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CAUSES 13-14-00742-CR, 13-14-00743-CR, & 13-14-00744-CR

IN THE THIRTEENTH SUPREME JUDICIAL DISTRICT OF TEXAS AT 

CORPUS CHRISTI, TEXAS

CHARLES DANE HILL, APPELLANT

VS.

THE STATE OF TEXAS, APPELLEE

APPELLANT’S BRIEF

Trial Causes 13-11-9140, 13-11-9158, & 13-11-9159

Jackson County District Court

Submitted by

W. A. (BILL) WHITE

Attorney for Appellant

POB 7422, Victoria, TX 77903

(361) 575-1774 voice & fax

TBN 00788659

ORAL ARGUMENT NOT REQUESTED

ACCEPTED

13-14-00742-CR

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

6/17/2015 3:30:26 PM

CECILE FOY GSANGER

CLERK

 RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 6/17/2015 3:30:26 PM CECILE FOY GSANGER Clerk
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IDENTITY OF PARTIES AND COUNSEL

Appellant was represented at trial by Mr. Larry 

Sauer, Attorney at Law, and Mr. Doran Sauer, Attorney 

at Law, both of 1004 West Avenue, Austin, TX 78701.

Appellant is represented on appeal by Mr. W. A. (Bill) 

White, Attorney at Law, POB 7422, Victoria, TX 77903-

7422.

During trial, appellant was a resident of Jackson 

County, Texas. Appellant is currently incarcerated in 

IDTDCJ.

The State was represented at trial by Mr. Robert E. 

Bell, D.A. and Ms. Pam Guenther, A.D.A., both of the 

Jackson County District Attorney’s Office, located at 

115 W. Main Street, 2nd Flr, Edna, TX 77957.

Appellant anticipates that the State’s reply brief 

will be prepared and filed by Mr. Jim Vollers, 2201 

Westover Road, Austin, TX 78703.
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TABLE OF CONTENTS

Page

Index of Authorities 4

Appellant’s Brief 5

Statement of the Case and Statement of Facts 5

Issues Presented 10

Summary of Argument 10

Argument 12

Issue I 12

THE TRIAL COURT ERRED BY DENYING APPELLANT’S REQUEST 

FOR JURY INSTRUCTION ON SELF-DEFENSE BECAUSE APPELLANT 

PLED “NOT GUILTY” WHEN TRIAL BEGAN

Issue II 15

THE EVIDENCE IS INSUFFICIENT TO SHOW THAT APPELLANT 

KNEW JASON MCCARRELL WAS A PUBLIC SERVANT WHEN SHOOTING 

AT HIM

Prayer 19

Certificate of Service 19

Certificate of Compliance 20
4

INDEX OF AUTHORITIES

Cases Page

Anderson v. St., 11 S.W.3d 369 (Tex.App.-Houston 2000)

14

Conner v. St., 67 S.W.3d 192 (Tex.Crim.App. 2001) 16

Hamel v. St., 916 S.W.2d 491 (Tex.Crim.App. 1996) 15

Holberg v. St., 38 S.W.3d 137 (Tex.Crim.App. 2000) 16

Jackson v. Virginia, 443 U.S. 307 (1979) 15

MacDonald v. St., 761 S.W.2d 56 (Tex.App.-Houston 1998)

14

Saxton v. St., 804 S.W.2d 910 (Tex.Crim.App. 1991) 13

Vodochodsky v. St., 158 S.W.3d 502 (Tex.Crim.App.2005)

16

Walker v. St., 994 S.W.2d 199 (Tex.App.-Houston 1999)

15

Young v. St., 991 S.W.2d 835 (Tex.Crim.App. 1999) 14

Statutes

Tex.Pen.Code Ann., sec. 8.04(a)(Vernon 2013) 18
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CAUSES 13-14-00742-CR, 13-14-00743-CR, & 13-14-00744-CR

Trial Causes 13-11-9140, 13-11-9158, & 13-11-9159

CHARLES DANE HILL, Appellant IN THE THIRTEENTH

VS. COURT OF APPEALS AT

THE STATE OF TEXAS, Appellee CORPUS CHRISTI, TEXAS

APPELLANT’S BRIEF

TO THE HONORABLE JUSTICES OF SAID COURT:

COMES NOW APPELLANT, CHARLES DANE HILL, through

counsel, W. A. (BILL) WHITE, Attorney at Law, showing:

STATEMENT OF THE CASE AND STATEMENT OF FACTS

Appellant was indicted in November 2013 for 

aggravated assault on public servant (13-11-9140; three 

counts), aggravated assault with a deadly weapon (13-

11-9158; one count with three paragraphs), and deadly 

conduct (13-11-9159; one count with two paragraphs). 

