## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 22

- 00072

- CR

COLBY BRYANT FLOWERS , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 6th District Court Lamar County, Texas Trial Court No. 29537

Before Morriss, C.J., Stevens and van Cleef , JJ. Memorandum Opinion by Justice van Cleef2 

### ME MORANDUM OPINION
After a jury found Colby Bryant Flowers guilty of three counts of aggravated assault with a deadly weapon, he was sentenced to twenty years ’ confine ment in prison on each count

. In the same proceeding, Flowers pled guilty to two counts of unlawful possession of a firearm and was sentenced to ten years in prison on each count. The trial court ordered the sentences to run concurrently. Flow ers appeal s, arguing that (1) the trial court erred when it failed to include a
self

- defense instruction in its jury charge , (2) his two convictions for unlawful possession of a firearm violated the multiple punishment prohibition, and (3) the trial c ourt erre d when it failed to admit evidence relating to his claim of self

- defense. For the reasons below, we affirm the trial

court ’ s judgment.
I. Background
A. The Initial Confrontation On August 30, 2021, Kenneth Cr ittenden and his former girlfriend, Linds ey W ilson, were involved in a “ text spat. ” Crittenden is the father of Summer Whitworth ’ s child , and at the time of the incident at issue, Crittenden and Whitworth had a “ relationship, ” but they wer e not

“ together. ” At some point during Wilson ’ s and Cri ttend e n ’ s t e xting conversation, they began to argue about Whitworth. According to Crittend e n, he began receiving text messages the next day from Flowers, who was then in a dating relationship with Wilson

. L ater that day , while riding in a vehicle wi th3

Whitworth and R aven J ordan, 1 Crittenden saw Flowers driving in the opposite direction , and he
directed Jordan to follow Flowers

. A c c ounts vary as to what happened next. According to Flowers, Then I got to the stop sign, sir, and as I began turning

- - well, as the t ex t mes sages show when we were on the street actually that ’ s when t he text message of [Crittenden] telling me to stop comes into play. Then as I got to the stop sign I began turning left and when I looked back they were still coming towards me so that ’ s w hen I fired out the window in order to get them to quit chasing me.
Flowers said that he was afraid they were going to run into him. When asked if he shot at them, Flowers responded, “ No, sir, by all means, no. ” Instead, he said that he fired into the air. 2
A t tri a l, after Flowers was shown a photograph t hat depicted him holding an assault rifle , Flowers stated that he had “ sent [Crittend e n] the picture [by text] . . . when [he] got home after they claimed [he] had shot at them. ” Flowers s aid that he believe d Cri t tend e n had given him the option of physically fighting or “ having a shootout ” d uring their earlier te xting conversation. According to Flowers, he believed that Crittend e n had a weapon
. B. The Second Incident
About an hour after the firs t incident , Chris Mayfield, a detective with the Pa ris Police Departme nt (P P D), responded to a disturbance at a home on the west side of Paris. While processing the scene, Flowers came out of the residence several times to speak to the responding
officers

. As Mayfield approached the house, he smelled the odor of marihuana “ k ind of emitting
outside the residence. ” “ [ A ] s the front door would open and close that odor would get

1 Jordan was the d river of the vehicle.

2 During an interview wi th law enforc ement officers , Flowers admitted that he st uck his arm out of the win dow and star t e d shoo ting the pistol up in the air, but he claimed he “did not aim at them.” Flowers conceded that he shot eight times , stat ing, “That’s how many bullets the gun holds .”4

considerably stronger. ” Based on the odor, another PPD officer, Sergeant L eigh F o reman , sought and obtained a search warrant that al lowed officers to s ea rch th e house and Flowers ’ s vehicle. Pursuant to the search warrant, Mayfield searched Flower s ’ s bedroom in the house, finding, among other things, an insurance card, work shirts , a nd a prescription bottle, all containing Flowers ’ s name. In addition, Ma yf ield located several empty plastic baggies that
smelled of marihuana , a plastic baggie containing three rounds of 9 mm ammunition, and a
Taurus G2 semi

