NO. 12-17-00080-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ROBVIA LENEICE SIMPSON, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

§

§

§

APPEAL FROM THE 87TH 

JUDICIAL DISTRICT COURT

ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Robvia Leneice Simpson appeals her convictions for assault on a public servant (Count 

One) and aggravated assault with a deadly weapon (Count Two). In a single issue, Appellant 

argues the trial court improperly denied her request for a self-defense instruction in the jury 

charge with respect to Count Two. We reverse and remand Count Two and affirm with regard to 

Count One.

BACKGROUND

In 2015, Appellant pleaded “guilty” to the offense of abandoning and endangering a child 

in Houston County. Pursuant to a plea agreement, she received one year of deferred adjudication 

community supervision. While on community supervision, Appellant was arrested in Anderson 

County. Houston County filed a motion to adjudicate guilt and requested that Appellant’s 

community supervision be revoked based in part on the alleged crimes committed in Anderson 

County. The motion to adjudicate guilt alleged that Appellant violated several terms of her 

community supervision, including:

In that the Defendant, Robvia Simpson, in the State of Texas and County of Anderson and while 

during the term of said community supervision, on or about the 21st day of September, 2015, did 

then and there [i]ntentionally, knowingly, and recklessly cause bodily injury to Robert Simmons by 

hitting him on the head with an ashtray.
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In that the Defendant, Robvia Simpson, in the State of Texas and County of Anderson and while 

during the term of said community supervision, on or about the 21st day of September, 2015, did 

then and there [i]ntentionally, knowingly, and recklessly cause bodily injury to Code Rice, 

hereafter styled the complainant, by hitting him, choking him, and scratching the back of his head 

and neck with her keys, or fingernails, which caused bodily injury, and the defendant did then and 

there know that the complainant was then and there lawfully discharging a lawful duty, to-wit: 

Complainant had lawfully arrested the Defendant for aggravated assault.

Appellant pleaded “true” to all of the allegations, was found “guilty,” and was sentenced to six 

months confinement.

A grand jury subsequently returned an indictment against Appellant in Anderson County. 

Count One of the indictment alleged Appellant committed assault on a public servant while 

exhibiting a deadly weapon, to wit, her keys, against Rice. Count Two accused Appellant of 

committing aggravated assault with a deadly weapon, to wit, an ashtray, against Simmons. Other 

than the deadly weapon charges, the accusations in the indictment parallel the accusations in 

Houston County’s motion to adjudicate guilt. Appellant pleaded “not guilty” to both counts and 

the matter proceeded to a jury trial in Anderson County. 

During trial, Appellant testified that she struck Simmons with the ashtray in self-defense. 

At the charge conference, Appellant submitted a self-defense instruction to be included in the jury 

charge. The State argued that because Appellant pleaded “true” to the allegation that she 

committed the offense against Simmons when her community supervision was revoked in 

Houston County, res judicata barred her from asserting self-defense in the Anderson County 

proceeding. The trial court agreed and refused to submit the instruction. Appellant objected to 

the charge’s omission of the self-defense instruction. 

The jury found Appellant “guilty” of the lesser included offense of assault on a public 

servant and “guilty” of aggravated assault with a deadly weapon. Following the punishment 

phase, the jury assessed punishment at imprisonment for ten years on Count One and eleven years 

on Count Two. The trial court entered judgment in accordance with the jury’s verdict and 

ordered the sentences run concurrently. This appeal followed.

CHARGE ERROR

In her sole issue, Appellant argues that the trial court erred when it refused her request to 

instruct the jury on the issue of self-defense with regard to Count Two of the indictment.1 At trial 

 

1 Appellant presents no complaints regarding her conviction for Count One of the indictment.
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and on appeal, the State does not dispute that the evidence raised the issue of self-defense. 

Instead, the State contends that Appellant is barred from arguing self-defense by res judicata. 

According to the State, because Appellant did not assert self-defense in the Houston County 

revocation proceeding, she could not do so at trial in Anderson County.

Standard of Review and Applicable Law

The review of an alleged jury-charge error in a criminal trial is a two-step process. 

Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). First, an appellate court must 

determine whether there was error in the jury charge. Id. Second, if there is charge error, the 

court must determine whether there is sufficient harm to require reversal. Id. at 731–32. The 

standard for determining whether there is sufficient harm to require reversal depends on whether 

the appellant objected. Id. at 732. If the appellant objected to the error at trial, the appellate court 

must reverse the trial court’s judgment if the error “is calculated to injure the rights of the 

defendant.” TEX. CODE CRIM. PROC. ANN. art. 36.19 (West 2006). This standard requires proof 

of no more than some harm to the accused from the error. Almanza v. State, 686 S.W.2d 157, 

171 (Tex. Crim. App. 1984). An appellant who did not raise the error at trial can prevail only if 

the error is so egregious and created such harm that he has not had a fair and impartial trial. Id. 

