### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-04-00272- CR

G e r ald Va nBr ac kle , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 403RD JUDICI AL DISTRICT NO. 90340 85, H ONO RAB LE BRENDA P . KENNEDY , JUDGE PRESIDI NG

O P I N I O N A jury found appe llant Gera ld VanB rac kle g uilty of a tt e mp te d mu r d e r and a g g ravated assault. See Tex. P en. Cod e An n . § § 1 5 .01, 19.02 (West 2003), § 22.02 (West Supp. 2004-05). After finding that appellant ha d two previou s f e lo ny c o nv ic ti o n s , the district court imposed forty -y ear prison sentenc es for

eac h offe nse. Among the issues raised on a ppeal is appe llant’s asser

tion that the tr ia l c ourt e rr e d b y

re fu sin g to i ns tr

uc t th e jur

y on the law o f s e lf

-d e fe ns e . We wi ll s us ta in t his
c on te nti on , r e ve rs e the jud g me nts of c on vic tio n, and

re mand fo r a ne w tri a l.
Evidence I t was undis p u t ed at trial that appe llant shot J ohnnie Weston on the after noon of De c e mb e r

1 4 , 2 0 0 2 , o u t s i d e a

n e i g hb o r h o o d g r o c e r y s t o r e a t1 4 t h S t r e e tan d C e d ar A v e n u e in2

Austin. There was, howe ver, considera ble dispute with respec t to the circumstanc es surroundingthe shooting.
State’s wit

nesses Wes ton te sti fi e d th a t L e e Stand

be rr y g a ve him a ri de to the g ro c e ry sto re to p ur c ha se cig are ttes. Outside the store, a ppellant conf

ronted W eston brandishing a pistol and demandingthat Weston pay

him the money

he wa s owed. W eston said he tol d appellant that he did not owe him any money . Weston then gr abbed the barr el of the pistol and “w e starte d scuff ling ove r the gun.” A third person who w as later

identified as B illy Charles Warren beg an hitting Weston with a two- by -four or larg e stick. Weston said that he re lease d his gr ip on the pi stol and fell fa ce- down on the g round. Acc ording to Weston, appellant then shot him in t he bac k.

Weston testified that someone went throug h his poc kets as he la y in the street a fter being shot. H e denied being arme d. Weston a lso testified that appellant ha d previously wre cked a
car borrowe d from Weston. He said that this ha d ang ere d him at the time, but he “didn’t stay mad lo n g . ” We s to n te s ti f

ie d th a t a b o u t o n e w e e k b e f

o r e th e s h o o ti n g , a

p p e ll an t thr e a te n e d h im

with a pistol at the same g roce ry store. One of the doctors who tr eate d Weston testified that the bullet e ntere d his body “fr om the side, posteriorly

from sort of the shoulder, and went st raig ht into the s pinal cana l.” The spinal trauma le ft Weston a para pleg ic. Standberry testified that afte r droppingWeston off at the store , he had c ontinued on to a nea rby tire shop. While he was at the tire sto re , s o m eo n e drove up a nd said, “The re’ s a g uy3

lay ing in the mid dle of

the str e e t, l oo ks lik e he is d e a d. ” Sta nd be rr y c on tin ue d, “ So e ve ry

bo dy re a lly
ran a round there and looked. And I s ai d , M an, that’s Johnnie lay ing in the middle of the stree t.” Standberry

testified that he r emained w ith W eston until medical personne l and the police a rrived. He de nied taking any

thing f rom Weston’s poc kets. He also confirme d Weston’s acc ount about the incident at the store one we ek ea rlier. Kyle Tay lor was a pproac hing the 14th and Cedar intersec tion in his car when he saw three men fig hting in the stre et. Tay lor t es t i fi ed t hat one man w as lying on the g round while the other two stood over

him. “ [O] ne man was punc hing the man that was dow n on the g round. And the other one looked like he wa s try ing to take something out of his hand.” As Ta y lor was looking for a place to park, he hear d a si ng le gunshot. He looked back at the fig ht scene , wher e he sa w the
m anl yi n g i nt h e s t r e e tan d t h e o t h e r t w o m e nw a l k i n gaw ay. El iza be th R od ri g ue z liv e s o n Ce da

