Opinion filed February 17, 2022

In The

Eleventh Court of Appeals __________

No. 11-20-00087-CR

__________

JAMES MARK JOKEL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 266th District Court

Erath County, Texas

Trial Court Cause No. CR15254

O P I N I O N

Appellant, James Mark Jokel, was arrested after he repeatedly struck the back

door of his parents’ home in Erath County with an axe. The State subsequently 

indicted Appellant for the offense of burglary. The indictment alleged that Appellant 

“intentionally and knowingly enter[ed] a habitation . . . and attempted to commit or 

committed an aggravated assault against Bobby Jokel”—Appellant’s father. See 

TEX. PENAL CODE ANN. § 30.02(a)(3) (West 2019). The indictment further alleged 

that Appellant exhibited a deadly weapon, an axe, during the commission of the 
2

offense. After the jury found Appellant guilty as charged in the indictment, and upon 

Appellant’s election, the trial court assessed Appellant’s punishment at 

imprisonment for thirty-five years and a $2,000 fine. See id. § 30.02(d)(1)–(2). In 

his sole issue on appeal, Appellant contends that the trial court erred when it refused 

to instruct the jury on the lesser included offense of aggravated assault. We reverse 

and remand. 

I. Factual Background

Appellant has not challenged the sufficiency of the evidence; therefore, we 

have tailored our discussion to the facts that are necessary to the disposition of this 

appeal. 

Appellant’s parents, Sandra and Bobby Jokel, are married and reside together 

in Stephenville. At the time of his arrest, Appellant resided primarily in his parents’ 

travel trailer that was located behind the Jokel residence. The evidence presented at 

trial was undisputed that Appellant and Bobby had a contentious and “challenging” 

relationship.

The back of the Jokel residence had glass French doors that led into the 

backyard, where the Jokels’ travel trailer and the barn that they used as a shop were 

situated. On the morning of Appellant’s arrest, Appellant was in the backyard by 

the barn working on Bobby’s pickup. At some point, Bobby went to let his dog out

of the house and into the backyard. When he opened the back door, Bobby noticed

that the hood of his pickup was raised and saw that Appellant was “doing something” 

with the pickup. Bobby shouted at Appellant to “leave [his] pickup alone.” 

According to Bobby, Appellant yelled, “I’ll kill you, you SOB, I’ll kill you,” 

and immediately “[ran] at the door with an axe in his hand.” Bobby reacted by 

closing the back door, locking it, and dialing 9-1-1 as Appellant swung at the glass 

doors with the axe. According to Appellant, he heard Bobby shout at him to “get 

away from [the] truck” and then Appellant “heard the door slam.” Appellant 
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testified that Bobby would “always” angrily slam the door shut and then lock it. This 

angered Appellant. He testified that although he had a key to the back door, his 

objective that morning was to “tear that . . . door down” in order to teach Bobby a 

lesson about slamming it. To that end, Appellant went into the shop and retrieved 

an axe because it “was the first thing that was handy.” 

While Appellant was striking the back door with the axe, Bobby retrieved his 

handgun and pepper spray and waited for law enforcement to arrive. Bobby testified 

that Appellant did not “[enter] the house and swing the axe at [him].” Rather, when 

Appellant ceased striking the back door with the axe, he walked away from the house 

and into the field that was behind the barn. Appellant was standing in knee-high 

grass, shouting, and swearing when State Troopers eventually located him in the 

field. Appellant was still holding the axe. After some discussion with the troopers 

who approached him, Appellant eventually surrendered to Constable Jason Schipper 

when he arrived at the scene.

Sandra was in Fort Worth at the time of the incident. Sandra testified that 

Bobby “doesn’t like [and has] never liked [Appellant], [and] he hates [Appellant’s] 

guts.” Sandra also testified that she is the title-owner to the house and that it is her 

separate property. She explained that she and Bobby were divorced in 1991 and that 

she was awarded the house in the property division. Bobby and Sandra eventually 

remarried, and he has lived at the Jokel residence since that time. 

Bobby testified that he and Sandra did not “see eye-to-eye” concerning 

Appellant’s blanket access to the house. According to Sandra, Appellant is a resident 

of the household: she explained that, although Appellant slept in the travel trailer, 

Appellant lived at and had unfettered access to the Jokel residence. Appellant had a 

key to the back door of the house that Bobby had provided to him. Sandra testified 

that Appellant “came in [the house] to eat, . . . to bathe, and [to] wash his clothes.” 