“In both situations the actual degree of harm must be assayed in light of the entire jury charge, the 

state of the evidence, including the contested issues and weight of probative evidence, the 

argument of counsel and any other relevant information revealed by the record of the trial as a 

whole.” Id. In assessing whether the trial court erred by denying a requested defensive 

instruction, an appellate court must examine the evidence offered in support of the defensive 

issue in the light most favorable to the defense. Id.

The penal code states that a person is justified in using force against another when and to 

the degree he reasonably believes the force is immediately necessary to protect himself. TEX.

PENAL CODE ANN. § 9.31(a) (West 2011). And deadly force may be used to defend oneself if he 

“reasonably believes the deadly force is immediately necessary” to protect himself from the use 

or attempted use of unlawful deadly force. Id. § 9.32(a)(2)(A) (West 2011). The penal code 

defines a “reasonable belief” as one that would be held by an ordinary and prudent man in the 

same circumstances as the actor. Id. § 1.07(a)(42) (West Supp. 2017). Where the evidence raises 

the issue of apparent danger, the court, in instructing the jury on the law of self-defense, should 

tell the jury that a person has a right to defend from apparent danger to the same extent as he 
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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. Jones v. State, 544 S.W.2d 139, 142 (Tex. 

Crim. App. 1976).

Evidence of Self-Defense

According to the record, Appellant and Simmons were roommates at the time of the 

offense. Appellant testified that approximately one month before the offense, she had an

altercation with Simmons. In that altercation, she was arguing with her boyfriend when Simmons 

inserted himself into the argument and grabbed Appellant’s shirt. She asked him twice to let go 

and a fight ensued when he refused. During the fight, she and Simmons pulled each other’s hair 

and ended up on the ground. Appellant’s boyfriend broke up the fight. 

Appellant testified that on the day of the offense, she and her boyfriend were home 

watching Netflix most of the day. At some point, Simmons arrived home and began watching 

with them. Appellant stated that Simmons had been drinking since his arrival. Simmons 

complained about the internet buffering slowly and asked Appellant if she wanted him to fix it. 

After Appellant said “no,” Simmons continued complaining, which escalated into an argument. 

During the argument, Appellant went to the bathroom. When she returned, Simmons “jumped in 

[her] face” and was cursing. According to Appellant, Simmons attempted to grab the ashtray but 

she “snatched it” before he could. She testified that she grabbed the ashtray because she 

remembered him “putting his hands on [her]” during their previous encounter. Appellant stated 

that Simmons pushed her and she swung the ashtray as she fell backwards. He stumbled and 

grabbed the television to steady himself but he fell, along with the television and monitor. 

Appellant attempted to leave and go to her room, but Simmons jumped up and grabbed her hair. 

She started swinging her arms trying to defend herself and he threw her on the couch. Their other 

two roommates separated them, and Simmons called the police. Appellant testified that she will 

protect herself if a person puts his hands on her, but contended that she does not start fights.

Simmons testified that he had been drinking prior to his altercation with Appellant on the 

day of the offense and was “pretty lit.” According to Simmons, Appellant arrived home after 

dark, grabbed the remote, and changed the channel on the television. Simmons testified that the 

two exchanged words and when he stood up, “I guess she thought I was going to hit her, because 

that’s when she struck me with the ashtray,” and that “she perceived that [the act of standing up] 
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as a threat.” When Appellant hit him with the ashtray, he fell over. Simmons testified that he tried 

to stand up, but Appellant got on top of him and began hitting him. 

Simmons admitted that he and Appellant got into another fight a few weeks before the 

offense. Regarding the offense, he testified, “She probably assumed – I was drunk and cursing at 

her, and yelling, and when I went to stand up, she probably assumed I was fixing to hit her, so she 

struck me first.” When asked if Appellant was “safe to assume that [he was] going to put [his] 

hands on her,” Simmons responded “yes.”

Officer Cody Rice of the Palestine Police Department testified that, at the scene of the 

offense, Appellant claimed self-defense and claimed that Simmons struck her first. Officer Rice 

stated that Appellant asserted that she was pushed first. However, he and the other officers 

decided that Appellant picked up the ashtray before being pushed. Officer Rice stated that 

Appellant must have been anticipating something when she picked up the ashtray. 

