Reversed and Remanded and Opinion filed April 9, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00245-CR

JEREMY DESHAWN DUGAR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 1407238

O P I N I O N

In this appeal from a conviction for murder, the question is whether the trial 

court reversibly erred when it omitted an instruction on the law of self-defense. 

The trial court ruled that appellant was not entitled to the instruction because he 

shot and killed an innocent bystander. We conclude that the trial court’s reasoning 

was erroneous, that the instruction should have been given, and that the omission 

of the instruction resulted in some harm. We therefore reverse the trial court’s 

judgment and remand for a new trial.
2

BACKGROUND

On the evening of May 2, 2010, appellant drove to a farewell party for 

Edrick “Pop” Cole, who was celebrating one of his last nights of freedom before 

turning himself in for a period of incarceration. Appellant disapproved of Pop and 

his lifestyle, but appellant chose to attend the party because he was Pop’s brotherin-law.

The party was located in the parking lot of an abandoned K-mart. When 

appellant arrived, more than a hundred people were in attendance and the crowd 

was acting disorderly. Police were eventually called to the scene and told the 

crowd to disperse because they did not have a valid permit.

Pop encouraged everyone to move the party to a nearby park. Appellant’s 

two brothers were at the party and they all agreed to drive to the park in their own 

separate vehicles. The plan was to follow a black Dodge Charger, in which Pop 

was believed to be a passenger. As they were leaving the K-mart, some jostling 

occurred near the exits and several drivers tried to maneuver their vehicles in front 

of each other. Appellant and one of his brothers happened to cut off a black 

Cadillac, which then ignited a fit of road rage.

Appellant was chased down on a main thoroughfare by the Cadillac and a 

red Ford Focus, which had also been at the farewell party. The Cadillac moved into 

the left-hand lane, adjacent to appellant, and the Focus moved into the shoulder on 

appellant’s right side. Appellant was effectively “sandwiched” between the two 

vehicles. The situation was made especially tense because appellant was driving a 

Jeep Wrangler with the top down, and his wife was riding as a passenger. With the 

Jeep’s open cover, appellant could hear that the driver of the Cadillac was yelling 

at him.
3

At some point, appellant hit the Focus—unintentionally, he claimed—

causing the Focus to spin out of control and collide with a green Ford Explorer. 

The driver of the Explorer had no prior affiliation with Pop or any of the parties 

involved with this case.

The driver of the Charger, who thought that he was leading a group of cars, 

saw that a “big wreck” had happened behind him. Suspecting that some of the 

affected cars were from his caravan, the driver of the Charger pulled into the empty 

parking lot of a local employment office. Many cars followed him into the parking 

lot, including the Cadillac, the Focus, and the Explorer. Appellant and his two 

brothers drove away, but they circled back after a few minutes, believing that Pop 

was still in the Charger.

When appellant entered the parking lot, he estimated that fifteen or sixteen 

people were standing outside of their vehicles. Pop was not among the crowd, 

which by then was quite upset. Appellant described the crowd as “vicious” and 

“ferocious.” People were arguing, using derogatory words, and generally accusing 

appellant of having caused the accident.

The accounts vary as to whether appellant and his brothers stayed inside of 

their vehicles, but it is clear that tensions continued to escalate. Appellant saw that 

one man in the crowd had a handgun, though he was not pointing it at anyone. 

Appellant cracked open his door and exhibited a handgun of his own, but he did 

not point it at anyone either. Another man in the crowd saw appellant’s weapon 

and responded, “Oh, well we got weapons too!”

Sensing hostility, appellant thought that some members of the crowd were 

preparing to rob him or carjack his brothers for the valuable rims on their vehicles. 

Appellant also suspected that the arguments over the accident were going nowhere. 

Believing that he was ultimately faultless with respect to the accident, appellant 
4

told his brothers that they should all leave. The three of them then drove away in 

single file, with appellant at the rear.