r A ve nu e ne ar t

he g ro c e ry

sto re . O n th e da

y in question, her attention was draw n by the sound of an a

rg ument. She stepped outside and sa w two men “shouting at ea ch other and shoving eac h other.” They ap p ea red to be wrestling over something. Athird man walke d up and beg an to hit the leg s of one of the strug g ling men. T he latter man turned a

nd beg an to run a

way . The man w ith whom he had bee n fig hting “ lifted up his hand,” which wa s holding a

pistol, and shot the fleeing man. Th e od is D anie l, Sr., ow ns an a ir c on dit ion ingre pa ir

sh op on Ce da r A ve nu e a c ro ss the stree t from the g roce ry store. He was working at the shop when he hear d a “commotion.” He looked ac ross the stree t and saw a ppellant (whom he knew) and anothe r man “ tussling, but Idid not know what they

wer e—had in the i r h ands.” A third man who was a rmed with a “ stick or limb or4

whateve r” joined the fra

y . The men then s epar ated and Daniel could see that appellant wa s holding
a ha nd g un . “ As he g ot t

he —a ft e r t

he y br ok e a

pa rt , the ind ivi du a l jus t kin d of tur ne d a lit tle bit to the—to his left, he kind of turne d a littl e bit to the left, and then he [appellant] j ust fired.” Daniel testified that the man who w as shot had “tu rn [ ed ] aw ay . . . as if may

be to flee or I

don’t know, may be g et out.” Da

niel was of the opinion that appellant deliber ately shot W eston. Theodis Danie l, J r., wa s working on a ca r outside his father ’s shop on the af ternoon of the shooting . His attention was dra wn by “a bunc h of movement” in the street. Two men, one of whom he r ecog nized as appellant, appea red to be “wrestling or play -fig hting.” Appellant ca lled out to a third man to “hit him, hit him.” The third man “ popped him one g ood time” in the lo wer back. Appellant and the man he wa s fig hting f ell to the g round, and D aniel could then se e that they
wer e strug g ling f

or control of

a pistol. App el lant “snatc hed [the g un] out of his hand,” the n he “[t] urned it ar ound with his hand and shot him one time, and t hat was it.” Daniel testified that the vic tim“ wa s tr

y ingto r un . Y ou kn ow , I c ou ld h a ve be e n w ro ng , b ut h e jus t po pp e d him and he fe ll fac e first to the g round.” I t was Daniel’s impression that appe llant had bee n defe nding himself f rom Wes ton ’s ini tia l a g g re ssi on , a nd tha t a pp e lla nt h a d ta ke n th e g un

fr om Wes ton

and sh ot h im “

jus t to make sure .” He said that Weston had nothing in his hands whe n he wa s shot, that he saw no other
wea pons, and that no one took a ny thing f rom Weston as he lay in the street be fore the police a rrived. Def ense witnesses

Billy Charles Warr en testified that he and appe llant were wi th a g roup of men standing outside the g roce ry store when Weston, who a ppear ed to be intoxi cate d, arr ived. Warre n5

was spea king to a nother individual wh en h e s ensed “ a little commotion.” He turne d and saw appellant and Weston wr estling. As Warren watche d, Weston reac hed in his pocket a nd pulled out a g un. Appellant beg an to strug g le for c ontrol of the g un and ca lled out to Warren f or help. Warr en said, “I don’t know whe re I g ot the stick from, but I starting hitting him.” All three men fe ll to the g round. Warre n said he did not see what happe ned next, but that he hear d the g unshot. “All Iknow is when I turned ba ck ar ound, the g un was in [appellant’s] hand.” He and appe llant then fled. Alton Earl Jones was one of the men standing outside the g roce ry store. He testified that as Weston approa ched, a ppellant aske d him what he wanted. “ [T] hat’s whe n he [W eston] went in h is p oc ke t and

fumbl e d a

nd pu lle d o ut t

he g un .” Wes ton c oc ke d the pis tol and wa lke d c los e r t o appellant. Appe llant pushed Weston’s arm “up in the a ir” a nd they beg an to wres t l e. Appellant called out f

