No. PD-0257-15

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

GREGORY SHAWN HENLEY, Appellant

v.

THE STATE OF TEXAS, Appellee

Appeal from Tarrant County

* * * * *

STATE’S PETITION FOR DISCRETIONARY REVIEW

* * * * *

LISA C. McMINN

State Prosecuting Attorney

Bar I.D. No. 13803300

JOHN R. MESSINGER

Assistant State Prosecuting Attorney

Bar I.D. No. 24053705

P.O. Box 13046

Austin, Texas 78711

information@spa.texas.gov

512/463-1660 (Telephone)

512/463-5724 (Fax)

ORAL ARGUMENT REQUESTED

PD-0257-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 4/8/2015 2:50:43 PM

Accepted 4/15/2015 11:59:57 AM

ABEL ACOSTA

CLERK
NAMES OF ALL PARTIES TO THE TRIAL COURT’S JUDGMENT

*The parties to the trial court’s judgment are the State of Texas and Appellant,

Gregory Shawn Henley.

*The case was tried before the Honorable Jamie Cummings, Presiding Judge of

County Criminal Court No. 5 of Tarrant County, Texas.

*Counsel for Appellant at trial was Cody Lee Cofer and Lauren R. Crisera, 111 N.

Houston, Fort Worth, Texas 76102.

*Counsel for Appellant on appeal was William S. Harris, 307 West Seventh Street,

Suite 1905, Fort Worth, Texas 76102.

*Counsel for the State at trial was Kris B. Krishna, former Assistant Criminal District

Attorney, and Christopher B. McGregor, Assistant Criminal District Attorney, 401

W. Belknap St., Fort Worth, Texas 76196.

*Counsel for the State on appeal was Debra Windsor, Assistant Criminal District

Attorney, 401 W. Belknap St., Fort Worth, Texas 76196.

*Counsel for the State before this Court is John R. Messinger, Assistant State

Prosecuting Attorney, P.O. Box 13046, Austin, Texas 78711.

i
TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

GROUND FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Is a person justified in using force against another to prevent an absent

third party from possibly using unlawful force in the future?

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

APPENDIX (Opinion of the Court of Appeals)

ii
INDEX OF AUTHORITIES

Cases

Boget v. State, 74 S.W.3d 23 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . . . . . . 6

Brazelton v. State, 947 S.W.2d 644 (Tex. App.–Fort Worth 1997, no pet.) . . . . . . 8

Dewalt v. State, 307 S.W.3d 437 (Tex. App.–Austin 2010, pet. ref’d). . . . . . . . . . 8

Dobbs v. State, 434 S.W.3d 166 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . . . . 8

Henley v. State, __S.W.3d__, 2014 Tex. App. LEXIS 13562

(Tex. App.–Fort Worth 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Hughes v. State, 719 S.W.2d 560 (Tex. Crim. App. 1986) (en banc). . . . . . . . . . . 3

Isassi v. State, 330 S.W.3d 633 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . 10

Macias v. State, 13-13-00319-CR, 2015 Tex. App. LEXIS 2319

(Tex. App.–Corpus Christi Mar. 12, 2015) (mot. for r’hng filed). . . . . . . 1, 7

Murkledove v. State, 437 S.W.3d 17 (Tex. App.–Fort Worth 2014, pet. dism’d). . 8

Delaware v. Van Arsdall, 475 U.S. 673 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Statutes and Rules

TEX. PENAL CODE § 1.07(a)(48) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

TEX. PENAL CODE § 9.31(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7

TEX. PENAL CODE § 9.31(b)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

TEX. PENAL CODE § 9.32(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

TEX. PENAL CODE § 9.33.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

TEX. R. EVID. 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

iii
No. PD-0257-15

 TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS 

GREGORY SHAWN HENLEY, Appellant

v.

THE STATE OF TEXAS, Appellee

* * * * *

STATE’S PETITION FOR DISCRETIONARY REVIEW

* * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

Comes now the State of Texas, by and through its State Prosecuting Attorney,

and respectfully urges this Court to grant discretionary review of the above named

cause, pursuant to the rules of appellate procedure. 

STATEMENT REGARDING ORAL ARGUMENT

 The State requests oral argument. This case tests the limits of entitlement to

self-defense. The availability of defenses is critical, but it must be weighed against

1

the legitimate interest of the Legislature in defining them and the State’s interest in

 See also Macias v. State, 13-13-00319-CR, 2015 Tex. App. LEXIS 2319 at *18-20 (Tex.

1

App.–Corpus Christi Mar. 12, 2015) (mot. for r’hng filed), which held that a defendant is entitled

to self-defense or defense of a third person in a murder prosecution for killing someone neither he

nor the third person knew was there.

1
fair trials free from needless confusion of the issues. Conversation will assist the

Court in defining the contours of self-defense.

STATEMENT OF THE CASE

Appellant was convicted of assaulting his ex-wife when she picked up their

sons for scheduled visitation. The court of appeals held that the trial court reversibly

erred by refusing to admit testimony that would have supported appellant’s claimthat

he was justified in assaulting his ex-wife in order to prevent her then-fiancé and his

ex-stepson, neither of whom were present, from abusing his children.

STATEMENT OF PROCEDURAL HISTORY

On December 18, 2014, the court of appeals reversed appellant’s conviction and

remanded for a new trial in a published opinion. The State timely filed motions for

2

rehearing and rehearing en banc on January 20, 2015. Both were overruled on

February 5, 2015. The State was granted an extension and its petition for

discretionary review is due on or before April 8, 2015.

GROUND FOR REVIEW

Is a person justified in using force against another to prevent an absent

third party from possibly using unlawful force in the future?

Henley v. State, __S.W.3d__, 2014 Tex. App. LEXIS 13562 (Tex. App.–Fort Worth 2014). 2

2
ARGUMENT AND AUTHORITIES

“[A] person is justified in using force against another when and to the degree

the actor reasonably believes the force is immediately necessary to protect the actor

against the other’s use or attempted use of unlawful force.” “A person is justified in 3

using force. . . against another to protect a third person if: (1) under the circumstances

asthe actor reasonably believesthemto be, the actor would be justified under Section

9.31 . . . in using force . . . to protect himself against the unlawful force . . . he

reasonably believes to be threatening the third person he seeks to protect; and (2) the

actor reasonably believesthat his intervention isimmediately necessary to protect the

third person.” In essence, the Legislature places the accused “in the shoes of the

4

third person.” Would an actor be justified in assaulting someone who was using no 5

unlawful force against him but whose actions might create an opportunity for

someone else to use unlawful force against him in the future?

Facts

Appellant and his former wife, Brandy, were in a custody dispute over their

two sons. Brandy arrived to pick them up for her scheduled visitation, which is

 TEX. PENAL CODE § 9.31(a).