As he was exiting the parking lot, appellant turned his head and saw that 

members of the crowd were pursuing him on foot. Appellant believed that his 

pursuers intended to cause him harm, so he grabbed his weapon, aimed above the 

crowd, and fired two or three times, hoping to scare the crowd away. Appellant 

was quickly met with return fire from a shooter in the crowd, who was later 

identified as Justin Harris. Appellant kept driving and did not return.

One of appellant’s shots hit the complainant, Tevin Williams, who had 

previously been a passenger in the Cadillac. The bullet entered through the top part 

of the complainant’s chest, traveled through his right lung in a downward 

direction, and exited through his mid-back. The trajectory was fatal. The medical 

examiner opined that the complainant may have been bending over at the waist 

when he was struck.

Appellant learned of the complainant’s death shortly after the shooting, but 

he never reported the incident to authorities or surrendered himself for questioning. 

Several days later, he was tracked down by police and arrested for murder.

During his custodial interrogation, appellant gave conflicting versions of the 

events. He initially denied that he owned a gun or had fired at the complainant, but 

when police raised the question of self-defense, appellant confessed that he had 

discharged several rounds in the direction of the crowd. Appellant explained that 

he had felt threatened at the time of the shooting because members of the crowd 

were armed.

The State’s witnesses testified at trial that the complainant was an aspiring 

young rapper who was scheduled to perform at Pop’s farewell party. Witnesses 
5

said that the complainant was not armed at the time of the shooting and had played 

no part in the arguments after the accident. One witness specifically reported that 

the complainant had never acted in a threatening manner, and that he had been 

quiet the entire time.

The defense witnesses included one of appellant’s brothers, who claimed

that there were several guns in the crowd. The brother also testified that he could 

see the crowd coming towards him as he was trying to leave. A passenger in the 

brother’s car added to this testimony by saying, “They were all after us when we 

were out of the parking lot.”

Appellant testified that he fired the first shots, even though he did not 

believe that a gun was pointed at him at the time of the shooting. Appellant 

explained, however, that he felt vulnerable because he and his wife were exposed, 

and he was in a high state of anxiety. Appellant stated that he only intended to 

scare the crowd, not kill anybody.

The trial court drafted a charge that originally included a self-defense 

instruction, but during the charge conference, the State objected that appellant was 

not entitled to the instruction.1The State argued that there was no evidence to 

support the instruction because appellant did not face an immediate threat from the 

complainant. The State also argued that there was a statutory bar to self-defense 

because the complainant was an innocent bystander. The latter argument invoked 

section 9.05 of the Texas Penal Code, which provides that self-defense is not 

available in a prosecution for the reckless injury or killing of an innocent third 

party.

 

1

The original draft of the trial court’s charge is not in our record, but we can deduce that 

it contained a self-defense instruction because appellant submitted a written request during the 

charge conference to “edit” the court’s instruction on self-defense.
6

Appellant responded that, under the circumstances, he was allowed to use 

either deadly force or the threat of deadly force, and that the evidence was 

therefore sufficient to support a self-defense instruction. Appellant also argued that 

Section 9.05 did not preclude the giving of the instruction. Appellant explained 

that the complainant was a member of a larger group, and because that group had 

intimidated appellant, there was at least a fact question as to whether the 

complainant was an innocent third party. Appellant also explained that Section 

9.05 applied only to cases involving reckless killings, meaning that he would still 

be justified by acting in self-defense if recklessness were not shown. Appellant 

accordingly suggested that recklessness was another fact question for the jury to 

decide.

The trial court determined that “there’s certainly nothing there to indicate 

that [the complainant] was anything but an innocent bystander.” Without 

commenting on whether appellant had killed the complainant recklessly, the court 

accepted the State’s argument under Section 9.05 and held that appellant was not 

entitled to a self-defense instruction. The court deleted the instruction from its 

original draft and submitted a final charge that contained no law regarding a 

justification defense.

ANALYSIS

We review a complaint of jury-charge error under a two-step process, 

considering first whether error exists. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. 

