Opinion issued February 5, 2019

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-18-00441-CR

———————————

BRIAN BLACKBURN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court No. 5

Tarrant County, Texas1

Trial Court Case No. 1488384

MEMORANDUM OPINION

A jury convicted appellant, Brian Blackburn, of misdemeanor assault 

causing bodily injury upon a family member, and the trial court, after finding a 

 

1 The Texas Supreme Court transferred this appeal from the Court of Appeals for 

the Second District of Texas. See TEX. GOV’T CODE ANN. § 73.001 (authorizing 

transfer of cases between courts of appeals).
2

single enhancement true, assessed punishment at confinement for 180 days. In two 

issues on appeal, appellant contends that (1) the trial court erred in denying his 

requested self-defense jury instruction and (2) that Article 102.008(a) of the Texas 

Code of Criminal Appeals, which authorizes a $25 “district attorney” fee, is 

unconstitutional. We affirm.

BACKGROUND

On February 23, 2017, appellant and his wife, Yolanda Rivas, began to 

argue about money after Rivas told appellant that she was going to pay her phone 

bill out of an account the two shared. Appellant was upset with this because he 

claimed that the money in the account was already committed to other bills and he 

believed that she should pay the bill out of her own account. When appellant 

became angry, Rivas began videoing the fight with her cell phone. The video 

shows appellant going into the bedroom and beginning to look for Rivas’s debit 

card. When appellant realized that the card was not in the purse, he turned to 

Rivas again and demanded that she give him the card. When Rivas did not comply, 

appellant reached toward her. The video then cuts out, and here appellant’s and 

Rivas’s version of the events begins to differ. 

The State presented evidence that appellant grabbed Rivas by the arms, 

pulled her towards him, grabbed her hair, and threw her on the bed. When Rivas 

attempted to get up, appellant put his knee in her stomach to prevent her from 
3

doing so. He then began to hit Rivas in the head with both hands, using the palm of 

his hands. Rivas claimed that a cut on appellant’s lip was caused when her phone, 

which she was still holding, hit him in the face as she defended herself. Rivas was 

crying for help during the attack, and appellant attempted to cover her mouth to 

prevent her from yelling for help. However, Rivas’s son, who was in the living 

room, came in to help when he heard Rivas screaming. When Rivas’s son entered 

the room, appellant stopped hitting Rivas and went into the living room. Rivas 

then called the police and appellant called his sister. 

The police questioned both appellant and Rivas and documented the “knots” 

on her forehead and under her right eye. Rivas told police that she and appellant 

were fighting about money and that appellant punched her several times. Police 

looked at the video and concluded that appellant was raising his arms toward Rivas 

when the video stopped. Appellant told police that Rivas had punched him in the 

mouth. He also said that she punched herself and that “he would never hit a 

woman.” After speaking with both appellant, Rivas, and Rivas’s son, watching the 

video, and viewing Rivas’s injuries, police determined that appellant was the 

primary aggressor and arrested him.

Appellant presented a different version of the events. He stated that he tried 

to take Rivas’s purse from her so that he could retrieve his bankcard from it, and 

thatthis explained him reaching for her on the video. Appellant stated that, in 
4

response, Rivas punched him in the mouth. He said that he then grabbed Rivas by 

the shoulders and pinned her on the bed to prevent her from hitting him again. He 

denied ever hitting Rivas or pulling her hair. Instead, he claimed that she caused 

the bruises to herself. He claimed that her bloody knuckles were caused when she 

hit him in the mouth and pointed out to police that he did not have any marks on 

his own hands. Appellant also presented evidence that Rivas had been arrested on 

a previous occasion for assaulting him, but that the case was dismissed when he 

did not go to trial to testify against her. He also presented evidence that Rivas 

sought to obtain a visa based on being a domestic abuse victim.

Appellant requested a jury charge on self-defense, contending that he 

presented evidence justifying his actions, i.e., that Rivas hit him first. The trial 

court denied the requested charge, noting “he just testified for 30 minutes that he 

never hit her.” The trial court also noted that he would sustain an objection by 

appellant if the State attempted to argue that any of the other conduct admitted to 

by appellant, such as restraining her and holding her down, was also an assault. 

The State did not make such an argument, and the jury found appellant guilty of 

the charged offense. This appeal followed.

SELF-DEFENSE

In his first issue on appeal, appellant contends that the trial court erred in 

denying his request for a jury instruction on self-defense. In response, the State 
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contends that self-defense is a confession-and-avoidance defense and that appellant 

was not entitled to one because his did not admit to the assaultive conduct with 

which he was charged.