As previously stated, the parties do not dispute that the evidence at trial raised the issue of 

self-defense. And we need not “decide whether appellant’s claim of self-defense is strong or 

credible, only that there is some evidence such that the trial court should have included a selfdefense instruction in the jury charge.” Lozano v. State, No. 05-14-00593-CR, 2016 WL 

2756438, at *3 (Tex. App.—Dallas May 9, 2016, no pet.) (mem. op., not designated for 

publication); see Smith v. State, 676 S.W.2d 584, 586–87 (Tex. Crim. App. 1984) (“It is 

axiomatic that when properly requested, the trial court must instruct the jury on every defensive 

theory raised by the evidence, and it makes no difference whether such evidence or testimony 

was produced by the prosecution or the defense, or whether such defensive evidence or testimony 

might be strong, weak, unimpeached, or contradicted[]”). Given that the above evidence 

constitutes some evidence of self-defense, we now proceed to determine whether that defense 

was barred by res judicata. See Jones, 544 S.W.2d at 142; see also Beltran v. State, 472 S.W.3d 

283, 290 (Tex. Crim. App. 2015) (“A defendant’s testimony alone is sufficient to raise a 

defensive issue requiring an instruction in the charge[]”); Beckstrand v. State, No. 02–12–

00480–CR, 2015 WL 1544077, at *7 (Tex. App.—Fort Worth Apr. 2, 2015, no pet.) (mem. op., 

not designated for publication) (“Evidence offered in support of a defensive issue is reviewed in 

the light most favorable to the defendant[]”).
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Error in the Charge

Under the doctrine of res judicata, if an issue of ultimate fact has been determined by a 

final and valid judgment, the issue cannot be litigated again in a future lawsuit by the same 

parties. Getman v. State, 255 S.W.3d 381, 384 (Tex. App.—Austin 2008, no pet.). To ascertain 

whether an issue is precluded, “courts must determine (1) exactly what facts were necessarily 

decided in the first proceeding, and (2) whether those necessarily decided facts constitute 

essential elements of the offense in the second trial.” Id. The court of criminal appeals has held 

that res judicata can arise from determinations made in a probation-revocation hearing. Ex parte 

Tarver, 725 S.W.2d 195, 197 (Tex. Crim. App. 1986). The court has also determined that two 

prosecuting authorities can be the same party for res judicata purposes. Ex parte Doan (Doan 

II), 369 S.W.3d 205, 213 (Tex. Crim. App. 2012). This is because a prosecuting authority who 

alleges a criminal offense in a community supervision revocation hearing represents the same 

state interests as a prosecuting authority who later alleges the same criminal offense in a trial. Id. 

at 212–13. 

On remand in Doan, the Fort Worth Court of Appeals explained that the trial court 

conducting Doan’s revocation hearing did not enter a finding of “not true” regarding the theft 

allegation in the motion to revoke. Ex parte Doan (Doan III), No. 03-08-00704-CR, 2012 WL 

6698987, at *1-2, 4 (Tex. App.—Fort Worth Dec. 21, 2012, pet. ref’d) (mem. op., not designated 

for publication). Rather, the trial court essentially overruled the motion to revoke, which was 

insufficient to bar a subsequent prosecution. Id. at *4. Thus, Doan failed to meet his burden of 

demonstrating that a factual issue was decided in a prior proceeding that barred the Travis County 

Attorney from prosecuting him for theft. Id. at *5. Accordingly, the cases applying Doan II and 

Tarver in the revocation context concern cases in which there were no fact findings on the 

underlying allegations in the revocation proceeding and the State subsequently attempted to 

prosecute the defendant for that same crime in a later trial. See Doan III, 2012 WL 6698987, at 

*1–2; Ex parte Claudio, No. 01-15-00905-CR, 2016 WL 3571259, at *1, 3 (Tex. App.—Houston 

[1st Dist.] June 30, 2016, pet. ref’d) (mem. op., not designated for publication) (“because the trial 

court did not make a finding adverse to the State, the State is not collaterally estopped from 

prosecuting appellant for DWI in Harris County[]”). In the case at hand, however, the underlying 

allegations were all found “true.”
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Moreover, the State characterizes the issue in the present case as one of “res judicata” 

instead of “collateral estoppel.” Doan II addressed res judicata in a broad sense without 

distinguishing between claim and issue preclusion. In her dissent, Presiding Judge Keller 

explained that “res judicata” is sometimes used as a broad term to describe both claim preclusion 

and issue preclusion. Doan II, 369 S.W.3d at 221 (Keller, P.J., dissenting). At other times, the 

term is used in a more narrow sense to refer only to claim preclusion, which leaves the concept of 

issue preclusion to be described as “collateral estoppel.” Id. Justice Keller explains:

[T]he question before us is one of issue preclusion, not claim preclusion. Whether a person should 

be convicted of a crime and whether his probation should be revoked are separate claims. On the 

other hand, whether a crime was committed is merely an issue that might arise in a probation 

revocation context. So, here, we are concerned with collateral estoppel.