3

 TEX. PENAL CODE § 9.33. 4

 Hughes v. State, 719 S.W.2d 560, 564 (Tex. Crim. App. 1986) (en banc). 5

3
supervised by her mother at her mother’s house. Appellant initially refused to 6

release them and wanted to talk, but put them in Brandy’s car when she called the

police. After she was told by the dispatcher to wait for police to arrive, she ended

7

the call. Appellant then ripped off her car door handle. When Brandy opened the

8 9

door to pick it up, appellant dragged her out of the car by her hair. Once on the

10

ground, appellant got on top of her with his knees on her shoulders, punched her face

with both fists, and banged her head against the concrete.11

 The jury heard that Brandy’s visitation had not always been supervised, and

that appellant was agitated that day and wanted to speak with Brandy instead of

releasing the children to her. Appellant wanted them to know more. Outside the

12

presence of the jury, Brandy acknowledged that visitation had to be supervised

because she would not leave Douglas, her then-fiancé, whom one of her sons accused

of choking him in August of 2011. Brandy still lived with Douglas, and later

13

 5 RR 80. 6

 5 RR 64, 81. 7

 5 RR 65. 8

 5 RR 65. 9

 5 RR 65-67. 10

 5 RR 67-68. 11

 5 RR 81-84. 12

 5 RR 86, 90. CPS found the accusation not to be true. 5 RR 90. The trial offense was 13

alleged to have occurred March 3, 2012, at least six months after the alleged choking incident.

4
married him. Brandy acknowledged that Douglas’s ex-stepson sexually assaulted 14

her sons while in her care and that there was a court order prohibiting contact

between him and her sons. Appellant argued this testimony was admissible for two 15

reasons. First, “clearly, my client is reacting to the abuse that had occurred before

that was not discovered by Brandy while she is in the home with this kid. I think that

creates a legitimate concern for the safety of these kids . . . .” He added, “[Brandy’s 16

mother’s] statement of my client’s character for being someone that becomes irate

leavesthe jury with a misunderstanding and incomplete impression about my client’s

state of mind and the reason that he may become irate, which is that his children have

been abused while in [Brandy’s] care.” The trial court denied his requests. 

17 18

According to the court of appeals, both the alleged errors and resulting harm

“overlap.” “The trial court erred by denying Appellant the right to confront and

19

cross-examine Brandy and her mother to further show his state of mind and further

 5 RR 86. 14

 5 RR 87, 89. 15

 5 RR 99. 16

 5 RR 102. 17

5 RR 102, 103. Appellant testified outside the presence of the jury “[f]or the limited purpose 18

of allowing the [trial court] to reconsider its ruling . . . .” 5 RR 104-113; slip op. at 4-9. Because

the trial court did not change its ruling, appellant did not testify. 5 RR 121-22, 124.

 Slip op. at 18. 19

5
develop his justification defense.” Regarding harm, “Justifying his conduct based

20

on the defense of a third party was Appellant’s entire defense[,]” and he was

prevented from presenting evidence of it “[a]t every turn.” The court of appeals’ 21

analysis is thus premised entirely on appellant’s entitlement to an instruction on

defense of a third person. If he was not entitled, then the trial court acted within its

discretion to exclude largely irrelevant, unfairly prejudicial testimony.

22

Analysis

Appellant’s entitlement depends on the definitions of “another,” “the other,”

“immediately necessary,” and “unlawful force,” none of which are defined by statute

or by this Court. 

23

“The other”

As one court of appeals has recently stated, the language of the self-defense

provisions “logically implies that ‘the other’ who uses or attempts to use unlawful

force as indicated in subsection (a) of section 9.31 is ‘the person against whom the

 Slip op. at 18. 20

 Slip op. at 21. 21

See TEX.R.EVID. 403 (allowing the exclusion even of relevant evidence if its probative value 22

is substantially outweighed by the danger of unfair prejudice or confusion of the issues).

 This Court has addressed “what it means to direct force ‘against’ another[,]” but did not

23

define “another” in doing so. Boget v. State, 74 S.W.3d 23, 27 (Tex. Crim. App. 2002).

6
force was used.’” This makes sense, as the presumption of reasonableness of the

24

actor’s belief is based, in part, on the actor’s knowledge or reason to believe “that the

person against whom” the force or deadly force was used was doing one or more

enumerated acts. In this case, appellant believed that the unlawful force fromwhich 25

it was immediately necessary to protect his sons came from Douglas and his exstepson. And while he agreed that “being in [Brandy’s] care was a danger to them,” 26

and said Brandy was dismissive of his concerns, he alleged no conduct on her part 27

directed at the boys. Yet Brandy was the one assaulted, not Douglas or his exstepson; “another” and “the other” do not match. The plain language of section 9.31

logically prohibits appellant’s claimed justification defense. 

“Immediately necessary”

No force against Douglas and his ex-stepson was “immediately necessary”

because there were no allegations of present, or even recent, misconduct by them. 

They were not even there. Cases dealing with necessity are helpful. “[E]ven a

defendant’s sincere belief that his or her conduct is immediately necessary to avoid

imminent harm is unreasonable as a matter of law if the undisputed facts demonstrate

Macias v. State, 13-13-00319-CR, 2015 Tex. App. LEXIS 2319 at *18 (Tex. App.–Corpus 24

Christi Mar. 12, 2015) (mot. for r’hng filed) (not designated for publication). 

 TEX. PENAL CODE §§ 9.31(a)(1), 9.32(b)(1).

25

 5 RR 108-09. 26

 5 RR 110-12. 27

7
a complete absence of ‘immediate necessity’ or ‘imminent harm’ as those concepts

are defined in the law.” This language has been approved by this court of appeals

28

but ignored in this case. Instead of addressing the obvious problems with the

29

speculative threat posed by absent parties, the court of appeals took a different tack:

it held that the perceived danger lay in Brandy driving away, which was imminent.30

“Unlawful force”

The act of departing is not a use of force as that term has been defined by this

Court. It certainly was not directed against her sons. In fact, the only evidence 31

regarding the children at the time of the assault is that, “They were screaming, telling

[appellant] to stop, running around him hitting [Brandy].” Even if driving away 32

could be considered “force,” there was nothing “criminal or tortious” about it; she

was attempting to pick up her children on her scheduled day with her mother, who is

 Dewalt v. State, 307 S.W.3d 437, 454 (Tex. App.–Austin 2010, pet. ref’d). 28

 Murkledove v. State, 437 S.W.3d 17, 25 (Tex. App.–Fort Worth 2014, pet. dism’d) (citing 29

Dewalt); Brazelton v. State, 947 S.W.2d 644, 648-49 (Tex. App.–Fort Worth 1997, no pet.) (“A

defendant’s belief that conduct was immediately necessary to avoid imminent harm may be deemed

unreasonable as a matter of law, however, if undisputed facts demonstrate a complete absence of

evidence of immediate necessity or imminent harm.”).

 Slip op. at 16; see also Concurring op. at 4 (“The situation—as well as the danger—was 30

ongoing. The boys were sitting in Brandy’s vehicle, and she was refusing to listen to Appellant’s

concerns and was about to drive away with them.”). 