Crim. App. 2005). If error does exist, we then analyze that error for harm under the 

procedural framework of Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 

1984).
7

I. Did the trial court err by omitting a self-defense instruction?

The trial court did not expressly rule on the State’s first charge objection that 

the evidence failed to raise the issue of self-defense. Instead, the court concluded 

that the complainant was an innocent bystander as a matter of law, and based on 

that conclusion, the court held that appellant should not receive a self-defense 

instruction because of Section 9.05.

The State asserts on appeal that the trial court made the correct decision by 

omitting the instruction from the charge, regardless of which objection it actually 

sustained. We begin by addressing the State’s evidentiary objection, because if 

self-defense was not raised by the evidence, then our error analysis is over, and 

there is no need to determine whether Section 9.05 had any preclusive effect on the 

giving of a self-defense instruction.

A. The evidence raised the issue of self-defense.

The trial court must give a requested instruction on every defensive issue 

that is raised by the evidence. See Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. 

Crim. App. 2013). A defensive issue is raised by the evidence if there is some 

evidence, regardless of its source, on each element of a defense that, if believed by 

the jury, would support a rational inference that the element is true. See Shaw v. 

State, 243 S.W.3d 647, 657–58 (Tex. Crim. App. 2007).

When deciding whether a defensive issue has been raised by the evidence, a 

court must rely on its own judgment, formed in the light of its own common sense 

and experience, as to the limits of rational inference from the facts that have been 

proven. Id. at 658. The defendant is entitled to an instruction on a defense when 

there is legally sufficient evidence to raise the defense, regardless of whether the 

evidence supporting the defense is weak or contradicted, and even if the trial court 
8

is of the opinion that the evidence is not credible. Id. Whether the record contains 

such evidence is a question of law, which means that we do not apply the usual 

rule of appellate deference to the trial court’s ruling. Id. “Quite the reverse, we 

view the evidence in the light most favorable to the defendant’s requested 

submission.” Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006).

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

extent that he reasonably believes that deadly force is immediately necessary to 

protect himself from the other’s use or attempted use of unlawful deadly force. See 

Tex. Penal Code § 9.32. The State argues on appeal, as it did at trial, that there is 

no evidence to support a self-defense instruction because the record shows that 

appellant did not face an immediate threat from the complainant individually. We 

do not take such a narrow view of the right to self-defense.

When there is evidence, viewed from the standpoint of the defendant, that he 

was in danger of an unlawful attack or a threatened attack at the hands of more 

than one assailant, the trial court should instruct the jury that the defendant had a 

right to protect himself against the multiple assailants. See Frank v. State, 688 

S.W.2d 863, 868 (Tex. Crim. App. 1985); Wilson v. State, 140 Tex. Crim. 424, 

429, 145 S.W.2d 890, 893 (1940). The point is well-demonstrated by the case of 

Sanders v. State, 632 S.W.2d 346 (Tex. Crim. App. [Panel Op.] 1982). There, the 

defendant was attacked inside a beer joint, and then pursued outside by a group of 

several men. Id. at 346. The defendant obtained a rifle and, from a distance of more 

than thirty feet, shot towards the group to scare the men away. Id. at 347. One of 

the shots struck the decedent, a man who had not attacked the defendant. Id. at 346. 

The trial court instructed the jury that it could acquit on the grounds of selfdefense, but only if the jury found that the defendant reasonably believed that the 

decedent—and only the decedent—was using or attempting to use unlawful deadly 
9

force. Id. at 347. The Court of Criminal Appeals held that the charge was too 

restrictive, and that the defendant was entitled to a self-defense instruction as it 

relates to multiple assailants. Id. at 348.

In this case, appellant testified that he was being pursued by a group of a 

men, just like the defendant in Sanders. Appellant also testified that the group was 

“vicious” and “ferocious,” and he believed the men were out to cause him harm. If 

appellant reasonably believed that deadly force was immediately necessary to 

protect himself from the use or attempted use of unlawful deadly force from the 

group at large, then the evidence raised the issue of self-defense, regardless of the 

complainant’s individual actions. See Frank, 688 S.W.2d at 868; Sanders, 632 

S.W.2d at 348; see also Dickey v. State, 22 S.W.3d 490, 493 (Tex. Crim. App. 