Further, Appellant “just came in whenever he got ready to” do those things because 
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he “live[s] there.” According to Bobby, he had previously asked Appellant to move 

out of the Jokel residence due to financial reasons; however, and despite Bobby’s 

insistence, Sandra testified that Bobby did not have the authority to oust Appellant 

from the house. Moreover, Appellant testified that he has “always lived there” and 

stated: “that’s my address, you know, on my driver’s license.”

At the conclusion of the guilt/innocence phase of Appellant’s trial, and before 

the charge was read to the jury, Appellant’s trial counsel requested and submitted a 

proposed jury instruction on the lesser included offense of aggravated assault. The 

trial court refused to submit the requested instruction, and the jury found Appellant 

guilty of the indicted offense. In his sole issue on appeal, Appellant challenges the 

trial court’s refusal to charge the jury on the lesser included offense of aggravated 

assault.1

II. Standard of Review

Whether an instruction on a requested lesser included offense is warranted 

requires a two-step analysis. Safian v. State, 543 S.W.3d 216, 219 (Tex. Crim. App. 

2018); Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011) (citing Hall v. 

State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007)); Mathis v. State, 67 S.W.3d 

918, 925 (Tex. Crim. App. 2002); Rousseau v. State, 855 S.W.2d 666, 672 (Tex. 

Crim. App. 1993). First, we must determine, as a matter of law, whether the offense 

to be submitted is a lesser included offense of the charged offense. Safian, 543 

S.W.3d at 219–20; Rice, 333 S.W.3d at 144; Ybarra v. State, 621 S.W.3d 371, 379 

(Tex. App.—Eastland 2021, pet. ref’d). Second, before an instruction on a lesser 

included offense is required, we must determine whether there is some evidence in 

the record that would permit a jury to rationally find that, if the defendant is guilty, 

1

We are aware of Williams v. State, No. PD-0477-19, 2021 WL 2132167 (Tex. Crim. App. May 26, 

2021), which is currently pending on rehearing before the Court of Criminal Appeals. Because the Williams 

opinion is subject to change, its application to this case is currently unclear. For the purposes of our opinion, 

we will assume, regardless of Williams, that Appellant preserved his issue for our review.
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he is guilty only of the lesser included offense. Safian, 543 S.W.3d at 219; Rice, 333 

S.W.3d at 145; Mathis, 67 S.W.3d at 925; Ybarra, 621 S.W.3d at 379.

III. Analysis

The first step of our analysis is accomplished by comparing the statutory 

elements of the lesser offense and the “statutory elements and any descriptive 

averments in the indictment.” Ritcherson v. State, 568 S.W.3d 667, 670–71 (Tex. 

Crim. App. 2018) (citing Bullock v. State, 509 S.W.3d 921, 924 (Tex. Crim. App. 

2016)). An offense is a lesser included offense if “it is established by proof of the 

same or less than all the facts required to establish the commission of the offense 

charged.” TEX.CODE CRIM. PROC. ANN. art. 37.09(1) (West 2006); Wortham v. State, 

412 S.W.3d 552, 554–55 (Tex. Crim. App. 2013). Because the first step concerns a 

question of law, “[w]e do not consider the evidence that was presented at trial. 

Instead, we consider only the statutory elements of [the offense] as they were 

modified by the particular allegations of the indictment . . . . We then compare them 

with the elements of the [requested] lesser offense . . . .” Wortham, 412 S.W.3d at 

555 (all but first alteration in original) (quoting Hall, 225 S.W.3d at 536). 

Here, the State concedes that aggravated assault is a lesser included offense 

of burglary of a habitation as it is charged in the indictment. See CRIM. PROC. art. 

37.09. Therefore, we now turn to the second step of our analysis to determine 

whether there is some evidence that would permit a jury to rationally find that 

Appellant is guilty only of the lesser included offense of aggravated assault. 

The second requirement is satisfied if there is “(1) evidence that directly 

refutes or negates other evidence establishing the greater offense and raises the lesser

included offense or (2) evidence that is susceptible to different interpretations, one 

of which refutes or negates an element of the greater offense and raises the lesser 

offense.” Ritcherson, 568 S.W.3d at 671 (citing Saunders v. State, 840 S.W.2d 390, 

391–92 (Tex. Crim. App. 1992)). In this regard, we consider all of the evidence 
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admitted at trial; if more than a scintilla of evidence exists in the record to raise the 

lesser offense and either negate or rebut an element of the greater offense, then the 

defendant is entitled to a lesser-included-offense jury instruction. Id. (citing Roy v. 