 See Dobbs v. State, 434 S.W.3d 166, 171 (Tex. Crim. App. 2014) (adopting the meaning 31

“violence, compulsion, or constraint exerted upon or against a person or thing,” and “violence or

such threat or display of physical aggression toward a person as reasonably inspires fear of pain,

bodily harm or death”) (citations omitted). 

 5 RR 69. 32

8
a court-ordered supervisor for the visitation. Again, there was no testimony that 33

appellant feared Brandy was actually doing anything to her sons. 

Conclusion

A defendant is not entitled to a defense simply because he testifies to that

belief, even if his attorney relies on entitlement in opening statements. There are 34

certainly situations in which a defendant’s claims are wholly unworthy of belief but

the issue remains one for the jury. This is not such a case. Appellant assaulted his

ex-wife because she was about to leave with the children he placed in her car

moments before, on the basis that her leaving might create a future opportunity for

35

persons not present to harm them. This is not weak, contradicted, or impeached

relevant testimony that is deserving of evaluation by a jury. Rather, it presents a

theory that ignores the plain language of the statute by twisting the meaning of

“another,” “other,” “immediately necessary,” and “unlawful force” beyond all

recognition. Appellant may have had an explanation, but he had no statutory

justification. He was not entitled to defense of a third person as a matter of law. 

 See TEX. PENAL CODE § 1.07(a)(48) (“‘Unlawful’ means criminal or tortious or both and 33

includes what would be criminal or tortious but for a defense not amounting to justification or

privilege.”).

 See slip op. at 14-15. 34

 It should be noted that his act of placing their sons in Brandy’s care and then stepping into 35

their shoes to assault her to prevent her from leaving with them creates a bizarre provocation

situation that would have been extremely difficult to explain to the jury. See TEX. PENAL CODE §

9.31(b)(4). 

9
As a result, the trial court did not abuse its discretion in denying further crossexamination. “[T]rial judges retain wide latitude insofar asthe Confrontation Clause

is concerned to impose reasonable limits on such cross-examination based on

concerns about, among other things, harassment, prejudice, confusion of the issues,

. . . or interrogation that is repetitive or only marginally relevant.” The jury was 36

aware that there was a custody dispute and could infer that Brandy had done

something to warrant supervised visitation. This was sufficient for whatever

legitimate purpose it served. The excluded testimony was relevant, at best, to

punishment; its only value in the guilt phase was to turn jurors against the victim

based on her parenting instead of focusing on the evidence regarding the offense. 

“Although jurors have the raw power to return a verdict that flies in the face of the

facts and the law, they do not have a legal right to do so.” “Jury nullification is not

37

authorized by law,” and a trial court should not be required to enable it by admitting 38

testimony to support inapplicable defenses.

 Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). 36

 Isassi v. State, 330 S.W.3d 633, 640 (Tex. Crim. App. 2010). 37

 Id.

38

10
PRAYER FOR RELIEF

WHEREFORE, the State of Texas prays that the Court of Criminal Appeals

grant this Petition for Discretionary Review, and that the decision of the Court of

Appeals be reversed. 

 Respectfully submitted,

 LISA C. McMINN

 State Prosecuting Attorney

 Bar I.D. No. 13803300

 /s/ John R. Messinger 

 JOHN R. MESSINGER

 Assistant State Prosecuting Attorney

 P.O. Box 13046

 Austin, Texas 78711

 John.Messinger@SPA.Texas.gov

 512/463-1660 (Telephone)

 512/463-5724 (Fax)

11
CERTIFICATE OF COMPLIANCE

The undersigned certifies that according to the WordPerfect word count tool

the applicable portion of this document contains 3,049 words.

 /s/ John R. Messinger 

 JOHN R. MESSINGER

 Assistant State Prosecuting Attorney

CERTIFICATE OF SERVICE

The undersigned certifiesthat on this 8 day of April, 2015, the State’s Petition

th

for Discretionary Review was served electronically through the electronic filing

manager or e-mail on the parties below. 

Debra Windsor

Assistant Criminal District Attorney

401 W. Belknap St.

Fort Worth, Texas 76196

Dwindsor@tarrantcountytx.gov

William S. Harris

307 West Seventh Street, Suite 1905

Fort Worth, Texas 76102

wmsharris.law@sbcglobal.net

 /s/ John R. Messinger 

 JOHN R. MESSINGER

 Assistant State Prosecuting Attorney

12
APPENDIX
COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00178-CR

GREGORY SHAWN HENLEY APPELLANT

V.

THE STATE OF TEXAS STATE

----------

FROM COUNTY CRIMINAL COURT NO. 5 OF TARRANT COUNTY

TRIAL COURT NO. 1277030

----------

OPINION

----------

A jury convicted Appellant Gregory Shawn Henley of assault causing 

bodily injury to a family member, his former wife Brandy. The trial court 

sentenced him to 200 days’ confinement in the Tarrant County Jail. In two 

issues, Appellant argues that (1) the trial court abused its discretion by excluding 

evidence showing that his conduct was justified as an act in defense of a third 

party and (2) the trial court improperly limited his right to cross-examine and 
2

confront the witnesses against him by excluding extrinsic proof of Appellant’s 

statements to the complainant and her mother. Because we hold that the trial 

court reversibly erred by preventing Appellant from presenting his defense and 

by improperly limiting his right to confront and cross-examine the witnesses 

against him, we reverse the trial court’s judgment and remand this cause to the 

trial court.

Summary of Facts

In 2012, Appellant and Brandy were involved in a custody case regarding 

their two sons, J.H. and S.H. The two sons lived with Appellant. The family court 

ordered that Brandy’s visits with the children be supervised and that her thenfiancé (now husband) Douglas have no contact with the two sons. These orders 

resulted from allegations that in 2011, the two boys had been sexually abused by 

Douglas’s stepson, A.G. Brandy’s mother was designated as someone who 

could supervise Brandy’s visits with the children.

On March 3, 2012, Brandy and her mother drove to Appellant’s home to 

pick up the two children for Brandy’s visit. Appellant told Brandy that he wanted 

to talk to her, but she refused to speak to him other than to tell him to bring the 

children out to the car. Appellant did not initially bring the children to the car, but 

after Brandy dialed 9-1-1, he brought the two boys and put them in her car. 

Brandy told the 9-1-1 operator that she wanted to make a complaint, and the 

operator told her to stay until a police officer arrived.
3

After Brandy continued to refuse to speak to him, Appellant grabbed the 

door handle of the driver’s side door and pulled on it, breaking it. Brandy opened 

the door to pick up the door handle, and Appellant pulled her from the car by her 

hair. Appellant dragged her to the ground, held her down with his knees, 

punched her in the face, and banged her head on the ground. Appellant then got 

up and walked to his driveway, made a phone call on his cell phone, and drove 

away in his vehicle. Brandy called 9-1-1 again to report the incident.