1999) (Keller, J., concurring) (noting that a person would be entitled to use deadly 

force in self-defense against another, even if the other was unarmed and made no 

threatening moves, provided that the other was a party to a hostile group). 

The State argues next that, even when the actions of the group are examined, 

the evidence is still insufficient to raise the issue of self-defense. The State 

emphasizes that there is no evidence that any member of the group verbally 

threatened appellant with his life. The State also points out that, before the 

shooting, there was no history of physical abuse between appellant and any 

member of the group, and no one had actually used or attempted to use deadly 

force against appellant. The State seems to contend that an actual danger is 

required before a person may act in self-defense. But again, that view is too 

narrow.

“A person has the right to defend himself from apparent danger to the same 

extent as he would if the danger were real.” Hamel v. State, 916 S.W.2d 491, 493 

(Tex. Crim. App. 1996). Thus, under certain circumstances, a person may use 
10

deadly force against another, even if the other was not actually using or attempting 

to use unlawful deadly force. See Jones v. State, 544 S.W.2d 139, 142 (Tex. Crim. 

App. 1976); see also Burke v. State, 652 S.W.2d 788, 790 (Tex. Crim. App. 1983) 

(noting that a person is not required to wait until he is actually attacked before he 

may lawfully protect himself), superseded by rule and on other grounds as stated 

in Whiting v. State, 797 S.W.2d 45 (Tex. Crim. App. 1990). The only requirement 

is that the person must be justified by acting against the danger “as he reasonably 

apprehends it.” See Hamel, 916 S.W.2d at 493; see also Dyson v. State, 672 

S.W.2d 460, 463 (Tex. Crim. App. 1984) (noting that the defendant would be 

entitled to a self-defense instruction if he reasonably believed that his brother was 

using or attempting to use unlawful force, and it was “immaterial” that the 

defendant was not in fact attacked by his brother).

The reasonableness of a person’s belief that force is immediately necessary 

is viewed from the person’s standpoint at the time that he acted. See Jones, 544 

S.W.2d at 142; Kolliner v. State, 516 S.W.2d 671, 674 (Tex. Crim. App. 1974). 

Here, the facts showed that appellant was placed in a hostile situation in the 

moments before the shooting. Two cars had chased and “sandwiched” him on the 

road, which was highly aggressive behavior. During the chase, appellant heard that 

the driver of one of the cars was yelling at him, and the aggressive driving 

contributed to an accident involving multiple vehicles. 

After the accident, the arguments escalated in a parking lot. Many people 

exited their cars, and according to appellant, they were “vicious,” “ferocious,” and 

blaming him for the accident. The testimony supported a finding that the crowd 

was akin to an angry mob. Appellant saw that at least one person in the crowd had 

a gun, and he heard a statement that more weapons were present.
11

Appellant decided to leave the parking lot, without regard to the crowd’s 

belief that he was responsible for the accident. As he drove away, appellant saw 

that members of the crowd were pursuing him on foot. Even though he did not 

specifically see a gun pointed at him, appellant could have reasonably believed that 

the crowd was pursuing him for a sinister purpose: to shoot him while he was 

exposed and still within range.

Because appellant gave more than one story of the events, his claim of selfdefense may not strike all as especially strong or convincing. However, a defense 

can be raised even when its supporting evidence has been impeached or 

contradicted. See Smith v. State, 676 S.W.2d 584, 586–87 (Tex. Crim. App. 1984).

Appellant testified that, in the heat of the moment, he was afraid of being 

harmed. The fact that a shooter in the crowd was able to quickly return fire 

suggests that a gun may have been at the ready, which lends some credibility to the 

belief that harm was imminent. We conclude that it was reasonable for appellant to 

apprehend an immediate danger under the circumstances, and that the evidence 

was therefore sufficient to raise the issue of self-defense. See Sanders, 632 S.W.2d 

at 348.

