.W.3d at 657

– 58). The “ burden of showing that each element of the de fense has been satisfied” rests with the defendant. J uarez , 308 S.W.3d at 40 4 ; Shaw , 243 S.W.3d at 65 7

. “It is of no consequence ‘whether such evidence or testimony was produced by the prosecution or the accused, or whether such defensive evidence or testimony might be strong, weak, unimpeached, or contradicted.” Juarez , 3087 S.W.3d at 405 (quoting Booth v. State , 679 S.W.2d 498, 500 (Tex. Crim. App. 1984) ) ; see also Walters v. State , 247 S.W.3d 204, 209 (Tex. Crim. App. 2007)

. We “view the evidence in the light most favorable to the defendant’s requested defensive instruction , ” using the court’s “own judgment, formed in the light of its own common sense and experience, as to the limits of rational inference from the facts proven.” Jordan , 593 S.W.3d at 343 ; see also Maciel v. State , 631 S.W.3d 720, 723 (Tex. Crim. App. 2021) (quoting Sha w , 243 S.W.3d at 6 58 )

. The trial court errs in refusing to submit a requested defensive instruction if there is “ some evidence , ” when viewed in the light most favorable to the defendant, that will support its elements. Jordan , 593 S.W.3d at 343 (citing Gamino v. State , 537 S.W.3d 507, 510 (Tex. Crim. App. 2017)). However, a finding that the trial court did not err in its refusal to submit a requested defensive instruction ends our analysis and precludes the need for any review of potential harm. See Kirsch v. State , 357 S.W.3d 645, 649 (Tex. Crim. App. 2012); Tolbert v. State , 306 S.W.3d 776, 779 (Tex. Crim. App. 2010) (citing Posey v. State , 966 S.W.2d 57, 61 (Tex. Crim. App. 1998) )

. In this case , Appellant’s requested instruction would have concern e d self

defense involving the use of deadly force , rather than non

- deadly force, because Appellant used deadly force against Roman by stabbing him with a knife

. The Texas Pattern Jury Charges describes such an instr uction as follows: “You have heard evidence that, when the defendant [ insert specific conduct constituting offense ], he believed his use of force was necessary to defend himself against [ name ] ’s use [or attempted use] of unlawful deadly force.” Comm. on Pattern Jury Charges, State Bar of Texas, T EXAS P ATTERN J URY C HARGES : C RIMINA L D EFENSES PJC 32.2 (2018) (Instruction

— Self

- Defense Involving Deadly Force to Protect against Deadly Force by Another). T o be entitle d to th is defensive instruction, (1 ) Appellant was required
to admit t hat he committ ed the aggravated assault against Roman and (2) the evidence at trial must have indicated that Appellant was justified in the use of force8 under Section 9

. 31 and that Appellant reasonably believed that his use of deadly force was immediately necessary to defend himself against Roman’s use or attempted use of unlawful deadly force. P ENAL § 9.32(a); s ee also Jordan , 593 S.W.3d at 343

. As such , Appellant would have been entitled to a self

- defense instruct ion o nly if some evidence satisfie d each element of both Sections 9.31 and 9.32

. Here, Appellant did not admit to committing the charged offense, nor did he
pro duc e evidence to support the element s of self

- defens e
. First, t he record is silent
as to any admission by Appellant , overt ly or otherwise, that he committed aggravated assault as charged in the indictment . The only evidence that could possi bly be perceived as an “ admission ” is the ambiguous statement Appellan t relies

on in the admitted medical records that prove just the opposite

— “ [p] t states he got in a fight with his sisters (sic) boyfriend and that he had a knife

. ” In addition,

a lthough Appellant’s trial counsel initially argued in his opening statement that Appellant acted in self

- defense, a s the trial progressed and during his closing argument , Appellant’s trial counsel instead presented and relied on other theories , some of which were arguably inconsistent with a self

- defense theory

. Thus , Appellant f ailed to admit to the charged offense , a crucial and necessary component of any “confession

- and

- avoidance” defense. See Jordan , 593 S.W.3d at 343 ; see also Young v. State , 991 S.W.2d 835, 839 (Tex. Crim. App. 1999) (trial counsel’s arguments that the defendant acted reasonably and that his actions were “necessary to save his life” did not “present the defense of necessity”); cf. Lozano v. State , 636 S.W.3d 25, 3 4 (Tex. Crim. App. 2021) (“[e]rroneous arguments of counsel about a defensive issue not rais ed by the evidence do not weigh in favor of finding egregious harm ”). Nevertheless , t he evidence is u ndisput ed that Appellant initiated and provoked the assaul t upon Roman and that Appellant was the first person to use9 deadly force during the altercation. See P ENAL § 9.32( a)(2) (deadly force must be immediately necessary); see , e.g. , Lozano , 636 S.W.3d at 33 (self

- defense is not raised by the evidence where the defendant provoked the altercation and did not otherwise meet the presumptions in Section 9.32(b))

. As stated above, Appellant (1) lured Roman into a small laundry room to effectuate the assault, (2) initiated the altercation by punching Roman in the back of the head, and (3) then used de adly force against Roman, by stabbing him in the neck with an “extremely sharp” knife , in response to Roman ’s attempt to defend himself by using non