At trial, Appellant sought to introduce evidence about his motivation for his 

actions. The trial court allowed him to elicit testimony from Brandy outside the 

jury’s presence. Brandy acknowledged in questioning by Appellant’s counsel 

that the children had been sexually abused by Douglas’s stepson, A.G., that one 

of her sons had made an allegation that Douglas had choked them, and that she 

had lied to the family court about the fact that she was still living with Douglas.

The State objected that allegations of acts that took place in August 2011 

were too remote in time to be considered relevant to Appellant’s acts on March 3, 

2012. It also argued that, to the extent that Appellant wanted to introduce 

testimony about statements that one of the sons had made in counseling the 

week before March 3, 2012, those statements were also too remote. The State

argued that for defense of a third person, “there has to be the immediate and 

necessary intervention,” and “[o]ne week prior is not immediate.” The trial court 

ruled that based on the evidence it had heard to that point, it was “not going to 

allow [Appellant] to go into that.”
4

Defense counsel then argued that the testimony of Brandy’s mother that 

Appellant “becomes irate and that is the reason that they didn’t want to engage 

with him” left the jury “with a misunderstanding and incomplete impression about 

[his] state of mind and the reason that he may become irate, which is that his 

children have been abused while in her care.” Defense counsel argued that he 

“should be able to clear that up by going into the reason [that Appellant] has 

been irate in the past.” The trial court excluded the evidence.

The trial court allowed Appellant to testify outside the presence of the jury 

for purposes of making a bill and allowing the trial court to hear evidence to 

reconsider its ruling:

Q. Now, you said that the conditions—or explain to the Court 

what it is that happened to the boys that gave you such 

concern.

A. The week prior to her showing up to pick up the boys, we were 

in counseling, and I had S.H.1 on my arm because he wanted 

me in the counseling with him to go through everything. And 

throughout the—S.H. coming out—S.H. was explaining how 

A.G. would make him and his brother sleep with each other in 

front of him and—

Q. Was that new information?

A. That was new at that time.

Q. And how—in relation to March 3rd, when did that conversation 

happen?

 1

Throughout the quoted passages in this opinion, the children’s names 

have been replaced with initials.
5

A. I’m not sure if it was the Thursday before or the Thursday 

before. It was one of the Thursdays before. It was the first 

time I had seen her since the allegation. More allegations had 

come out.

Q. And did S.H. say anything that gave you concerns about 

whether Brandy knew about the allegation?

A. S.H. said that his brother had told his mom.

THE COURT: I’m sorry. What?

A. He had—S.H. said that his brother had told his mom, which 

stayed in line with what J.H. had said all along.

Q. What do you mean what J.H.—what had J.H. said all along?

A. Ever since the allegations were first made, J.H. has always 

said that “I told my mommy about what A.G. was doing and 

that she told me that her and Douglas would take care of it.”

Which I don’t know if you know ADD kids, but to 

continually hold the same story for months and months on end 

is not—not a normal situation.

Q. And so that’s what J.H. has maintained the entire time; is that 

right?

A. Yes.

Q. But in this counseling session was the first time S.H. had told 

you that his mother knew about it?

A. Yes.

Q. And so her picking the children up this next time was the first 

time she was going to take possession of the children after 

S.H. had corroborated what you had said?

A. Yes, sir.

Q. Did you also have any concerns about—and, of course, when 

we’re talking about that, we’re talking about the abuse that 

A.G. perpetrated; is that right?

A. Yes, sir.
6

Q. Did you have any concerns about whether Douglas 

abused your boys?

A. Yes, sir.

Q. Explain to the Court your concerns about that.

A. The end of July, right before Brandy went on—right 

before her summer was over, I was picking up the boys 

every Thursday and spending Thursday with them, and 

on the way home—because throughout the whole

relationship of Brandy and Douglas, I always got weird 

stories. So I always checked with my boys to make sure 

there wasn’t anything strange going on.

And S.H. said that he was being choked by 

Douglas. J.H. corroborated and said, yeah, that’s 

happening.

And I kind of got really upset and I held off. We 

drove a little bit longer, and then I talked to them again, 

and they were like, yeah. And then I was upset. I called 

their mother to talk to her about it, and she denied it like 

everything else.

Then the next morning, after everything was a little 

bit calmer, I was calmer, I started talking to S.H. S.H.

told me—I was like: Show me exactly what choking is, 

because I didn’t want him to be confusing it with 

anything else.

And the choking went from—he put his hand on my 

throat, and that’s when I knew what he was talking 

about.

Q. S.H. put his hand on your throat?

A. Yes.

Q. Now, when you called Brandy about this, was she 

dismissive? You said she didn’t believe—

A. Yeah, she said it didn’t happen.
7

Q. And was that the same attitude she’s had about the 

abuse?

A. Pretty much, yes.

Q. And—kind of all of that experience you have had with 

Brandy, Douglas, and A.G., did that contribute to your 

motivation on March 3rd?

A. I believe so, yes.

Q. And did you have a conversation with Brandy on March 

3rd?

A. Yes.

Q. And when she came to pick up the boys, did you talk to 

her about anything?

A. Yes.

Q. What did you talk to her about, or what did you try to talk 

to her about?

A. I tried to talk to her about what was going on with S.H.

Q. What do you mean what was going on with S.H.?

A. What he was coming—what he was coming out with in 

counseling, about having to be forced to have sex with his 

brother.

Q. So you tried to tell her what he said in counseling whenever 

she came to pick them up?

A. Yes.

Q. And how did she respond to that?

A. Just dismissed it.

Q. And did you just tell her once, and she said, I don’t want to talk 

about it, or did you try to talk to her?

A. I kept trying to talk to her. And then that’s when she went and 

said—asked me for the boys, and I said: No, you’re not 
8

getting the boys. And that’s when she called the police the 

first time.

Q. And then did you go get the boys at that point?

A. I went to the door and hollered at them to come out.

Q. After the boys were in the car, did you continue to try to talk to 

Brandy and her mother, Wendy?

A. Yeah. I started pleading with them, and I went over the whole 

J.H. knows, S.H. knows, all the ordeal with how it all turned 

out, how this wasn’t a one-time deal, that S.H. had said it 

happened in the middle of the day while you were watching 

TV, how can you do this, how can you continue on this path.

Q. And Wendy, that was there, was she responsive to what you 

were telling?

A. No. She just totally ignored it like it wasn’t anything.

Q. But she was the person that was supposed to be supervising 

the visits?

A. Yes.

Q. And so did that contribute to your belief that they were going 

to put your boys in a dangerous situation?

A. Yes.

Q. Do you believe that your children being in their mother’s care 

was a danger to them?

A. Yes.

. . . .

Q. And I think you kind of said this in the course of one of 

the answers, but I want to be clear.

Was—the abuse that the boys reported to you, 

was it one time, or was it ongoing?

A. That I heard about the abuse?
9

Q. Yes, what the boys reported to you.

A. It was a slow process through counseling. And I never 

talked to them outside of the counseling, because that’s 

what our court order was, but the boys always wanted 

me to go in to counseling with them.