B. Section 9.05 did not preclude a self-defense instruction.

We now consider what effect, if any, that Section 9.05 has on the giving of a 

self-defense instruction. The statute provides as follows:

Even though an actor is justified under this chapter in threatening or 

using force or deadly force against another, if in doing so he also 

recklessly injures or kills an innocent third person, the justification 

afforded by this chapter is unavailable in a prosecution for the 

reckless injury or killing of the innocent third person.

Tex. Penal Code § 9.05.
12

The State argued that appellant could not receive a self-defense instruction 

because of Section 9.05, and the trial court agreed, having concluded as a matter of 

law that the complainant was an innocent bystander. The trial court’s conclusion 

was erroneous for at least two reasons.

First, as appellant argued at trial, there was at least a fact question as to 

whether the complainant was an innocent bystander. The evidence showed that the 

complainant was a passenger in the same Cadillac that had aggressively chased 

appellant down the road. After the accident, the complainant exited the Cadillac 

and joined the larger crowd that appellant described as “vicious” and “ferocious.” 

The State’s witnesses testified that the complainant was quiet and never made any 

threats, but the defense witnesses testified that the crowd as a whole was hostile. 

One defense witness specifically testified that the entire crowd was in pursuit of 

appellant as he was leaving the parking lot: “They were all after us.” Thus, there 

was a conflict in the evidence. The jury could have found that the complainant was 

pursuing appellant on foot, or that he was at least a party to an attempted attack.2

Second, even if we assumed that the complainant was an innocent third 

person, his bystander status alone would not preclude the giving of a self-defense 

instruction. Section 9.05 states that a justification defense is unavailable when the 

actor “recklessly” injures or kills an innocent third person. Whether a person acts 

recklessly is a determination that can be made only by the finder of fact, which in 

this case was the jury. See Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 

2003) (“[I]n homicide prosecutions, the defendant’s state of mind is a question of 

fact that must be determined by the jury.”). It necessarily follows that the trial 

 

2

The State points out that the complainant was found without a weapon on his person 

and that his hands tested negative for the presence of gunshot residue. But the defense witnesses 

testified that there were multiple guns in the crowd. Furthermore, one police detective testified 

that he was never able to locate the Focus or its occupants, which raises the suggestion that the 

crime scene had not been preserved by the time police arrived.
13

court could not make a preliminary determination that appellant shot the 

complainant recklessly, and was therefore ineligible to claim self-defense.

The State contends that we must follow the decisions in Banks v. State, 955 

S.W.2d 116 (Tex. App.—Fort Worth 1997, no pet.) and Vidal v. State, 418 S.W.3d 

907 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). In both cases, Section 9.05 

was cited as authority for denying an instruction on a justification defense. See 

Banks, 955 S.W.2d at 118; Vidal, 418 S.W.3d at 911.

Banks is not binding on this court, and Vidal is distinguishable on the facts. 

In Vidal, the defendant was charged with reckless injury to a child, and there was 

no dispute that the child was an innocent third person. See Vidal, 418 S.W.3d at 

911. In this case, there was at least a fact question regarding the complainant’s 

bystander status, and appellant was charged with more than just reckless conduct. 

The jury was asked to decide whether appellant acted intentionally, knowingly, or 

recklessly. Moreover, the Court of Criminal Appeals has held that the jury may be 

instructed on the law of self-defense, even when the defendant is charged with a 

crime in which the culpable mental state is recklessness. See Alonzo v. State, 353 

S.W.3d 778, 782 (Tex. Crim. App. 2011).

During the charge conference, appellant requested an instruction on selfdefense that included a statement under Section 9.05 that the jury should convict 

him if he recklessly used deadly force against the complainant.

3 We conclude that 

appellant was entitled to the instruction, and that the trial court erred by refusing to 

give it.