- automatic pistol that cont a i n ed seven rounds of Hornady ammunition load ed in the maga zine. A lthough Flo wers shared the bedroom with his brother, those items were found

on Flowers ’ s side of the room and in furniture that he had been using. A dark grey Hyundai that belonged to F l o we rs was parked in the driveway of the hou se. Police officers found a n assault rif l e, a magazine, and some a mmunition in the vehicle. According to Mayfield, “ [T] he rifle was loaded and ready for operation. ” After discovering the two weapons, Foreman a r r es ted Flowers for two co unts of unlawful possession of a firearm by a
felon

. Becau se Foreman had re sponded to the scene of the earlier shooting, described above, she
was aware that the sho oter had been driving a “ silver car. ” Although she could not p r o v e i t at the time, Foreman was suspicious that Flowers had been involved in t he earli er shooting becau se he drove a grey or silver vehicle and his name “ had come up that morning already. ”5

II. Discussion
A. The Trial Court ’ s Jury Instructions Did Not C o n t a in Error
In his first point of error, Flowers maintains that the trial co ur t abuse d its discretion when it denied his request for a jury instruction on self

- defense. We disagree

. During the charge conference on guilt/innocence, Flowers requested an i n s t ru ction on
self

- defense , which the trial court denied. The State contends t hat Flo wers failed to s ufficiently admit to the charged offenses as required for the submission of a self

- defense instruction; and, even if Flowers sufficiently admitted to the c h a rg ed offenses, the evid ence did not raise the issue
of self

- defense and/o r the use of force was no t justified by verbal provocation alone. Section 9.02 of the Texas Penal Code states, “ It is a defense to prosecution that the conduct in question is j u s t i fi ed under this chapte r. ” T EX

. P ENAL C ODE A NN . § 9.02. Pursuant to
Sect io n 9.31, a person is jus tified in using force against another per son when, and to the extent that person reasonably believes, the force is immediately necessary to protect himsel f a g ai nst another person ’ s use or attempted use of unlawful force. T EX

. P ENA L C ODE A NN . § 9.31(a).
A defendant is entitled to an instruction on self

- defense if the issue is raised by the evidence, whether that evidence is strong or weak and regardless o f w ha t the trial court m ay think about the credibility of the defense. 3 Ferrel v . Sta te , 55 S.W.3d 586, 591 (Tex. Crim. App. 2001) ; G ranger v. State , 3 S.W.3d 36, 38 (Tex. Crim. App. 1999)

. Before a defendant is entitled
to a self

- defense instruction, h o w e v er , there must be som e evidence, when viewed in the light

3 “ [ A ] defe ndant need not testify in order to raise [ a ]

. . . defense. ” Boge t v. S tate , 40 S.W.3d 624, 626 (Tex. App.

— San Antonio), aff ’ d , 74 S.W.3d 23, 31 (Tex. Crim. App. 2002 ). Defensive issues may b e rais ed by the testimony of any witnes s, even those called by t he State. Jackson v. State , 110 S.W.3d 626, 631 (Tex. App.

— Houst on [ 1 4 th Dis t.] 2003, pet. ref ’ d ).6

most favorable to th e def endant, that will support the claim. Ferrel , 55 S.W.3d at 591; see Hill v.
State , 99 S.W.3d 248, 250 (Tex. App.

— Fort Worth 2003, pet. ref ’ d)

. 4 “ [A] defense is supporte d ( o r raised ) by the evid ence if there is some evidence, from any source, on eac h eleme nt of the
defense that, if believed by the jury, woul d support a rational inference that that element is true. ”
Shaw v. State , 243 S.W.3d 647, 657

– 58 (Tex. Crim. App. 2 0 0 7 )

.