Id. at 222. This distinction is important because the doctrine of collateral estoppel may carry 

limitations in criminal cases that do not exist in civil cases. York v. State, 342 S.W.3d 528, 549 

(Tex. Crim. App. 2011) (citing Standefer v. U.S., 447 U.S. 10, 100 S. Ct. 1999, 64 L. Ed. 2d 689 

(1980)).

The court of criminal appeals has yet to definitively articulate the differing standards of 

proof between res judicata and collateral estoppel in the criminal context. Because the doctrine 

of res judicata began in civil law, where the criminal standards are unclear, we are guided by the 

standards set forth by the Texas Supreme Court in the civil context. See Ashe v. Swenson, 397 

U.S. 436, 443, 90 S. Ct. 1189, 1194, 25 L. Ed. 2d 469 (1970); State v. Waters, No. 02-16-00274-

CR, 2017 WL 2877086, at *6 n.2 (Tex. App.—Fort Worth July 6, 2017, pet. granted) (mem. op., 

not designated for publication) (Sudderth, J., concurring). In civil cases, res judicata bars the 

relitigation of claims actually litigated as well as those that should have been litigated, as long as 

the claims arose out of the same transaction. Waters, 2017 WL 2877086, at *6 n.2 (Sudderth, J., 

concurring) (citing Igal v. Brightstar Info. Tech. Grp., 250 S.W.3d 78, 86 (Tex. 2008)). 

Collateral estoppel is more restrictive, barring only the relitigation of a specific issue already 

decided in an earlier case and focusing specifically on what was both actually litigated and 

essential to the judgment. Id. (citing Van Dyke v. Boswell, O’Toole, Davis & Pickering, 697 

S.W.2d 381, 384 (Tex. 1985)). 

For collateral estoppel to apply, the same facts sought to be litigated in the second suit must have 

been “fully litigated” in the first suit, and they must have been “essential to the judgment,” 
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meaning that if the original judgment could be independently supported on more than one 

determination, neither determination would be essential to the judgment.

Id. (citing Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 522 (Tex. 

1998)).

In this case, as in Doan II, we are concerned with collateral estoppel or issue preclusion. 

Unlike in Doan II, however, the present case involves a situation in which the underlying 

allegation, i.e., the assault against Simmons, was found “true.” Thus, we will apply the concept 

of collateral estoppel to the specific facts of the case at hand.

In the Houston County case, the State alleged Appellant violated ten provisions of her 

community supervision. Appellant pleaded “true” to all of the State’s alleged violations. The 

trial court determined that Appellant committed each of those violations. The alleged assault on 

Simmons was only one of such violations. When the State alleges several violations in its 

revocation motion, the revocation order is sufficient if only one violation is supported by a 

preponderance of the evidence. See Bigham v. State, 233 S.W.3d 118, 121 (Tex. App.—

Texarkana 2007, no pet.) see also Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.—Texarkana 

2003, pet. ref’d) (to revoke probation, State must prove every element of at least one ground for 

revocation by a preponderance of the evidence). Accordingly, because the trial court’s revocation 

of Appellant’s community supervision could have been independently supported by any one of 

Appellant’s violations of her community supervision, none of the allegations are considered 

“essential” to the judgment. See Waters, 2017 WL 2877086, at *6 (Sudderth, J., concurring) 

(citing Johnson & Higgins of Tex., Inc., 962 S.W.2d at 522); see also Bigham, 233 S.W.3d at 

121; Pierce, 113 S.W.3d at, 436. As a result, Appellant’s alleged assault on Simmons was not an 

essential element of the Houston County revocation proceeding and Appellant’s self-defense 

claim is not barred by collateral estoppel in the Anderson County proceeding.