 

3

The requested instruction provided as follows: “Furthermore, if you find that in using or 

threatening to use force or deadly force in self defense or defense of a third person, Jeremy 

Desha[w]n Dugar recklessly injured or killed an innocent third person, then you should find 

against the defendant on the issue of self defense and on the issue of defense of a third person.”
14

II. Did the trial court’s error result in some harm?

Not all jury-charge errors require reversal. See Reeves v. State, 420 S.W.3d 

812, 816 (Tex. Crim. App. 2013). If the defendant did not object to the erroneous 

charge, he must show that the error was “fundamental” and that he suffered 

“egregious harm” before the judgment may be reversed. Id. Conversely, if the 

defendant did object at trial, as appellant did here, then he will obtain relief if the 

record shows that he suffered “some harm.” Id.

When applying the “some harm” standard, a reviewing court must determine 

whether the defendant “suffered some actual, rather than merely theoretical, harm 

from the error.” Id. We consider several factors: (1) the jury charge as a whole, 

(2) the arguments of counsel, (3) the entirety of the evidence, and (4) any other 

information that is relevant and contained within the record. Id.

As stated above, the charge did not instruct the jury on any justification 

defenses. The jury was asked to determine only whether appellant was guilty of 

felony murder. The charge gave two alternative theories on which the jury could 

convict, and the theories stated as follows:

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

that on or about the 2nd day of May, 2010, in Harris County, Texas, 

the defendant, Jeremy Deshawn Dugar, did then and there unlawfully, 

commit the felony offense of aggravated assault by intentionally, 

knowingly or recklessly causing serious bodily injury to Tevin 

Williams by firing a firearm into the vicinity of a group of people, and 

while in the course of and furtherance of the commission of said 

offense did commit an act clearly dangerous to human life, to-wit: 

firing a deadly weapon, namely a firearm, into the vicinity of a group 

of people and did thereby cause the death of Tevin Williams; or

If you find from the evidence beyond a reasonable doubt that on 

or about the 2nd day of May, 2010, in Harris County, Texas, the 

defendant, Jeremy Deshawn Dugar, did then and there unlawfully, 

commit the felony offense of deadly conduct by intentionally, 
15

knowingly, or recklessly discharging a firearm at or in the direction of 

Tevin Williams, and while in the course of and furtherance of the 

commission of said offense, did commit an act clearly dangerous to 

human life, to-wit: by firing a deadly weapon, namely a firearm, into 

the vicinity of a group of people and did thereby cause the death of 

Tevin Williams, then you will find the defendant guilty of felony 

murder, as charged in the indictment.

The evidence left little doubt that appellant committed the actus reus. The 

bullet that struck the complainant was consistent with a bullet from appellant’s 

firearm. And, of course, appellant admitted that he discharged his weapon in the 

direction of the group of people where the complainant was ultimately shot.

Appellant freely gave his testimony in anticipation that he would receive a 

self-defense instruction. His entire defense was built around that theory, which he 

made aware to the jury before any witnesses had taken the stand. During voir dire, 

defense counsel questioned the venire panel about self-defense, and even elicited 

stories from the panel about how some had been involved in bar fights or other 

personal attacks. And during opening statements, defense counsel clearly signaled 

that self-defense was the ultimate issue in the case. Counsel began her opening 

statement as follows: “Good morning, ladies and gentlemen. Jeremy Dugar is not 

guilty of murder. He did not know the decedent in this case. What took place is a 

tragic accident that was in the course of justified self-defense.”

After the charge conference, the State was first to present its closing

arguments, and the first legal issue that the prosecutor addressed was the omission 

of a self-defense instruction. The prosecutor told the jury:

You are not going to see self-defense in this jury charge. You didn’t 

just hear the Judge read it and there is a reason for that. Because it is 

not appropriate. Because Tevin Williams was an innocent bystander. 

Because his presence there didn’t create the excuse for unlawful [sic] 
16

deadly force. Because the defendant was not entitled to self-defense 

against Tevin Williams.