“ Self

- defense is a confession

- and

- avoidance defense requiring the defend an t to admit his
otherwis e illegal conduct. ” Jordan v. State , 593 S.W.3d 340, 343 (Tex. Crim. App. 2020) (citing Juarez v. State , 308 S.W.3d 398, 404 (Tex. Crim. App. 2010)). T o be entitled to an ins truction
on self

- defense, a defendant is required first t o adm it the conduct cha rged in the indictment and
then to o ffer evidence justifying that conduct. Young v. State , 991 S.W.2d 835, 839 (Tex. Crim. App. 1999 ). A defendant ca n n o t b oth invoke self

- def ense and flatly deny the charged conduct

. Juarez , 308 S. W.3d at 406

. “ Admi ttin g the conduct , however, does not necessarily mean
ad mitting the commission of every statutory element of the offense. ” Jackson v. State , 110
S.W.3d 62 6 , 6 31 (Tex. App.

— Houston [14th Dist.] 2003, pet. ref ’ d) (citing East v. State , 76
S.W. 3d 736 , 738 (Tex. App.

— Waco 2002, no pet. ) ). That is, even if a defe ndant denies the specific allegations in the indictment, he or she is not necessarily precluded from r a i si ng defensive issues as long as he or she sufficiently admits conduct under ly ing t he offe nse and
prov ides evid ence justifying a defensive instruction. Id

. at 631

– 32 (citing Kemph v. State , 12 S.W.3d 530, 532 (Tex. App.

— San Antonio 1999, pet. ref ’ d) )

.

4 Likewise, “[a] trial court errs in denying a self

- defen se in struction if there is some evi dence, from any source, that will suppo rt the elements of self

- d efense.” Fury v. State , 607 S.W.3d 866 , 875 (Tex. App.

— Houston [ 14 th D i st.] 2 020, pet. ref’d) (citing Gamino v. State , 537 S.W.3d 507, 510 (Tex. Crim. App. 2017) ).7

F lo wers contends that he admitted to intentionally discharging his weapon at th e sce ne.
He goes on to state that “ [t] he only small issue is that Flowers conte nd s that he discharged the handgun into the air, while the State contends that Flowers dischar g e d th e handgun at the car containing Crittenden. ” Despite Flowers ’ s assertion, that i s no t, in our opinion , a “ sm all issue. ”
The St ate ’ s indictment against Flowers alleged that , on or about August 31, 2021, he “ did
then and there intentionally and kno w i n g ly threaten Ken neth Crittenden with imminent bodily injury by shoot in g at his vehic le , and used or exhibited a deadly weapon, namely a firearm, during the commission of the assault. ” 5 (Emphasis added )

. According to Flowers ’ s own testimony, he did not s h o ot at Jordan ’ s vehicle. Instead, he admitted to shooting the weapo n in
the air in order t o persuade Jordan to drive awa y or to prevent her from attempting to t

- bone his vehicle. Likewise, Flowers did not admit to using the weapon to intentionally and k n o wi ngly
threate n Crittenden with imminent bodily injury. 6 Conseque nt ly, Flowers did not a dmit to, or
even subs tantiall y admit to, the elements of aggravated assault with a deadly weapon as alleged in the indictment against him. In fact, he flatly deni e d t he charged con duct. Consequently, the
trial court did not err whe n it refused to g rant his request for a jury i nstructi on on self

- defense.
We overrule Flowers ’ s first point of error.
B. Flowers Waived His Claim of a Multiple Punishments Violation
T h e Double Jeopa rdy Clause in the United States Constitution provide s th at no person
shall “ b e subject for the sam e o ffen c e to be twice put in jeopardy of life or limb. ” U.S. C ONST

.

5 Count s II and III of the indict ment contain the same allegations in relation to Jordan an d Whitworth.

6 The same is true for Jo rdan and Whitworth

.8

amend. V. “ The clause protects against (1) a second prosecution for th e s a me offense after [ an ] acquittal, (2) a second prosecution for th e s ame offense afte r [ a ] conviction, and (3) m ultiple punis hments for the same offense. ” Ex parte Watkins , 73 S.W.3d 264, 267 n. 5 (Tex. Crim. App. 2002). “ The Fifth Amendment ’ s multiple p u n i sh ments pro hibition is violated when a defendant

‘ is convicted o f more offenses tha n t he legislature intended. ’ ” Saenz v. St ate , 166 S.W.3d 270, 272 (Tex. Crim. App. 2005) ( quoting Ex parte Ervin , 991 S.W.2d 804, 807 (Tex. Crim. App.
1999 ))