Moreover, Appellant’s self-defense claim is not barred for an additional reason. A

probation-revocation proceeding does not place the defendant in jeopardy because a revocation 

hearing is not a criminal prosecution; that is, it is not a proceeding that could result in a 

conviction. Doan II, 369 S.W.3d at 219 (Keller, P.J., dissenting). Some courts have also held 

that a probation-revocation hearing is not a “valid and final judgment” for collateral estoppel 

purposes because it is not a final determination of the probationer’s involvement in the new 

criminal activities. Id. Accordingly, there is no final judgment on Count Two in this case, for 
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purposes of collateral estoppel, given it was merely a ground for revocation. For the above 

reasons, the trial court erred by refusing Appellant’s requested self-defense instruction.

Harm Analysis

Because Appellant objected to the omission of a self-defense instruction in the 

jury charge, she is entitled to a reversal if the record shows she suffered some actual harm from 

the error. See Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). When performing a 

harm analysis, we consider the jury charge as a whole, the arguments of counsel, the entirety of 

the evidence, and any other relevant information in the record. Id.

Chapter Nine of the Texas Penal Code (which contains the above-referenced sections 9.31 

and 9.42) is entitled “Justification Excluding Criminal Responsibility.” TEX. PENAL CODE ANN.

§§ 9.01–.63 (West 2011). It includes justifications such as necessity and public duty, and explains 

the justification aspects of protection of persons and property. Young v. State, 991 S.W.2d 835, 

838 (Tex. Crim. App. 1999). If the conduct in question is justified under one of the provisions of 

Chapter Nine, it is a defense to prosecution. TEX. PENAL CODE ANN. § 9.02 (West 2011); see 

Young, 991 S.W.2d at 838. However, a defendant is entitled to an instruction involving one of 

the justification defenses “only ... when the defendant’s defensive evidence essentially admits to 

every element of the offense including the culpable mental state, but interposes the justification to 

excuse the otherwise criminal conduct.” Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 

2007).

Appellant never denied striking Simmons with the ashtray. Rather, she admitted striking 

Simmons and claimed that she did so in self-defense. According to Appellant, she only swung 

the ashtray after Simmons pushed her down. In addition, Appellant stated that she had a previous 

altercation with Appellant in which he grabbed her shirt and pulled her hair. Simmons himself 

admitted that Appellant was reasonable in assuming that he would hit her because of their 

previous history and his being intoxicated. Officer Rice also testified that it appeared Appellant 

anticipated something when she grabbed the ashtray. Furthermore, Appellant’s counsel made it 

clear during opening argument that Appellant’s defensive theory was that she acted in selfdefense.

After reviewing the charge, evidence, and arguments of counsel, we conclude that this is a 

case in which the jury was “without a vehicle by which to acquit a defendant who has admitted to 

all the elements of the offense.” Cornet v. State, 417 S.W.3d 446, 451 (Tex. Crim. App. 2013) 
10

(explaining harm generally associated with a denied self-defense instruction); see, 

e.g., Beckstrand, 2015 WL 1544077, at *10 (“Because Appellant admitted striking Noah, without 

the self-defense instruction, Appellant admitted the offense.”). Without the self-defense 

instruction, the jury had no option but to find Appellant guilty. See Cornet, 417 S.W.3d at 451. 

Consequently, Appellant suffered some harm as a result of the omission of the self-defense 

instruction. See Miller v. State, 815 S.W.2d 582, 586 n.5 (Tex. Crim. App. 1991) (unless all harm 

is abated, an appellant suffered “some” harm); see also Beckstrand, 2015 WL 1544077, at *10.

“[A]ny harm, regardless of degree, which results from preserved charging error, is sufficient to 

require a reversal of the conviction.” Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 

1986). We sustain Appellant’s sole issue.

DISPOSITION

Having sustained Appellant’s single issue, we reverse the trial court’s judgment on Count 

Two and remand for further proceedings consistent with this opinion. Further, we affirm the 

trial court’s judgment on Count One.

JAMES T. WORTHEN

Chief Justice

Opinion delivered April 18, 2018.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

APRIL 18, 2018

NO. 12-17-00080-CR

ROBVIA LENEICE SIMPSON,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 87th District Court 

of Anderson County, Texas (Tr.Ct.No. 87CR-16-32761)

THIS CAUSE came to be heard on the appellate record and the briefs filed 

herein, and the same being considered, because it is the opinion of this court that there was error 

in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court 

that the judgment be reversed with regard to Count Two and the cause remanded to the trial 

court for further proceedings in accordance with the opinion of this court; that the judgment be 

affirmed with regard to Count One; and that this decision be certified to the court below for 

observance.

James T. Worthen, Chief Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.