Q. What I’m asking is, as far as you know, did the abuse 

occur—the sexual abuse occur one time, or did it occur 

multiple times?

A. It occurred multiple times.

Q. And all of those times during—while they were in 

Brandy’s care?

A. Yes.

Q. And your actions on March 3rd were to defend your boys 

from what you perceived as an imminent threat to the 

boys?

A. Yes.

In his testimony outside the jury’s presence, Appellant stated that when 

Brandy came to pick up the children on March 3, he believed that she was going 

to violate the family court’s order. He stated that in counseling the week before, 

S.H. said that J.H. had told Brandy about the sexual abuse during the time period 

it was happening, corroborating statements that J.H. had previously made. 

Appellant said that the counseling session was the first time that S.H. had said 

that his mother had known about the abuse, and March 3 was the first time that 

Appellant had seen her since that counseling session. Appellant stated that J.H. 

also corroborated his brother’s statements that Douglas had choked them. When 

Appellant called Brandy to ask her about the boys’ allegations, she denied them.
10

Appellant stated that on March 3, he tried to talk to Brandy about S.H.’s 

statements, but she refused. Neither Brandy nor her mother would talk to him 

about it, and he believed that his children would be in danger while in Brandy’s 

care.

At the conclusion of Appellant’s testimony outside the jury’s presence, 

Appellant’s counsel argued that the evidence that

• the “abuse was ongoing,”

• Appellant learned from S.H. for the first time the week before March 

3 that Brandy knew about the abuse,

• Brandy admitted that she lied to the family court, and

• she and her mother refused to talk to Appellant about S.H.’s 

statements

all “go[] to the reasonableness of [Appellant] and the actions that he took to keep 

her from taking th[e] children away.”

The State argued that the information had been learned in counseling the 

week before and that “if it was a week prior, . . . there’s no immediacy there.”

The trial court declined to change its ruling that the evidence did not raise the 

issue of defense of a third party.

The defense also argued that the evidence was admissible to show 

Appellant’s then existing state of mind:

And the statement of my client’s character for being someone 

that becomes irate leaves the jury with a misunderstanding and 

incomplete impression about my client’s state of mind and the 

reason that he may become irate, which is that his children have

been abused while in her care.
11

And I believe that Ms. Kennedy’s statement elicited by the 

Government’s direct examination has left the jurors with a 

misunderstanding, and I should be able to clear that up by going into 

the reason he has been irate in the past.

After further discussion, defense counsel re-urged his request to present 

the evidence before the jury:

Also, I would reurge my bill with regard to [Appellant’s]

testimony and the above aforementioned that . . . limiting his right to 

elicit complete testimony before the jurors violates his due process 

and due course of law rights under the Texas Constitution, Article 1, 

Section 19; Texas Code of Criminal Procedure 1.04; and U.S. 

Constitution, Fifth Amendment, Fourteenth Amendment.

The trial court denied this request to show Appellant’s then-existing state 

of mind and to correct any misleading characterization of Appellant’s state of 

mind. The trial court had also refused to allow Appellant to disclose the reason 

Brandy’s access to the children was limited to supervised visitation.

Appellant did not testify before the jury.

The prosecutor argued in the State’s closing argument, “What excuse? 

Did you hear any? Of course not, because there is no excuse.”

Analysis

Both of Appellant’s issues complain of the exclusion of evidence. We 

review a trial court’s decision to exclude evidence for an abuse of discretion.

2

 A 

 2

Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).
12

trial court does not abuse its discretion as long as the decision to exclude the 

evidence is within the zone of reasonable disagreement.3

The abuse of discretion standard, however, is viewed in light of and 

subject to constitutional protections. The Supreme Court of the United States 

reminds us that while states “have broad latitude under the Constitution to 

establish rules excluding evidence from criminal trial,” “[t]his latitude . . . has 

limits. . . . [T]he Constitution guarantees criminal defendants a meaningful 

opportunity to present a complete defense.”

4

 Further, “an essential component 

of procedural fairness is an opportunity to be heard. That opportunity would be 

an empty one if the State were permitted to exclude competent, reliable 

evidence . . . when such evidence is central to the defendant’s claim of 

innocence.”5

 Thus, a trial judge whose evidentiary ruling undermines or 

disregards a constitutional protection abuses his discretion; such a ruling cannot 

be within the zone of reasonable disagreement.6

 3

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. 

on reh’g).

4

Holmes v. South Carolina, 547 U.S. 319, 324, 126 S. Ct. 1727, 1731

(2006) (citations and internal quotation marks omitted).

5

Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146–47 (1986)

(citations and internal quotation marks omitted).

6

See Holmes, 547 U.S. at 324, 126 S. Ct. at 1731; Crane, 476 U.S. at 

689–91, 106 S. Ct. at 2146–47; State v. Ballard, 987 S.W.2d 889, 893 (Tex. 

Crim. App. 1999) (“Misapplication of the law to the facts of a particular case is a 

per se abuse of discretion.”).
13

Defense of a Third Party

In his first issue, Appellant contends that the trial court reversibly erred by 

refusing to allow him to introduce evidence of why he felt his attack on Brandy 

was justified as an act in defense of a third party. Appellant correctly argues that 

the elements of that defense are that (1) under the circumstances as the actor 

reasonably believed them to be, (2) the actor would be justified in using force 

under section 9.31 of the penal code to protect himself, and (3) the actor 

reasonably believes that his intervention is immediately necessary to protect the 

third person.7

 Defense of a third person is a confession and avoidance defense.8 

The defendant must admit the elements of the offense and then seek to justify 

his actions.9

 The defendant’s testimony alone may be sufficient to raise a 

defensive theory requiring an instruction in the charge.10 The defendant must 

admit to the conduct—act and culpable mental state—of the charged offense to 

be entitled to the instruction.11 The self-defense and defense-of-third-person 

 7

Tex. Penal Code Ann. § 9.33 (West 2011); see id. § 9.31.

8

Campos v State, No. 13-11-00705-CR, 2014 WL 895515, at *9 (Tex. 

App.—Corpus Christi Mar. 6, 2014, pet. ref’d) (mem. op., not designated for 

publication) (citing Cornet v. State, 417 S.W.3d 446, 451–52 (Tex. Crim. App. 

2013), and Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007), cert. 

denied, 553 U.S. 1059 (2008)).

9

Id.

10Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997).
14

statutes are not limited to particular crimes; they simply provide that a person’s 

use of force or deadly force is justified if certain circumstances are met.12

The Texas Court of Criminal Appeals instructs us that “the focus of the 

defense-of-third-persons defense is upon what the actor reasonably believes 

concerning the situation of the third person.”13 If a defendant reasonably 

believed that the person he sought to protect was legitimately defending himself, 

then the defendant would be entitled to the presumption that his belief that the 

force was immediately necessary was reasonable,14 even if his belief was 

actually incorrect.