Standard of Review and Applicable Law

When reviewing an alleged jury-charge error, appellate courts first 

determine whether error exists and then, if so, ascertain whether the resulting harm 

is sufficient to warrant a reversal. 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 needed for a reversal depends on whether a complaint regarding 

“that error was preserved in the trial court.” Swearingen v. State, 270 S.W.3d 804, 

808 (Tex. App.—Austin 2008, pet. ref’d). If, as here, the defendant made a timely 

objection, reversal is required if there has been “some harm.” Almanza v. State, 

686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g).

A person is entitled to act in self-defense to an assault. See TEX. PENAL 

CODE § 9.31(a) (“[A] person is justified in using force against another when and to 

the degree the actor reasonable believes the force is immediately necessary to 

protect the actor against the other’s use or attempted use of unlawful force.”). 

When determining whether a defensive instruction should have been 

provided, appellate courts “view the evidence in the light most favorable to the 

defendant’s requested” instruction. Bufkin v. State, 207 S.W.3d 779, 782 (Tex. 
6

Crim. App. 2006). In general, a defendant is entitled to a jury instruction on a 

defensive issue if the defensive issue “is raised by the evidence, regardless of the 

strength or credibility of that evidence.” Farmer v. State, 411 S.W.3d 901, 906 

(Tex. Crim. App. 2013). “A trial court errs in denying a self-defense instruction if 

there is some evidence, from any source, when viewed in the light most favorable 

to the defendant, that will support the elements of self defense.” Gamino v. State, 

537 S.W.3d 507, 510 (Tex. Crim. App. 2017). “Whether a defense is supported by 

the evidence is a sufficiency question reviewable on appeal as a question of law.” 

Shaw v. State, 243 S.W.3d 647, 658 (Tex. Crim. App. 2007).

Chapter Nine of the Texas Penal Code (which contains the self-defense 

statute found in sections 9.31) is entitled “Justification Excluding Criminal 

Responsibility.” TEX. PENAL CODE ANN. §§ 9.01–.63. It includes justifications 

such as self-defense, necessity, and public duty, and explains the justification 

aspects of protection of persons and property. Young v. State, 991 S.W.2d 835, 838 

(Tex. Crim. App. 1999). If the conduct in question is justified under one of the 

provisions of Chapter Nine, it is a defense to prosecution. TEX. PENAL CODE ANN. 

§ 9.02; see Young, 991 S.W.2d at 838. However, a defendant is entitled to an 

instruction involving one of the justification defenses “only . . . when the 

defendant’s defensive evidence essentially admits to every element of the offense

including the culpable mental state, but interposes the justification to excuse the 
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otherwise criminal conduct.” Shaw v. State, 243 S.W.3d at 659. The Court of 

Criminal Appeals has since held that a defendant is not required to concede the 

State’s version of events and admitting to the conduct does not necessarily mean 

admitting to every element if the defendant “sufficiently admits” to the 

commission of the offense. See Gamino, 537 S.W.3d at 511–12 (holding 

defendant charged with aggravated assault with a deadly weapon entitled to selfdefense instruction even though he denied pointing his gun at and verbally 

threatening complainant but admitted displaying weapon because he felt 

threatened). 

Thus, the issue this Court must decide is whether appellant “sufficiently 

admitted” committing the offense.

Analysis

The State argues that appellant did not sufficiently admit the offense 

because, while he admitted grabbing Rivas by the shoulders and holding her down 

on the bed after she hit him in the mouth, he denied hitting her with his hand or

pulling her hair, as charged in the information set forth in the jury charge.

2

 

 

2 The misdemeanor information provided in relevant part:

THAT BRIAN BLACKBURN . . . ON OR ABOUT THE 23RD DAY OF 

FEBRUARY 2017, DID THEN AND THERE INTENTIONALLY OR 

KNOWINGLY CAUSE BODILY INJURY TO YOLANDA RIVAS, A 

MEMBER OF THE DEFENDANT’S FAMILY OR HOUSEHOLD OR 

WITH WHOM THE DEFENDANT HAD A DATING RELATINGSHIP, 
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Appellant counters that he admitted to a different version of events, even though he 

did not admit to hitting Rivas or pulling her hair.

In Holloman v. State, 948 S.W.2d 349 (Tex. App.—Amarillo 1997, no pet.), 

the defendant testified that he was arguing with his wife, that he attempted to leave 

the house, that his wife “picked up a butcher’s knife,” that he “feared that he would 

‘get killed’” because of his wife’s “propensity for violence” against him and 

others, that his wife put the knife down, that his wife grabbed his shirt, that his 

wife hit him with her hands, and that the two “‘tussled’ for approximately ten 

minutes during which time [the defendant] “repeatedly tried to free himself” before 

ultimately being able to leave. Id. at 351. Considering this testimony, the Amarillo

Court of Appeals determined that an instruction should have been given because 

the testimony indicated, among other things, that the defendant’s wife “was the 

first to use force,” that the defendant “feared for his safety,” and that the defendant 

“met force with force.” See id. Moreover, the court explained that although the 

defendant did not admit to hitting his wife, his testimony included statements that 

 

BY STRIKING HER WITH HIS HAND, OR BY PULLING HER HAIR 

WITH HIS HAND[.]