. Here, c o u n t IV and c ount V of the State ’ s indictment against Flowers w ere identi cal and
read as f o l lows : And it is fu rther presented in and t o said Court that the said Defendant in Lamar County , Texas , on or about August 31, 2021 , did then and there, having been c o n vi cte d of the felony offense of Burglary of a Habitation on October 17 , 2016 , in ca us e number 26946 in the 6 th District Court of La mar County , Texas , intentionally , knowingly , and recklessly possess a firearm before the fifth anniversary of the defenda n t ’ s r ele ase from supervision under parole following conviction of the felony

. Witho ut o bjecting to counts I V and V, Flowers pled gu ilty to both offenses.
In Dorsey v. State , after the trial court denied Dorsey ’ s motion to suppress, Dorsey pled guilt y t o p oss ession of a controlled substance with the intent to deliver and to two c ounts of

u nlawful possession o f a firearm by a felon. The Houston Court of Appeals affirmed the trial

court ’ s judgment, finding in part, that Dorsey ’ s two convictions for fel o n i n pos session of a firearm were wholly independent and that, therefore, double jeop a rdy did n ot attach. See Dors ey v. State , 623 S.W.3d 825, 836 (Tex. App.

— Houston [ 1st D ist.] 2019, pet. ref ’ d).9

In refusing Dorsey ’ s petition for discretionary review , t h e Te xas Court of Criminal Appeals explained, Appellant pled guilty pursuant to a p lea ba r ga in and is therefore limited to appealing “ ma tters which have been raised by written motion filed before trial. ” He did not raise a double jeopardy claim in the t r i al c ourt and may not raise the issue for the first time on appeal. The court of ap peal s e rr ed to address the merits of the claim.
Do rsey v. State , Nos. PD

- 901

- 20, PD

- 902

- 20 , & PD

- 903

- 20, 2021 WL 1556100 , at *1 (Tex. Crim. App. Apr. 2 1, 2021) (per c u r i a m) ( order)

. The same is true in this case. Before the commencement of trial, Flow ers p le d guilty to both counts of unlawful possessi on of a firearm by a felon. In doing so, he conceded that he had no complaint with the contents of the State ’ s indict m e n t , and he admitted to the offenses as alleged in that indictment. As in Dorsey , Flo wers fa iled to raise any perceived error with the

t rial court. 7 As a result , we cannot address the merits of his claim. We overrule his second point of error.
C. Th e T r ia l Court Did Not Err When I t Refused to Admit Evidence of Flowers ’ s Sel f

- Defense T heory
In support of a self

- defense claim , Flowers con tends that the trial court erred when it
refused to admit evidence that Crittenden “ shot a firearm at Flower s ” sho r t l y a fter the occurrence
of the incident at issue.

7 A def enda n t has th e burden to “preserve, in some fashion

. . . a double jeopardy objection ” at tr ial

. Gonzalez v. State , 8 S.W.3d 6 40, 64 2 (Tex. Crim. App. 2000) (en banc ). However, a double jeo pardy claim may be raised for the firs t time on appeal when (1) a “ vi o l a tion i s clearly apparent from the face of the record, and (2) enforcement of the u sual rules of procedural default se rves n o legitimate state interest. ” Ga rfias v. State , 424 S.W.3 d 54, 58 (Tex. Crim. App. 2014). That is not the case here.10

Before the commencement of trial , the State filed a motion in limine , stating that , about
an ho ur after the incident at issue , Crittenden was “ suspected of shooting at a house occupied by
Mr. Flowers a n d f

am i ly members of Mr. Flowers

. ” The State aske d the tria l court to order the
par tie s to refrain f

rom making “ [a]ny reference to Kenneth Critten den being a suspect in an aggravated assault. ” The trial court granted the State ’ s motion