These crimes were alleged to have all occurred on or 

about 10/05/13 in Jackson County, Texas.

Under the State’s theory, the offenses all occurred 

during a course of events lasting from morning into 
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late night of 10/05/13, ending with appellant’s 

transportation by EMS for medical care, and subsequent 

arrest by law enforcement.

On 10/05/13, appellant was scheduled to participate

in a local fishing tournament. (RR Vol. 5, p. 124). He

drank beer all day in large volume and ate Vodka-soaked 

gummy bears. (RR Vol. 5, p. 74; p. 127). In the 

afternoon, appellant visited an outdoor festival with 

friends in nearby Victoria (25 miles away) named 

“Bootfest”. 

At Bootfest, which was crowded, appellant became 

separated from his friends for about two hours. When

reuniting with appellant, friends noticed that he was 

unusual in his behavior, and not himself. (RR Vol. 5, 

pp. 132-134). According to trial testimony, appellant 

later admitted to a witness that he ingested LSD during 

his solitary wanderings at Bootfest. (RR Vol. 5, pp.

208-210)

Upon returning to rural Jackson County after

Bootfest, appellant began behaving aggressively toward 
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his friends at 694 County Road 313 East near 

Vanderbilt. (RR Vol. 5, pp. 136-141). An argument 

ensued between appellant and Adam Twardowski, and Adam

told appellant to leave his home. Not long afterward, 

a physical struggle occurred on the premises inside a 

pickup truck between Michael Cornwell and appellant, in 

which appellant held a loaded pistol. During this 

struggle, the pistol discharged, shooting a hole in the 

truck’s roof and firing another projectile toward the 

Twardowski house nearby. (RR Vol. 5, pp. 51-53). At 

some point, Cornwell actually managed to stick one of 

his fingers between the pistol’s hammer and firing 

plate at the instant appellant pulled the trigger, 

preventing the gun from firing another time. (RR Vol. 

5, pp. 53-59). Appellant also bit Cornwell during this 

scuffle.

Appellant then left the scene and returned to his 

own residence nearby, while friends called 911 and 

alerted law enforcement. As the darkness of night 

fell, law enforcement officers from various local and 
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state agencies made their way to the residence of 

appellant, who was now armed with a rifle. (RR Vol. 4,

p. 42)

Law enforcement kept their vehicle lights off to 

avoid pinpointing their positions, hoping that

appellant would not see or fire at them. (RR Vol. 4,

pp. 43-46; 52). According to testimony, appellant 

eventually fired at one officer, Deputy Jason 

McCarrell. (RR Vol. 4, pp. 54-55)

It is important to note that peace officers on the 

scene during this dark, country night intentionally 

used neither their blue and red, overhead lights, nor 

any other vehicle lights, including interior dome 

lights. (RR Vol. 4, p. 52). Out in the country, after 

sundown, it was very dark. Law enforcement relied on 

thermal body sensor equipment (night vision) to

discover appellant holding his rifle, rather than using

flashlights. (RR Vol. 4, pp. 37-39). Also, the peace 

officers did not verbally identify themselves as being 
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present, or that they were even peace officers, for the

same tactical reason. (RR Vol. 4, 46-47)

Appellant was ultimately subdued and taken into 

custody after being shot in the arm by law enforcement.

He was medically stabilized and later jailed.

Appellant’s trial began on 11/17/14, with jury 

selection starting the same day. The State’s case-inchief began on 11/18/14, and the State later rested its 

case on guilt/innocence on 11/24/14. The defense 

presented no witnesses at guilt/innocence. The jury 

returned verdicts of guilty on all counts of the three 

indictments, except count I of cause 13-11-9140

(attempted capital murder), which was not read to the 

jury at the start of the State’s case-in-chief and was 

presumably abandoned before trial began. (RR Vol. 3, 

pp. 20-25; RR Vol. 7, pp. 105-106)

The punishment phase began on 11/25/14. Appellant 

elected jury punishment. The jury assessed punishment 

that same day at 20 years prison in cause 13-11-9140, 

10 years in prison in cause 13-11-9158, and 5 years in 
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prison in cause 13-11-9159. The sentences were ordered 

to run concurrently with no fines in any cause. (RR 

Vol. 8, pp. 185-188). The causes were tried together 

in a single trial. Appellant filed notice of appeal. 