Defense counsel was left to argue in her closing statements that appellant did 

not act with the requisite mens rea. Counsel argued, for instance, that appellant did 

not intend to shoot the complainant; rather, appellant intended only to scare the

group, and he was not aware that his bullets would strike anyone in particular. 

These arguments provided no answer to the portion of the charge that asked the 

more general question of whether appellant intentionally or knowingly 

“discharg[ed] a firearm at or in the direction of” the complainant, a fact which was 

conclusively established by appellant’s own testimony. The only answer that 

appellant could have provided to that portion of the charge was a justification 

defense, but in this case, none was allowed.4

The Court of Criminal Appeals has recognized that the erroneous omission 

of a confession-and-avoidance defense, such as self-defense, “is generally harmful 

because its omission leaves the jury without a vehicle by which to acquit a 

defendant who has admitted to all the elements of the offense.” See Cornet v. State, 

417 S.W.3d 446, 451 (Tex. Crim. App. 2013). That appears to have been what 

happened here. Appellant pitched this case as a question of self-defense, and he 

admitted to the conduct that formed the basis of the offense in order to receive a 

self-defense instruction. When that instruction was taken away from the jury, 

appellant was left without his only defensive theory, making his conviction a

virtual inevitability.

We cannot know for certain whether the jury would have accepted 

appellant’s claim of self-defense had that issue been submitted. As we indicated 

 

4 Defense counsel also responded to the charge of recklessness, but the argument 

essentially consisted of just a definition of that mental state. Counsel quickly shifted her 

discussion to omissions in the State’s case, like the absence of scene diagrams and videos.
17

above, appellant initially denied to police that he was involved in the shooting, 

which casts doubt on his defensive theory. Nevertheless, appellant testified to facts 

that, if believed, raised the issue of self-defense, and it is not for this court to 

decide whether that claim was credible.

The evidence shows an unfortunate sequence of events in which there seems 

to have been some level of aggression directed towards appellant. The jury 

appeared to sympathize with him. During the punishment stage, appellant 

requested a five-year sentence, the minimum for a felony in the first degree. The 

State sought no less than thirty years. The jury sentenced appellant to only twelve

years, which suggests a belief that he was not significantly blameworthy. Cf. State 

v. Warden, No. PD-1502-10, 2011 WL 1157562, at *1 (Tex. Crim. App. Feb. 9, 

2011, not designated for publication) (Keller, P.J., dissenting from the refusal of a 

petition for discretionary for review) (opining that the erroneous omission of a selfdefense instruction was probably harmless because the jury assessed punishment at 

sixty-five years’ imprisonment, indicating a belief that the defendant was 

significantly blameworthy).

To summarize, appellant had only a single defense, and it was a justification 

defense that required him to first prove the facts that comprised the charged

offense. When the trial court denied an instruction on appellant’s sole defensive 

theory, the jury was given a charge that contained no vehicle with which it could 

acquit. The evidence showed that appellant was entitled to an instruction on selfdefense, and there is at least some indication that the jury found that appellant was 

not significantly blameworthy. Having considered all of the pertinent factors, we 

conclude that the trial court’s error resulted in some harm, not merely theoretical 

harm. See Carmen v. State, 276 S.W.3d 538, 546–47 (Tex. App.—Houston [1st

Dist.] 2008, pet. ref’d) (concluding that the erroneous omission of a self-defense 
18

instruction resulted in some harm); Johnson v. State, 271 S.W.3d 359, 368–69 

(Tex. App.—Beaumont 2008, pet. ref’d) (same); Guilbeau v. State, 193 S.W.3d 

156, 161 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (same); VanBrackle v. 

State, 179 S.W.3d 708, 716–17 (Tex. App.—Austin 2005, no pet.) (same).

CONCLUSION

The trial court’s judgment is reversed and the case is remanded for a new 

trial.

/s/ Tracy Christopher

Justice

Panel consists of Justices Christopher, Donovan, and Wise.

Publish — Tex. R. App. P. 47.2(b).