Likewise, the jury charge provided:

Now, if you find from the evidence beyond a reasonable doubt that the 

Defendant, BRIAN BLACKBURN . . .did then and there intentionally or 

knowingly cause bodily injury to YOLANDA RIVAS, a member of the 

Defendant family or household . . . , by striking her with his hand, or by 

pulling her hair with his hand, then you will find the Defendant guilty as 

charged in the information.
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“they ‘tussled,’” “that he may have hit her with his legs,” and that “he ‘fought’” 

with her. See id. at 352. Because the record supported a determination that the 

defendant conceded to hitting his wife and thereby to causing her bodily injury, the 

Amarillo court explained that the evidence demonstrated that the defendant used 

“force” to repel the attack of another as described by the Penal Code. See id. (citing 

TEX. PENAL CODE ANN. § 9.31(a)). The court held that “[the self-defense statute] 

says nothing of admitting to the mode or type of ‘force’ averred in the charging 

instrument; all that it contemplates is that ‘force’ was used.” Id.

However, we need not decide whether appellant is required to admit that he 

hit Rivas or pulled her hair, as charged, or whether his admission that he held her 

down by her shoulders is sufficient to raise self-defense, because in this case he 

denies another critical element of the offense. Appellant denies that he caused any

bodily injury to Rivas, arguing instead that “the injuries suffered by Ms. Rivas 

were self-inflicted, as she had punched herself in the face.” Specifically, appellant 

told Officer Sanchez, who responded to the dispatch, that Rivas “had punched 

herself . . . and that’s how she sustained the injuries on her face.” When asked to 

explain why Rivas’s forehead was swollen in the pictures taken after the incident, 

appellant replied, “She’s done that to herself before” and demonstrated to the jury 

how Rivas had “done it to herself.” He further testified, “I never assaulted [Rivas]. 

Never in the three-and-a-half years we were together have I assaulted her.” As 
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such, appellant is not arguing that self-defense justified his injury of Rivas; he is 

arguing that she injured herself and that he committed no offense at all because he 

did not cause her bodily injury. He also presented evidence that Rivas had a motive 

to injure herself so that she could apply for a visa as a domestic abuse victim. 

Even if we were to agree with the Holloman reasoning, we find that it is 

distinguishable because here, appellant not only denied the type of force he used, 

he denied causing bodily injury at all. Because appellant did not sufficiently admit 

committing the offense, the trial court did not err by refusing his requested selfdefense instruction. Accordingly, we overrule issue one.

CONSTITUTIONALITY OF ARTICLE 102.008(a)

Article 102.008(a) of the Texas Code of Criminal Procedure provides, with 

an exception not applicable here, that “a defendant convicted of a misdemeanor . . . 

shall pay a fee of $25 for the trying of the case by the district or county attorney.” 

TEX. CODE CRIM. PROC. ANN. art. 102.008(a). In issue two, appellant contends that 

article 102.008(a) is an unconstitutional tax because it is not expended on a 

legitimate criminal justice purpose but goes to the County’s general fund.

While this appeal was pending, the Second Court of Appeals has held that 

article 102.008(a) is constitutional because of several interrelated statutes “that 

direct the $25 ultimately to payment of the prosecutor’s salary—a legitimate 

criminal justice purpose[.]” Tyler v. State, 563 S.W.3d 493 (Tex. App.—Fort 
11

Worth 2018, no pet.) We note that this Court has held to the contrary. See 

Hernandez v. State, No. 01-16-00755-CR, 2017 WL 3429414, at *7 (Tex. App.—

Houston [1st Dist.] Aug. 10, 2017, no pet.). However, “the court of appeals to 

which [a] case is transferred must decide the case in accordance with the precedent 

of the transferor court under principles of stare decisis if the transferee court’s 

decision otherwise would have been inconsistent with the precedent of the 

transferor court.” TEX. R. APP. P. 41.3. Applying, as we must, the Second Court 

of Appeals’ precedent in Tyler, we overrule issue two. We note that, had this 

Court not been required to decide the case in accordance with precedent from the 

Second Court of Appeals, the outcome on this issue would have been different. Id.

CONCLUSION

We affirm the trial court’s judgment.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

Do not publish. TEX. R. APP. P. 47.2(b)