. Flowers m a d e a n offe r of proof at trial in which M ayfiel d testified that he had been dispatched to Flowers ’ s grandp arents ’ home in regard to a shooting that had occurred about an hour after the shooting took place near the park. According to Mayfield , a vehicle , r e p o rt e dly

c ontaining Jordan , Crittenden , and Whitworth , drove past Flowers ’ s grandparents ’ home , while

so meone in the vehicle fired a weapon at the house. La ter , Crittenden informed the police that
he had been the shoote r. According to Flowers , “ even thoug h t he inc iden t occurred after the incident forming the basis o f this case , tha t evidenc e was relevant of t he lev el of conflict between [ Crittenden ] and Flowers , [ Crittenden ] ’ s access [to] and possession of a firearm , and his willingness to use a firearm. ”

“ We r e view a trial court ’ s decision to admi t or exclude evidence fo r an abuse of
dis cretion. ” Flowers v. State , 4 38 S.W .3d 96, 103 (Tex. App.

— Texarkana 2014, pet. ref ’ d) (citing Martinez v. State , 327 S.W.3d 727, 736 (Tex. Crim. App. 2010) ). “ Abuse of d i scret i on occurs only if the decision is ‘ so clearly wrong as to lie outside the zone within which reasonable peopl e migh t disagree. ’ ” Id. (quoting Taylor v. State , 26 8 S.W.3d 571, 579 (Tex. Crim. App. 2008); Montgomery v. State , 810 S.W.2d 372, 391 (Te x
. Crim. App. 1990) (op. on reh ’ g) ). “ We
may not substitute our own d ecision for that of the trial court. ” Id

. (cit ing Mo ses v. State , 10511

S. W.3d 622, 627 (Tex. Crim. A pp. 2003) ). “ We will uphold an evi dentiary ruling if it was correct on any theory of l a w app li cable to the case. ” Id

. (citing De L a Paz v. State , 279 S.W. 3d 336, 344 (Tex. Crim. App. 2009) ).

“ [ A ] pers on is justified in using force against another when a nd to the degree the actor
reasonab ly believes the force is immediately necessary to p r o t ect th e actor ag ainst the other ’ s use

or attempted use of unlawful force. ” T EX

. P EN AL C ODE A NN

. § 9.31(a)

. A def endant has the burden of producing some evidence to s upport a claim of self

- defense

. Zu liani v. State , 97 S.W.3d 589, 594 (Tex. Crim. App. 2 0 03). “ Once the defend ant produces such evidence , the
State then bears the burden of persuasion to disprove the ra ised d efense. ” Id. “ The burden of persuasion is not one that requires the production o f evidence [ ; ] rather [ , ]

. . . the State [ need only ] p r ove it s case beyond a reas onable doubt. ” Id. “ When a jury finds the defendant guil ty, there is an implicit fi nding against the defensive theory. ” Id. Citing Bro ussard v. State , 809 S.W.2d 55 6 , 559 (Tex. App.

— Dallas 1991 , pet. re f ’ d)
Flowers correc tl y p oints out that “ the defendant ’ s reasonable apprehension of danger must be as it appe ared at the time of the act ion. ” Here , Crittenden shot at Flowers ’ s grandparents ’ h ouse an hour after Flowers shot at Jord an ’ s ve hicle. To support a claim of self

- defe n s e , Flow ers was required to show at least some evidence that it was necessary for him to shoot at Jordan ’ s vehicle to protect himself from Crittenden ’ s subsequent u nlawful a ctions

— an improbable , if not impossi ble , burden. Flower s ’ s contention that Critte n d e n ’ s ac tions during the second shooting
somehow excused Flowers ’ s actions in the firs t shooting do es not amo unt to evidence of

“ justification ” as defined by Sec tion 9.31(a) . Consequently , the trial court ’ s deci sion to exclude12

the compla ined

- of evide nce w a s not “ so clearly wrong as to lie outside the zone within which reasonable people mig ht disagree. ” See Flow ers , 4 38 S.W.3d at 103.
We overrule Flowers ’ s third point of er ror. III. Conclusion
We affirm the tr ial cou rt ’ s judgment.

Charles van C l e ef J us tice
Date Submitted: November 29, 2022 Date Decided: December 1 4 , 2 022
Do Not Publish