15 Thus, if the evidence is admitted, the defense must be 

submitted to the jury. The trial court does not decide that the defense will not be 

successful when determining whether to admit the evidence of the defense. It is 

the jury alone who determines whether a defendant has successfully proved his 

defense.

Here, Appellant presented his theory of defense of a third party in voir dire 

and admitted to the elements of the offense of assault of a family member

 11Juarez v. State, 308 S.W.3d 398, 399 (Tex. Crim. App. 2010) (“The 

confession and avoidance doctrine applies to the necessity defense.”).

12Morales v. State, 357 S.W.3d 1, 7 (Tex. Crim. App. 2011).

13Id. at 8.

14Tex. Penal Code Ann. § 9.31.

15Morales, 357 S.W.3d at 8.
15

through his opening statement but was not allowed to present his justification 

defense. At that point, he was stuck in an impossible situation. He upheld the 

first portion of his burden by admitting to the elements of the crime alleged but 

was precluded from offering the evidence to show justification. Instead, the jury 

heard the evidence that Appellant, after assaulting the complainant for no 

apparent reason, got into his car and left the scene, leaving the children with her.

Appellant was entitled to present his defense.

In Fielder v. State, Fielder attempted to present her battered-spouse 

defense.16 Just as defense of a third party is central to Appellant’s defense here, 

the battered-spouse defense was the essence of Fielder’s defense.17 The Texas 

Court of Criminal Appeals reversed Fielder’s conviction, holding that the trial 

court reversibly erred by refusing to allow her to offer the evidence.18

In the case before us, the State argued that the evidence of the 

relationship between Appellant and his former wife was too remote to support a 

finding of sudden passion or the immediate need to defend their sons. The State 

here argued that because Appellant had learned of the sexual abuse the 

previous year and because he had learned of additional abuse the week before, 

there was no immediacy. He could only have acted in defense of his children a 

 16756 S.W.2d 309, 317 (Tex. Crim. App. 1988).

17Id. at 319.

18Id. at 320–21.
16

week before when the outcry occurred. The State’s argument, however, is 

flawed. An immediate response of sudden passion arising from adequate cause 

is the test of what used to be voluntary manslaughter and is now a punishment 

issue in a murder prosecution.19 Sudden passion is not an element of selfdefense or defense of another. The need for immediate action in defense of 

another does not rest on sudden passion but, rather, on the need to act 

immediately to protect the other person.

Appellant attempted to talk to Brandy about the children’s safety. Brandy 

and her mother refused to discuss his concerns. The danger that Appellant 

perceived was not the danger of injury from the counseling that the children had 

participated in the previous week. The danger that Appellant perceived lay in the 

children’s leaving his home with Brandy. That perceived danger was immediate.

Appellant attempted to argue that the danger lay in allowing the children to 

go with his former wife because of the history of sexual and physical abuse. 

Appellant made a proper showing of the evidence that he sought to present to 

the jury. It was both admissible and probative. We therefore hold that the trial 

court abused its discretion by excluding the evidence and erred by refusing to 

allow Appellant to present his defense.

 19Wooten v. State, 400 S.W.3d 601, 604–05 (Tex. Crim. App. 2013).
17

Denial of Right of Confrontation

Appellant contends that the State was allowed to present him as an 

irrationally angry man. As part of his attempt to present his defense of a third 

person, Appellant tried to explain to the jury the relationship among the parties, 

his concerns for his children, his state of mind, and the reasons for his actions. 

He was not permitted to do so. In his second issue, Appellant argues that the 

trial court improperly limited his right to cross-examine and confront the 

witnesses against him by not allowing him to question Brandy and her mother 

about the new allegations that had emerged during the children’s counseling 

concerning abuse during Brandy’s times of possession. We agree and hold that 

the trial court so erred.

Appellant correctly argues that denial of the right of confrontation and 

cross-examination is an error of constitutional magnitude.20 And the trial court’s 

error here was exacerbated by the State’s jury argument. The Texas Court of 

Criminal Appeals has recognized that occasionally

erroneous exclusion of a defendant’s evidence of . . . state of mind 

at the time of the [conduct] amount[s] to constitutional error because 

the evidence was critical to [the] defense:

[T]he trial court’s exclusion of [the defendant’s selfdefense evidence] was not mere evidentiary error. It 

was of constitutional dimension. The ruling went to the 

heart of the defense. Petitioner’s sole defense was that 

she killed her husband in an honest belief that she 

 20See Davis v. Alaska, 415 U.S. 308, 320, 94 S. Ct. 1105, 1112 (1974).
18

needed to do so to save her life. The success of the 

defense depended almost entirely on the jury’s believing 

petitioner’s testimony about her state of mind at the time 

of the shooting. . . . The trial court precluded petitioner 

from testifying fully about her state of mind and from 

presenting evidence that would have corroborated her 

testimony. Because this evidence was critical to her 

ability to defend against the charge, we hold that the 

exclusion of this evidence violated petitioner’s clearly 

established constitutional right to due process of law—

the right to present a valid defense as established by 

the Supreme Court in Chambers [v. Mississippi] and 

Washington [v. Texas].

21

Similarly, Appellant in the case now before this court had received 

information that, contrary to prior representations, Brandy knew about the sexual 

and physical abuse but neither stopped it nor told the truth when asked about it 

by the family court judge. The trial court abused its discretion by excluding the 

evidence and in doing so, erred by denying Appellant the right to confront and 

cross-examine Brandy and her mother to further show his state of mind and 

further develop his justification defense.

Harm

Just as the trial court’s errors of excluding Appellant’s testimony justifying 

his actions and preventing him from cross-examining Brandy and her mother 

about the bases for his actions and his state of mind overlap, so does the harm 

caused by both errors. The right to present a complete defense is rooted in the 

constitutional right to due process under both the Fifth and Fourteenth 

 21Potier v. State, 68 S.W.3d 657, 663–64 (Tex. Crim. App. 2002) (quoting 

DePetris v. Kuykendall, 239 F.3d 1057, 1062–63 (9th Cir. 2001)).
19

Amendments to the United States Constitution; the right to due course of law 

under article one, section nineteen of the Texas Constitution; the Sixth 

Amendment right to confront and cross-examine witnesses; and the same right 

under article one, section ten of the Texas Constitution.22 The Texas Court of 

Criminal Appeals has reminded us of the importance of a defendant’s being 

allowed to present a complete defense, stating,

In Holmes v. South Carolina, the Supreme Court stated, 

“Whether rooted directly in the Due Process Clause of the 

Fourteenth Amendment or in the Compulsory Process or 

Confrontation Clauses of the Sixth Amendment, the Constitution 

guarantees criminal defendants ‘a meaningful opportunity to present 

a complete defense.’” In the case before us, the trial court’s ruling 

disallowing cross-examination of the State’s expert witness violated 

the defendant’s fundamental rights to a fair trial. The Supreme Court 

said in Pointer v. Texas:

There are few subjects, perhaps, upon which this Court 

and other courts have been more nearly unanimous 

than in their expressions of belief that the right of 

confrontation and cross-examination is an essential and 

fundamental requirement for the kind of fair trial which is 

this country’s constitutional goal. Indeed, we have 

expressly declared that to deprive an accused of the 

right to cross-examine the witnesses against him is a 

denial of the Fourteenth Amendment’s guarantee of due 

process of law.