- deadly force

. Even if Roman’s defensive actions with the dumbbell could be construed as a use of deadly force, Roman and Appellant’s father both testified that Roman sustained the serious stabbing injury to his neck before Roman struck Appellant with the dumbbell. Indeed , Appellant did not act in response to deadly force being used against him becaus e Roman did nothing to place Appellant in fear of death. Moreover, a lthough the medical records state that Appellant “was involved in a stabbing episode” and , along with photographic evidence, that Appellant “ha [d] lacerations [on his] face[,] head[, and] bilateral hands ,” Appellant’s father testified that , at the beginning of the altercation, only Roman was stabbed , only Roman was bleeding , and “[t]here was no blood coming from” Appellant at that time

. Without

mor e, t he ambiguous statements within Appellant’s medical records

— that “he got in a fight with his sisters (sic) boyfriend and that he had a knife” and that Appellant was “involved in a stabbing episode”

— do not constitute sufficient evidence to support a rati onal jury finding that each element of a claim of self

- def ense has been
met

. There is n o evidence in th e record that the term “he” refers to Roman

. Moreover, the se statements do not indicate the timing of the knife’s possession

— before , during, or after Appellant’s use of deadly force. There is n o evidence that Roman used deadly force against Appellant prior to being stabb ed multiple times by Appellant with a knife

. As such, there is no evidence that Appellant believed his use10 of deadly force was immediately necessary to defend himself against any purported use or attempted use of unlawful deadly forc e by Roman

. Viewing the evidence in the light most favorable to the requested instruction and considering the limits of rational inference s from the facts proven at trial , we conclude that there is insufficient evidence to support a rational jury finding as to each element of Appellant’s claim of self

- defense

. The evidence in the record does not meet each element of the defense under Sections 9.31 and 9.32. Therefore, Appellant was not entitled to a self

- defense instruction , and the trial court did not err when it refused Appellant’s request

. Se e Jor dan , 593 S.W.3d at 343 ; cf

. Lozano , 636 S.W.3d at 33 ; Young , 991 S.W.2d at 839

. W e overrule Appellant’s first issue on appeal. I II

. Court

- Appointed Attorney ’s Fees In his second issue on appeal, Appellant asserts , and the State agrees, that the trial court and the district clerk erroneously assess ed court

- appointed attorney’s fees against him

. An indigent defendant cannot be taxed the cost of services rendered by his
court

- appointed attorney unless the trial court finds that the defendant has the financial resources to repay those costs in whole or in part. Smith v. State , 631 S.W.3d 484, 501 (Tex. App.

— Eastland 2021, no pet.) (citing Mayer v. State , 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)); see T EX

. C ODE C RIM

. P ROC

. A NN

. art. 26.05 (g) (West Supp. 202 2 ). The Texas Court of Criminal Appeals has held that the trial court must find that the defend ant had the ability to repay court

- appointed attorney’s fees prior to assessing such fees against an ind igent defendant. Cates v. State , 402 S.W.3d 250, 251

– 52 (Tex. Crim. App. 2013) ; s ee also Mayer , 309 S.W.3d
at 556 (“ [T] he defendant ’ s financial resources and ability to pay are explicit critical elements in the trial court ’ s determination of the propriety of ordering reimbursement of costs and fees .”)

. Further, a “defendant who is determined by the11 [trial] court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant ’ s financial circumstances occurs.” Cates , 402 S.W.3d at 251 (quoting C RIM

. P ROC

. art. 2 6.04(p)). On September 3 , 2019, Appellant filed an affidavit of indigenc e certifying that he did not have the necessary funds to hire an attorney for his defense for the instant

case
. T he trial court determined that Appellant was indigent and appointed trial counsel to represent Appellant’s interest in all proceedings in th is case

. Subsequent to this appointment, t he tria l court did not receive evidence , nor did it issue a find ing , that Appellant had the ability to pay any portion of the attorney’s fees that were incurred by his court

- appointed attorney

. Moreover , n othing in the record indicates that (1) Appellant is no longer indigent or (2) the trial court made a subsequent determination that Appellant’s financial circumstances had materially changed or that he had the financial resources or ability to pay the cour t

- appointed attorney’s fees of $ 9,4 50 that were assessed against him

. Because the trial court ’s judgment ordered Appellant to pay “ all costs ” and the district clerk improperly assessed the attorney’s fees incurred by his court

- appointed attorney as reimbursement costs against Appellant , we must modify the trial court’s judgment and the district clerk ’s amended bill of costs to remove the improperly assessed fees. See Cates , 402 S.W.3d at 252 ; Smith , 631 S.W.3d at 501

. Here, the trial court’s judgment erroneously orders Appellant to pay “all costs in this proceeding incurred

. . . [including] all court costs, fines, fees, assessments and restitution. ” Similarly, t he district clerk’s amended bill of costs erroneously include s court

- appointed attorney’s fe e s as reimbursement costs for which Appellant is responsible

. Accordingly, we modify (1) the trial court’s judgment to clarify that “all court costs, fines, fees, assessments and restitution” does not include court

-12 appointed attorney’s fees and (2) the district clerk ’s amend ed bill of cost s to delete the court

- appointed attorney’s fees assessed against Appellant

. I V. This Court’s Ruling As modified, w e affirm the judgment of the trial cour t

. See T EX

. R. A PP

. P. 43.2(b).

W. STACY TROTTER JUSTICE

November 3 , 202 2 Do not publish. See T EX

. R. A PP

. P. 47.2(b). Panel consists of: Bailey , C.J., Trotter, J., and Williams, J.