ISSUES PRESENTED

I. THE TRIAL COURT ERRED BY DENYING APPELLANT’S 

REQUEST FOR JURY INSTRUCTION ON SELF-DEFENSE 

BECAUSE APPELLANT PLED “NOT GUILTY” WHEN TRIAL 

BEGAN

II. THE EVIDENCE IS INSUFFICIENT TO SHOW THAT

APPELLANT KNEW JASON MCCARELL WAS A PUBLIC 

SERVANT WHEN SHOOTING AT HIM

SUMMARY OF ARGUMENT

It is error for a trial court to deny jury 

instruction on the issue of self-defense because a 

defendant enters a “not guilty” plea at the outset of 

his jury trial. While self-defense is an affirmative

defense, and while elements of the charged crime must 

be factually admitted by the defense throughout trial 

to argue self-defense, merely entering a plea of “not 

guilty” after the prosecutor reads the indictment at 
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the start of its case-in-chief does not preclude a

self-defense claim, nor its inclusion as an instruction 

in the jury charge if the evidence supports.

There is insufficient evidence to support the 

element in cause 13-11-9140 (second count) that 

appellant “knew that Jason McCarrell was a public 

servant”. Trial testimony established that, for 

tactical reasons and reasons relating to officer 

safety, McCarrell did not announce himself to appellant 

as a peace officer on 10/05/13, nor did he allow any

lights on his police unit to illuminate, to avoid 

alerting appellant to his position or highlighting

himself as a target. While this is a safety and 

tactical measure, it also precluded any knowledge in 

appellant that the person at whom he fired his rifle on 

10/05/13 was a peace officer or public servant.
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ARGUMENT

ISSUE I

When the defense requested a jury instruction on 

self-defense in these causes at trial, it was denied by 

the trial court. (RR Vol. 7, pp. 5-9). The trial judge 

gave more than one reason for denial. One reason was, 

“The law is also clear that if you want to assert your 

right to self-defense you must first admit the elements 

of the offense that has been charged. The defendant

has pled not guilty to all of the elements of the 

offense as charged and therefore has not qualified 

himself to claim the right to self-defense.” (RR Vol. 

7, p. 9, lines 8-13)(italics added)

Appellant’s trial counsel filed in the clerk’s 

record of each cause his proposed, but denied, jury

charge on self-defense. (CR 13-11-9140, pp. 43-49; CR 

13-11-9158, pp. 24-30; CR 13-11-9159, pp. 24-30) 

There can be a difference between denying the 

elements of the offense and merely pleading “not 

guilty” at the outset of a criminal trial. By pleading 
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“not guilty”, an accused activates his presumption of 

innocence and puts the State to its proof beyond a 

reasonable doubt. It requires the government to 

produce evidence in open court and meet its burden of 

proof. A defendant can then, as the trial progresses, 

admit the elements of the offense, through its own or 

even State’s witnesses, and offer the justification of

self-defense. By making these remarks, the trial judge 

conveyed his erroneous belief that, by merely lodging a 

“not guilty” plea at the trial’s outset, an accused

procedurally bars himself from even presenting a selfdefense claim at trial. This cannot be what the law 

envisioned.

A jury finding of guilty is an implicit finding 

rejecting the defendant’s self-defense theory. Saxton

v. State, 804 S.W.2d 910, 913 (Tex.Crim.App. 1991). If 

this is true, then entering a “guilty” plea before 

one’s jury immediately after the prosecutor reads aloud 

the indictment is tantamount to asking that jury to 

summarily reject one’s self-defense claim before any 
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evidence, from either side, has been presented. This 

cannot be correct.

Self-defense is a justification for one’s actions, 

which necessarily requires admission that the conduct 

occurred. See Young v. State, 991 S.W.2d 835, 838 

(Tex.Crim.App. 1999); MacDonald v. State, 761 S.W.2d 

56, 60 (Tex.App.-Houston [14th Dist.] 1998, pet. ref’d).

To raise the issue of self-defense, appellant must 

admit the committed offense and then offer self-defense 

as justification. See Young at 839. This is reiterated 

in Anderson v. State, 11 S.W.3d 369 (Tex.App.-Houston 

[1st Dist.] 2000, pet. ref’d). Appellant finds no 

language in Anderson which necessarily requires a 

defendant to specifically plead “guilty” before his 

jury at the trial’s outset to then be allowed to 

gradually admit the elements of the offense during 

trial and offer the legal justification of self-defense 

through testimony or other evidence. If evidence of 

same is then admitted, the accused is entitled to a 
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jury charge on same and may argue this defense or 

justification to his jury.