Because the denial of the right to present a defense is a 

violation of due process and results in constitutional error, we now 

turn to the harm analysis.23

 22U.S. Const. amends. V, VI, XIV; Tex. Const. art. I, §§ 10, 19.

23Holmes v. State, 323 S.W.3d 163, 173 (Tex. Crim. App. 2009) (op. on 

reh’g) (citations omitted).
20

The deprivation of the meaningful right to present a defense is 

constitutional error.24 We therefore apply rule 44.2(a).25 The question is whether 

both errors were harmless beyond a reasonable doubt.26 In applying the 

“harmless error” test, our primary question is whether there is a “reasonable 

possibility” that the error might have contributed to the conviction.27

Our harmless error analysis should not focus on the propriety of the 

outcome of the trial; instead, we should calculate as much as possible the 

probable impact on the jury in light of the existence of other evidence.28 We 

“should take into account any and every circumstance apparent in the record that 

logically informs an appellate determination whether ‘beyond a reasonable doubt 

(that particular) error did not contribute to the conviction or punishment,’” and if 

applicable, we may consider the nature of the error, the extent that it was 

emphasized by the State, its probable collateral implications, and the weight a 

 24Holmes, 547 U.S. at 324, 126 S. Ct. at 1731; Washington v. Texas, 388 

U.S. 14, 19, 87 S. Ct. 1920, 1923 (1967); Holmes, 323 S.W.3d at 173–74.

25Tex. R. App. P. 44.2(a).

26See Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997).

27Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on 

reh’g), cert. denied, 526 U.S. 1070 (1999).

28Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000), cert. 

denied, 532 U.S. 944 (2001).
21

juror would probably place on the error.29 This requires us to evaluate the entire 

record in a neutral, impartial, and even-handed manner, not “in the light most 

favorable to the prosecution.”30

In the case now before this court, Appellant attempted to justify his conduct 

to the jury. He tried to explain to the jury the source of his anger and his concern 

for his children. His claim that he was acting to protect his children was his 

defense. Moreover, the State made Appellant’s state of mind an issue in the 

case, creating the impression that his anger was irrational and baseless. The 

jury heard the evidence that Appellant, after assaulting the complainant, got into 

his car and left the scene, leaving the children with her. 

Justifying his conduct based on the defense of a third party was 

Appellant’s entire defense. At every turn, he was barred from presenting 

evidence of his defense to the jury. 

After carefully reviewing the record and performing the required harm 

analysis under rule 44.2(a), we cannot say that the trial court’s errors did not 

 29Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011) (quoting 

Tex. R. App. P. 44.2(a)).

30Harris v. State, 790 S.W.2d 568, 586 (Tex. Crim. App. 1989), disagreed 

with in part on other grounds by Snowden, 353 S.W.3d at 821–22 (citation and 

internal quotation marks omitted).
22

contribute to Appellant’s conviction or punishment.31 We therefore sustain 

Appellant’s two issues.

Conclusion

Having sustained Appellant’s two issues, we reverse the trial court’s 

judgment and remand this case to the trial court.

/s/ Lee Ann Dauphinot

LEE ANN DAUPHINOT

JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

GARDNER, J., filed a concurring opinion.

PUBLISH

DELIVERED: December 18, 2014

 31See Tex. R. App. P. 44.2(a).
COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00178-CR

GREGORY SHAWN HENLEY APPELLANT

V.

THE STATE OF TEXAS STATE

----------

FROM COUNTY CRIMINAL COURT NO. 5 OF TARRANT COUNTY

TRIAL COURT NO. 1277030

----------

CONCURRING OPINION

----------

I cannot agree that the standard of review of the trial court’s refusal to 

admit the evidence supporting Appellant’s justification defense is “abuse of 

discretion.” I believe that whether the evidence was sufficient to raise an issue 

as to each element of the defense was a question of law. Viewed under the 

proper standard, I nevertheless agree with the majority that the trial court erred in 

excluding the evidence and in precluding Appellant from presenting his defense 
2

as well as violating Appellant’s right to cross examine and confront the witnesses 

against him, requiring that we reverse the trial court’s judgment and remand this 

cause to the trial court.

In refusing to admit the evidence supporting Appellant’s defense of 

justification for his actions, the trial court concluded, as argued by the State, that 

there was “no evidence” of any new incident of physical choking of one of the 

children by Douglas, Brandy’s fiancé, or sexual abuse by his ex-stepson, and 

thus, no evidence of an immediate necessity for Appellant to intervene to protect 

the children. The trial court opined that the alleged choking and sexual abuse 

had occurred over a year before, and that those events as well as the counseling 

session the previous week—in which Brandy’s knowledge of the abuse as well 

as more graphic details of it were revealed to Appellant by their younger son for 

the first time—were all too remote in time to create any reasonable belief of 

immediate danger to the children to justify Appellant’s conduct on their behalf. 

This was not Appellant’s argument. The immediate danger, as testified by 

Appellant in his bill of exceptions, was not the past events. They were, however,

relevant, and the evidence of them should have been admitted as probative of 

Appellant’s fear of an apparent, immediate danger from Appellant’s standpoint at 

the time of the offense. When considering whether a defendant acted in selfdefense (or in defense of a third party), the reasonableness of the defendant’s 

actions must be viewed solely from the defendant’s viewpoint. Bennett v. State,

726 S.W.2d 32, 37–38 (Tex. Crim. App. 1986) (holding reasonableness of 
3

defendant’s fear must be judged from the standpoint of the accused at the 

moment of the attack); Johnson v. State, 271 S.W.3d 359, 365–66 (Tex. App.—

Beaumont 2008, pet. ref’d) (holding evidence from friends of defendant who had 

witnessed past acts of violence and verbal abuse directed toward her by 

deceased was evidence establishing defendant’s “fear” of apparent danger at the 

time of stabbing).

As the court of criminal appeals pointed out in Fielder v. State, evidence of 

past violent acts against the defendant is an established method of proof in selfdefense cases, because the law recognizes the fact that future conduct may be 

reasonably inferred from past conduct. 756 S.W.2d 309, 319–20 (Tex. Crim. 

App. 1988) (citing Horbach v. State, 43 Tex. 242, 251–52 (1875)); cf. Thompson 

v. State, 659 S.W.2d 649, 653 (Tex. Crim. App. 1983) (holding when self-defense 

is raised, “the deceased’s reputation for violence and commission of prior specific 

acts of violence [against third parties] which are known to the defendant are 

probative of whether the defendant reasonably believed the force he used was 

immediately necessary to protect [them]”). 