State, 509 S.W.3d 315, 317 (Tex. Crim. App. 2017)); see Bignall v. State, 887 S.W.2d 

21, 23 (Tex. Crim. App. 1994). Nevertheless, such evidence cannot be speculative; 

it must consist of affirmative evidence that raises both the lesser included offense 

and rebuts or negates an element of the greater offense. Wortham, 412 S.W.3d at 

558. Furthermore, the evidence must be such that it establishes the lesser included 

offense as a “valid rational alternative to the charged offense.” Segundo v. State, 270 

S.W.3d 79, 91 (Tex. Crim. App. 2008). 

In this case, the State charged Appellant with the offense of burglary pursuant 

to Section 30.02(a)(3). See PENAL § 30.02(a)(3). Under that provision, a person 

commits the offense of burglary if: (1) without the effective consent of the owner, 

(2) the person enters a habitation, and (3) commits or attempts to commit a felony

or an assault. See id. A person commits the offense of assault—the third element 

of burglary as charged in this case—if he either (a) intentionally, knowingly, or 

recklessly causes bodily injury to another or (b) intentionally or knowingly threatens 

another with imminent bodily injury. See id. § 22.01(a)(1)–(2) (West Supp. 2021). 

An assault becomes an aggravated felony if the person “uses or exhibits a deadly 

weapon during the commission of the assault.” Id. § 22.02(a)(2). Here, Appellant 

argues that some evidence tended to show that he had the owner’s—Sandra’s—

effective consent to enter the house at any time; therefore, Appellant asserts that he 

could not be guilty of the indicted offense of burglary but, rather, if he was guilty,

he was only guilty of the lesser included offense of aggravated assault. We agree.

The Penal Code defines “[o]wner” as “a person who . . . has title to the 

property, possession of the property, whether lawful or not, or a greater right to 

possession of the property than the actor.” Id. § 1.07(a)(35)(A) (West 2021). The 
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“effective consent” element of burglary encompasses “consent by a person legally 

authorized to act for the owner.” Id. § 1.07(a)(19). Sandra, the title-owner of the 

habitation, testified that, although Appellant primarily stayed in the travel trailer

behind the house, Appellant had unfettered permission to enter the house

“whenever” he desired. According to Sandra, Appellant lived in her house and thus 

maintained the same status as a resident: Appellant possessed a key to the house and 

could enter and leave at his convenience, without knocking. Appellant testified 

similarly. Sandra explained that Bobby “never liked [Appellant]” and that she knew 

Bobby wanted Appellant to “move out.” Further, Sandra testified that Bobby did 

not have the ultimate authority to demand or to advise Appellant that he must leave

the Jokel residence. Therefore, the evidence is such that a rational jury could have 

found that (1) Appellant had the effective consent to enter the house from its owner,

Sandra, or (2) Bobby did not have a greater right to possession of the house than 

Appellant but, rather, only had, at most, an equal right to possession.

Because more than a scintilla of evidence exists in the record to rebut or negate 

the effective-consent element of the greater offense of burglary as charged in the 

indictment, we hold that Appellant was entitled to the requested jury instruction on 

the lesser included offense of aggravated assault. See Ritcherson, 568 S.W.3d at 

671. Therefore, the trial court erred when it refused to submit this requested 

instruction to the jury. In light of our holding, we must now determine whether the 

trial court’s error requires reversal. 

If jury-charge error has been preserved by proper objection, we will reverse if 

the error in the trial court’s charge resulted in some harm to the accused. Ngo v. 

State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Hardeman v. State, 556 S.W.3d 

916, 923 (Tex. App.—Eastland 2018, pet. ref’d); see Almanza v. State, 686 S.W.2d 

157, 171 (Tex. Crim. App. 1985). “[T]he harm from denying a lesser offense 

instruction stems from the potential to place the jury in the dilemma of convicting 
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for a greater offense in which the jury has reasonable doubt or releasing entirely from

criminal liability a person the jury is convinced is a wrongdoer.” Masterson v. State, 

155 S.W.3d 167, 171 (Tex. Crim. App. 2005); Hardeman, 556 S.W.3d at 923. When, 

as in this case, the trial court’s refusal to submit a lesser included offense that was

requested by the defendant and raised by the evidence “[leaves] the jury with the 

sole option either to convict the defendant of the greater offense or to acquit him,” 

some harm exists. Saunders v. State, 913 S.W.2d 564, 571 (Tex. Crim. App. 1995)

(emphasis added). Such is this case here. Therefore, because the only option 

available to the jury in this case was either to convict or acquit Appellant of the 

indicted offense of burglary, we hold that Appellant suffered some harm.

Accordingly, we sustain Appellant’s sole issue on appeal.

IV. This Court’s Ruling

We reverse the judgment of the trial court and remand this cause to the trial 

court for a new trial. 

W. STACY TROTTER

JUSTICE

February 17, 2022

Publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.