or help and Warren hit Weston with the stick. Appellant and Weston fell to the gr ound and the gun fell loose. Jones said that eac h man scra mbled for the gun as t h ey go t u p fr o m the g round. “[Appellant] ended up g etting the g un first, and then Mr . Weston go t u p , h e starte d fumbling in his pocke t, like, for something .” Asked whe n the g un was fir ed, Jones replied, “When [appellant] t houg h t h i s l i fe was in dang er, be cause he wa s still fumbling in his pocke t like he had another object.” A ccor ding to Jones, afte r t he shoot ing Standbe rry took “an objec t” from Weston’s po c ke t. J esse Shaw testified that he wa lked out of the g roce ry store and sa

w Weston pointi ng a g un at appe llant. Shaw said that appellant “tried t o defe nd himself” by “try ing to g et t he g un awa

y from him.” Appe llant shouted for he lp and Warre n, who Shaw did not then know, hit Weston on the bac k of his leg . Appellant and Weston fell, but they continued to fig ht over the gun. Shaw6

testified, “Mr. Weston g ot to his fee t, and Mr. Va nBr ackle g ot up to his feet. You know, Mr. Weston meant like he was g etting rea dy to pull something” out of his pa nts poc ket. “And that was it. The g un went off

.” Shaw s ai d t h at ap p ellant did not aim the g un at Weston. I nstead, whe n appellant picked up the gun, it “just went off.” Shaw testified that he ther e wa s no question in his m ind that Wes ton ini tiate d th is i nc ide nt.
Discussion The district cour

t denied appe llant’s reque st for a se lf-def ense instruc tion. The court did, how ever , instruct the jury on what was ref err ed to at trial as the “a ccide nt defe nse.” See Ro ge rs
v . S tat e , 1 05 S.W. 3d

63 0, 63 7 ( Te x. Cr im. Ap p. 20 03 ); W ill iam s v . S

tat e , 6 3 0 S. W. 2 d

6 4 0 , 6 4 4 ( T e x. Cri m . Ap p . 1 982). The instruc tion told t he jurors that “a pe rson commits an offe nse only if he voluntarily

eng ag es in conduc t,” and it direc ted them to acquit appe llant if th ey believed or

had a
re a so na ble do ub t th a t “ the sh oo tin g wa s a re su lt o f a n a c c ide nta l di sc ha

rg e of the g un wh ile John nie Wes ton and the de fe nd ant we re str

ug g lin g or

sc uf fl ingfo r t he po sse ssi on

of the g un and wa s n ot a
v o luntary act or conduct of

the def endant.” See T ex . P en . C o d e An n . § 6
. 0 1 (a ) (W es t 2 0 0 3 ). It appea rs from the rec ord that the trial court believed that the submission of this instruction prec luded the submission of an instruction on self-de fense . When, after both sides had closed, defe nse counse l
re ne we d h is r e qu e st f

or a se lf -d e fe ns e ins tr

uc tio n, the co urt re pli e d, “ On y e ste rd ay , I

e xpla ine d to y ou that y ou could not have both the a ccide nt and t h e s elf-defe nse.” The court a dded, “I have inc lud e d the accide nt i n th e Court ’s c ha rg e , th e re by

pr oh ibi tin g y ou

fr om h a vin g the se lf

-d e fe ns e char g e.”7 I n our re view of the trial court’s ruling , we will first addr ess the question of whe ther there was e vidence raising self-de fense as an issue. Finding that there was, we will then addr ess the court’s c onclusion that the j ury instruction reg arding involuntary conduct disentitled appe llant to an instruction on self-de fense
. Was self-de

fense raised? A def endant is entitled to a

n instruction on any

defe nsive issue raise d by

the evidenc e, whether that evidenc e is wea

k or strong , unimpeache d or contra dicted, and r eg ardle ss of t h e trial court’s opinion about the c redibility of the de fense
. Gran ge r v . S tat e , 3 S.W. 3d 36 , 38 ( Te x. Cr im. Ap p. 19 99 ); Ha me l v . S

tat e , 91 6 S.W. 2d

49 1, 49 3 ( Te x. Cr im. Ap p. 19 96 ). Th is r ule is d e sig ne d to insure that the jury , not the trial court, will decide the relative cre dibilit y of the e vidence
. Granger , 3 S.W .3d at 38. A defendant ne ed not testify in order to r aise a

defe nse. Bo ge t v . S

tat e , 40 S.W .3d 624, 626 (Tex. App.—San Antonio 2001), aff’d , 74 S.W .3d 23, 31 (Tex. Crim. App. 2002). Def ensive issues may