Moreover, a person has the right to defend himself from “apparent danger” 

to the same extent as he would if the danger were real. Johnson, 271 S.W.3d at 

365. The same evidence is probative of whether a defendant’s belief is 

reasonable that force is immediately necessary in defense of a third party such 

as Appellant’s children. Tex. Penal Code Ann. § 9.33 (West 2011). The danger 

Appellant testified that he believed rendered intervention immediately necessary 
4

was that, unless he stopped Brandy, the children would again be exposed to 

harm by Brandy’s fiancé and his ex-stepson, despite the divorce court’s order 

prohibiting contact with them and despite the court-ordered supervision of 

Brandy’s visitation with the children, because Brandy had allowed the boys to be 

around her fiancé and his ex-stepson in violation of the divorce court’s order, had 

failed to supervise them when they were, and had continued her relationship with 

him even after the abuse became known. The situation—as well as the 

danger—was ongoing. The boys were sitting in Brandy’s vehicle, and she was 

refusing to listen to Appellant’s concerns and was about to drive away with them. 

The issue is whether Appellant’s belief was reasonable at that time that his 

intervention was immediately necessary to attempt to protect the children from 

exposure to harm from Brandy’s fiancé or his ex-stepson.

As the majority opinion points out, Appellant testified in his bill that, when 

Brandy came to pick up the children, he believed she was going to violate the 

family court’s order not to allow contact of the children with Douglas or his exstepson. Brandy admitted she had previously violated the family court’s order 

and had lied to that court that she was no longer living with Douglas when she 

was. Moreover, Brandy admitted she had planned to marry Douglas that very 

weekend and did so. According to Appellant’s testimony, Brandy had denied the 

boys’ allegations of choking by Douglas and dismissed the evidence of sexual 

abuse. The younger son had, at the most recent counseling session, 

corroborated his brother’s statements for the first time that he had told Brandy of 
5

the choking and sexual abuse but that she had sat in another room watching 

television while the abuse occurred. It is undisputed that both she and her 

mother refused to discuss Appellant’s fear and concern about the boys when 

they came to pick them up. 

Brandy, herself, succinctly described Appellant’s state of mind at the time 

of the offense, acknowledging (in her testimony on Appellant’s bill of exceptions) 

that Appellant’s “assumption” was that the boys were not safe going with her. 

She disagreed with Appellant’s assumption the boys were in danger and 

maintained the children were safe with her, but it matters not whether the boys 

were, in fact, in danger from Douglas or his ex-stepson when Brandy and her 

mother drove off with them. According to Appellant, he believed they were, and 

he had a right to defend the children from apparent danger as fully and to the 

same extent as he would had the danger been real, provided he acted upon a 

reasonable apprehension of danger as it appeared to him from his standpoint at 

the time. See Johnson, 271 S.W.3d at 365–66.

The court of criminal appeals has made clear that a defendant has the 

burden of production of some evidence on each element of a justification 

defense, holding that a defense is raised “if there is some evidence, from any 

source, on each element of the defense that, if believed by the jury, would 

support a rational inference that that element is true.” Shaw v. State, 243 S.W.3d 

647, 657–58 (Tex. Crim. App. 2007) (emphasis added), cert. denied, 553 U.S. 

1059 (2008). The trial court does not weigh the evidence or determine the 
6

credibility of the witnesses, including the credibility of the defendant, but must 

assume the credibility of evidence supporting the defense. Shaw v. State, 181 

S.W.3d 450, 452 (Tex. App.—Waco 2005), aff’d, 243 S.W.3d at 660.

On appeal, we review the issue of whether a defense of justification is 

raised by the evidence de novo as a question of law. Shaw, 243 S.W.3d at 658; 

Shaw, 181 S.W.3d at 452. Neither at this stage nor at the stage of submission to 

the jury do we apply the usual rule of appellate deference to the trial court’s 

ruling. Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006); Johnson, 

271 S.W.3d at 367. On de novo review, we afford no deference to the trial 

court’s determination and consider the matter as if we were the court of first 

instance. See Tucker v. State, 369 S.W.3d 179, 187 (Tex. Crim. App. 2012) 

(Alcala, J., concurring). As does the trial court, we view the evidence relied on by 

the defendant to raise the defense in the light most favorable to the defendant.

See Bufkin, 207 S.W.3d at 782; Johnson, 271 S.W.3d at 366, 367.

It appears that the trial court here, despite its care in listening to the 

arguments of Appellant and the testimony offered by Appellant’s bill of 

exceptions (including questioning by the court), did not credit Appellant’s 

testimony and did not view the evidence in the light most favorable to Appellant 

but, instead, weighed the credibility of Appellant’s proffered testimony, itself, and 

concluded that it was simply not credible that there was any immediate danger to 

the children and no reasonable basis for Appellant to believe that there was.
7

In essence, by excluding Appellant’s evidence, the trial court granted a 

directed verdict against Appellant on his justification defense. If each element of 

a defense is raised by some evidence, the defendant is entitled to an instruction 

to the jury on that defense, regardless of whether the evidence supporting the 

defense is strong, weak, feeble, impeached or contradicted, and even if the trial 

court is of the opinion that the testimony raising the defense is not credible. 

Shaw, 243 S.W.3d at 657–58 (citing Tex. Penal Code Ann. § 2.03 (West 2011)); 

see Walters v. State, 247 S.W.3d 204, 209 (Tex. Crim. App. 2007). The 

defendant’s burden of production includes presenting some evidence that he 

“reasonably” believed his conduct was immediately necessary to avoid unlawful 

force to himself or third parties. Shaw, 243 S.W.3d at 657. The evidence 

detailed in Appellant’s bill regarding the prior conduct of Brandy, her fiancé, and 

his ex-stepson was some evidence to support the reasonableness of Appellant’s 

belief in that regard, and whether Appellant’s belief was “reasonable” was for the 

jury and not the trial court to decide. See Juarez v. State, 308 S.W.3d 398, 405 

(Tex. Crim. App. 2010) (both admitting and denying requisite mental state 

entitled defendant to instruction on the necessity defense; was jury’s province to 

resolve factual issue).

Viewing the testimony excluded by the trial court in the light most favorable 

to Appellant, and assuming the credibility of the evidence supporting his defense, 

I would conclude that Appellant proferred some evidence, more than a scintilla, 

raising an issue of fact on each element of the defense of justification, and that 
8

the trial court thus erred in excluding it. Appellant admitted the elements of the 

offense and, as pointed out by the majority, without his evidence of justification, 

there was no dispute left for the jury to resolve. The State exacerbated the trial 

court’s error by emphasizing in its closing argument that Appellant had “no 

excuse,” which, of course, was only true after the State had convinced the trial 

court to exclude Appellant’s evidence of justification. I agree that Appellant was 

entitled to have his defense heard and submitted to the jury.

/s/ Anne Gardner

ANNE GARDNER

JUSTICE

PUBLISH

DELIVERED: December 18, 2014