A defendant is entitled to an instruction on any 

defensive theory ... if the issue is raised by the 

evidence, whether that evidence is strong or weak, 

unimpeached or contradicted, and regardless of what the 

trial court may think about the credibility of the 

evidence. Hamel v. State, 916 S.W.2d 491, 493 

(Tex.Crim.App. 1996); Walker v. State, 994 S.W.2d 199, 

201 (Tex.App.-Houston [1st Dist.] 1999, pet. ref’d).

For this reason, the convictions in these causes 

should be reversed.

ISSUE II

In determining legal sufficiency of the evidence, 

the reviewing court views all of the evidence in the 

light most favorable to the verdict to determine 

whether any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable 

doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 
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S.Ct. 2781, 61 L.Ed.2d 560 (1979); see Vodochodsky v.

State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). In 

making this determination, the reviewing court 

considers all the evidence admitted, including 

improperly admitted evidence. Conner v. State, 67 

S.W.3d 192, 197 (Tex.Crim.App. 2001); Holberg v. State,

38 S.W.3d 137, 139 (Tex.Crim.App. 2000).

Appellant’s trial counsel made a motion for 

directed verdict, when the State rested at the 

guilt/innocence phase, in regard to the State’s failure 

to present sufficient evidence that appellant knew 

Jason McCarrell was a public servant. The trial court 

denied this motion. (RR Vol. 7, p.11)

Evidence showed at trial that McCarrell kept his 

service vehicle completely dark when responding to this 

call, using no lighting of any sort to prevent himself 

from becoming a target to appellant, who was holding a 

rifle in the dark, country night. McCarrell was only 

able to locate appellant by using thermal body sensor 
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equipment, which illuminated appellant to him through 

appellant’s body heat.

Although appellant eventually fired his rifle at 

McCarrell, McCarrell admitted at trial that he never 

announced himself as a peace officer or other public 

servant, and that he did not in fact announce his 

presence at all, to prevent appellant from targeting 

him or even knowing he was present. McCarrell did not 

yell, “Stop, police!”, or otherwise give appellant any

knowledge that he was a law enforcement officer, peace 

officer, or other public servant prior to appellant 

firing his rifle at him. In fact, McCarrell said 

nothing at all to alert appellant that he was even

there before appellant fired at him.

While appellant later hollered some anti-police

remarks and profanities as EMS personnel dressed his 

wound, this was after appellant had been shot in his 

arm and had realized that police officers were on the 

scene. (RR Vol. 4, pp. 158-159). Accordingly, these 

remarks are not evidence that appellant knew McCarrell 
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to be a public servant or peace officer when he fired 

his rifle at him minutes earlier.

Amazingly, appellant made two 911 calls to law 

enforcement of his own on the night in question after 

being shot by law enforcement, asking for help because 

“some motherfucker” had shot him in the arm. (RR SX-140 

and SX-141). Appellant’s speech sounds erratic, 

slurred, and distressed, due in part to his ingestion 

of copious amounts of alcohol and LSD. It is clear in 

SX-140 that appellant, at the time of making the call, 

does not realize he had been shot by a law enforcement 

officer. Appellant identifies himself without 

hesitation during the call as “Charles Hill” and gives 

his address as “958 CR 313 East”. (RR SX-140)

While voluntary intoxication is not a defense to 

any crime in Texas, appellant’s ingestion of beer and

liquor all day, plus LSD (hallucinogen) that afternoon,

could not have helped his powers of perception and 

observation by nightfall. See generally Tex.Pen.Code 

Ann., sec. 8.04 (a)(Vernon 2013). This mitigates 
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against him realizing that McCarrell was a policeman 

when he fired at him.

There is no evidence that appellant knew he was 

shooting at a policeman, sheriff’s deputy, trooper, or 

other law enforcement agent, or any kind of public 

servant when he fired at Deputy McCarrell.

For these reasons, the conviction for the second 

count in cause 13-11-9140 should be reversed.

PRAYER

Appellant prays that the convictions in these 

causes be reversed.

Respectfully submitted,

/s/ W. A. White

W. A. (BILL) WHITE

ATTORNEY FOR APPELLANT

POB 7422, Vict., TX 77903

(361) 575-1774 voice/fax

TBN 00788659

CERTIFICATE OF SERVICE

I certify that a true and correct copy or duplicate 

original of the foregoing has been provided to Robert 
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E. Bell, Jackson Co. District Attorney’s Office, 115 W. 

Main Street, 2nd Flr, Edna, TX 77957 via U.S. mail, fax, 

electronic delivery, or hand-delivery on this the 17th

day of June 2015.

/s/ W. A. White

W. A. White

CERTIFICATE OF COMPLIANCE

I certify that this brief contains 2,697 words.

/s/ W. A. White

W. A. White