be ra ised by

the testimony

of any witnesses, eve n those ca lled by the State. J ac k so n v . S tat e , 11 0 S.W. 3d 62 6, 63 1 (T e x. Ap p. —H ou sto n [14 th D ist .] 20 03 , p e t. r e f’ d) ; Sh e lv in
v . S tat e , 884 S.W .2d 874, 878 (Tex. App.—Austin 1994, pet. ref ’d). In decidingwhether

a def ensive theory is raised, the e vidence is v i ew ed in the light most favor able to the de fense
. Granger , 3 S.W .3d at 38. Wit h cer

tain exceptions not applicable he re, a person is justified in using de adly forc e in s e lf -d e fe ns e if

he re a so na

bly be lie ve s th a t de a dly

fo rc e is i mme diate ly

ne c e ssa ry to p ro te c t hi mse lf
a g a ins t th e oth e r’ s u se or

a tte mpt e d u se of un lawf

ul d e a dly fo rc e , a nd if a re a so na ble pe rs on

in h is8

situation would not have retr eate d. Tex. Pen. Code Ann. § 9.32. A per son has the rig ht to defend himself from appare nt dang er to the s ame ex tent as he would if the dange r were r eal. Ha me l v . S tat e , 916 S.W .2d 491, 493 (Tex. Crim. App. 1996). Section 9.32 encompa sses the traditional holding that a per son is just ified in defe nding a g ainst d ang er a s he re asonably appre hends it. Id . Whether a defe ndant’s belief

s were rea sonable under the circ umstances is a fac t que stion for the jury to decide,
n ot a pre liminary

question for the c ourt to evaluate in deter mining whe ther the de fense is raised. Ha y es v . S tat e , 7 28 S.W. 2d 80 4, 80 8 ( Te x. Cr im. Ap p. 19 87 ); see G ranger , 3 S.W .3d at 39 (r ea ff i rm i n g Haye

s and apply

ing it to mistake of f

act de fense ). Th e State argue s th a t a

pp e lla nt w a s n ot e nti tle d to a

se lf -d e fe ns e ins tr

uc tio n b e c a

us e he did not “elicit or pr oduce e vidence that he did in fac t rea sonably believe de adly

forc e wa s immediately

nece ssary

to protect him self fr om the use or thre atene d use of de adly forc e, and that he
wa s re lie ve d of the du ty to re tr e a t.” Th e State re fe rs us to the ho ldi ng of the Da lla s c ourt of a pp e a ls that to raise the issue of

self-de fense , there must be “evidence of [the defe ndant’s] state of mind or observa ble manifestations of [t he defe ndant’s] state of mind.” Re e d v . S tat e , 703 S.W .2d 380, 385 (Tex. App.—Dallas 1986, pe t. ref’ d). This argument raises the question posed in Sm ith v . S tat e , 676 S.W .2d 584, 585 (Tex. Crim. App. 1984): “[W ]h en the defenda nt does not testify , what kind of testimony is neede d to raise the issue of self- defe nse, since [self-de fense ] focuses on the def endant’ s
s u b j e c t i v e s t a t e o f

m i n d ?” I n Sm ith , th e de fe nd ant s ta bb e d th e c omp la ina

nt a ft e r t he c omp la ina

nt int e rv e ne d in
an ar g ument betwee n the def endant a nd the def

endant’ s sister. Id
. at 5 8 5 -8 6. Acc ording to the State ’s e vid e nc e , th e de fe nd ant h a d a rm e d h ims e lf

wi th a kn if e and wa s atte mpt ingto e nte r t

he ho us e9

in which his sister had taken ref ug e when the complainant g rabbe d him and pulled him awa y from the house. Id . at 586
. The c omplainant then enter ed the house , took a g un awa y from the defe ndant’s sister , left the house, a nd place d the g un in the trunk of his ca r. Id . After

this, the defe ndant ag ain tried to ente r the house and stabbed the complainant when he tried to stop him. Id
.

A def ense w itness testified that wh en t h e complaina nt left the house c arr

y ing the siste r ’ s g u n , h e p o in te d th e g u n a t th e d e f e n d an t “ li k e h e w a s g o in g to

— h e w a s s h o o ting at [the defe ndant].” Id . This witness w ent on to say that “the c omplainant g rabbe d [t he def endant] and the tw o b e g an to s c u f

f le
. [T h e w it

n e s s ] te s ti f

ie d th a t s h e h e ar d

th e c o mp la in an t s ay

to [th e d e f

e n d a n t] , ‘d o what he ha d to do, don ’t be me ssi ng wi th Da rl e ne and if he wa

nte d to hurt

so me bo dy , hur

t hi m or he was g oing to hur

t him.’” Id
. A second defe nse witness testified that afte r the alterc ation, the defe ndant told he r that the complainant “had been trying to hur t him” and that “he had take n the g un
awa y from the complainant and had sta bbed him.” Id
. The court of criminal appe als held that the testimony of these two w itnesses, “a lthough not strongand convinc ing, r aises t h e i s s ue of se lfdefe nse.” Id . at 587.

We believe that the cause befor e us is analog ous to Sm ith . Four witnesses testified that th e a lte rc a tio n b e tw e e n a pp e lla nt an d West on be g an whe n We sto n p oin te d a pis tol a t a pp e lla nt. Ac c or din g to t

he se wi tne sse s, a

pp e lla nt re sp on de d to th is a ssa

ult by g ra bb ingthe pis tol , p us hin g it
awa y , and ca lling for

help. This was an “obser vable manif

estation” of a

ppellant’s belief

that it was
nece ssary to defe nd himself ag ainst Weston’s use or threatened use of dea dly forc e. Indeed, thr ee witnesses testified to their impression that appe llant was def ending himself ag ainst Weston’s attack. Two witnesses testified that after appellant succe eded, w ith W arr en’s he lp, in disarming Weston andThe State arg ues t hat t here is no evidenc e that appe llant saw Weston rea ch into his pocket. B ut 1 if the jurors be lieved the de fense witnesses, they could rationally

in fe r that appe llant also saw Weston’s movement. 10 g aining possession of the pis t o l , W eston beg an to fumble in his pocket a s if to pull out another object. At this point, appellant shot Weston. Viewe d in the light most fa vorable to the defe nse, the 1 evidenc e cle arly

supports a finding that Weston a ssaulted appellant with a firea rm, and that a

ppellant strug g led with We s t o n to defe nd himself ag ainst this assault and obtain control of the w eapon. Under these c ircumstance s, we be lieve that the e vidence descr ibing W eston fumbling in his pocket
a s if to p ull ou t ano the r o bje c t w a s su ff ic ient to ra ise an is su e a s to wh e the r a pp e lla nt r e a so na

bly believed that Weston was reac hing for another weapon, t hat retreat was not a viable a lternative, a nd that shooting W es ton was immediately nece ssary

to protect himself a g ainst Weston’s use or attempted use of

unlawful de adly

forc e. We caution that we e x press no opinion reg ardingthe cr edibility of t he witnesses or the re lative weig ht of their testimony , the prope r infer ence s to be draw n from the e vidence , or the
rea sonablene ss of appe llant’s conduct. We hold only that the evidenc e adduc ed at tria l was suffic ient to raise a jury issue reg ardingthe use of de adly forc e in self- defe nse. Whether the e vents in question actua lly transpire d in the m anner descr ibed by the def ensive testimony

and whe ther a

ppellant’s
c o n d u c tw a s r e a s o n a

b l e u n d e r t h e c i r c u m s t an c e s ar e f

a c ti s s u e s t o b e d e t e r

m i n e d b y a j u r y.
Wa s a pp e lla nt e ntit

le d to inc ons ist

e nt d e fe nse s? When the evidenc e is inconsistent and supports m ore tha n one def ensive theor

y , the defe ndant is entitled to an instruction on ever y t h eo ry raised, e ven if the de fense s themselves ar e11

inconsistent or contra dictory
. B o o th v . S t a te , 67 9 S .W .2 d 4 98 , 5 01 (T e x. Cr im. Ap p. 19 84 ); see J oh ns on v . S

tat e , 715 S.W .2d 402, 406-07 (Te x . App.—Houston [1st Dist.] 1986), pet. ref’d , 738 S.W .2d 287, 288 (Tex. Crim. App. 1987). I n Ga rc ia v . S tat e , 492 S.W .2d 592, 595 (Tex. Crim. App. 1973), the c ourt of cr iminal appeals he ld that the evidenc e entitled the def endant to instructions on both self-de fense and ac cident. Cited in Ga rc ia and to the same eff ect a re Me rri tt v . S

tat e , 2 1 3 S. W. 94 1, 94 2 ( Te x. Cr im. Ap p. 19 19 ); Car de n v . S tat e , 138 S.W . 396, 397 (Tex. Crim. App. 1911); W esle yv . S tat e , 65 S.W . 904, 905 (Te x . Crim. App. 1901). More r ece ntly , the cour t of criminal appea ls held that a def

endant’ s reque st for an instruction on the abse nce of voluntary conduct ( which was g rante d) wa s insuffi ci en t t o aler t the trial court that he also wante d an instruction on selfdefe nse. Ro ge rs v . S

tat e , 105 S.W .3d 630, 640 (Tex. Crim. App. 2003). There i s n o t h i n g in the Ro ge rs opinion to sugg est that t h e defe ndant was not e ntitled to ins tructions on both defe nsive theories if both we re r aised by the evidenc e. Se lf -d e fe ns e , li ke oth e r c ha

pte r n ine de fe ns e s, jus tif

ie s c on du c t that w ou ld o the rw ise be cr iminal. Y

ou ng v . S tat e , 9 91 S.W. 2d

83 5, 83 8 (T e x. Cr im. Ap p. 19 99 ) ( ne c e ssi ty ); W allace v. Sta te , 75 S.W .3d 576, 587 (Tex. App.—Texarkana 2002) (se lf-def

ense) , aff’d , 106 S.W .3d 103, 109 (Tex. Crim. App. 2003). I n other wor ds, the defe ndant must “admit” vi o l ati ng the statute under which he is be ing tr ied, then off er a statutory justification for his otherwise criminal conduc t. Y oung , 9 9 1 S
. W
. 2 d

at 8 3 8
. T h u s , a d ef

en d an ti s n o ten t i t l edt o a j u ry i n s t ru ct i o no ns el f- d ef

en s e i f, t h ro u gh his ow n tes tim on y or the te sti mony of oth e rs , he c la ims that he did no t per fo rm the a ssa ult ive a c ts alleg ed, or that he did not have the r equisite cul p ab l e mental state, or both. Ex parte Nailor , 14912

S.W. 3d 12 5, 13 4 ( Te x. Cr im. Ap p. 20 04 ); Ea s t v . S t a te , 7 6 S
. W.3d 736, 738 (Tex. App.—W aco 20 02 , n o p e t.) ; W

allace , 7 5 S. W.3 d at 58 7; G i lm o r e v . S t a te , 44 S.W .3d 9 2 , 9 7 ( T e x. Ap p. —B e a

umo nt 2 00 1, pe t. r e f’ d) ; An de rso n v . S tat e , 11 S.W .3d 369, 372 (Tex. Ap p .—Houston [1st Di st. ] 200 0, pe t. re f’ d)
. “ I f a de fe nd ant . . . c a te g or ic a lly de nie s th a t he e ve n to uc he d th e vic tim of an a lleg ed assa

ult, he has eng ag ed in no conduct whic h needs justifying. H e has e ssentially denied that the allege d criminal act ever took place.” Gi lm or e , 44 S.W .3d at 97. I n eac h of these c ases, all the def ensive testimony

was to t he ef

fec t that the defe ndant did not commit the alleg ed ac ts, and the de fe nd ant w a s thus no t ent itl e d to a se lf -d e fe ns e ins tr

uc tio n b e c a

us e the re wa s no evide nce that he acte d in self-de fense
.

I nvoluntary

conduct c annot be a criminal offe nse. Tex. P en. Code Ann. § 6.01( a) ( “A person commits a

n offe nse only if he voluntarily eng ag es in c onduct”)
. As in the opi n i o n s cited
a bo ve , it c an b e argue d th a t a

de fe nd ant i s n ot e nti tle d to a se lf -d e fe ns e ins tr

uc tio n if he c on sis te ntl y
asser ts that the conduct for

which he is on trial wa s committed involuntarily
. This question is not raised he re, how ever , beca use the de fensive e vidence was not consistent. W hile there was testimony that th e g un

“ jus t w e nt o ff

,” the re wa s o the r te sti mony su pp or tin g a fi nd ing that a

pp e lla nt v olu nta ri ly and intentionally

shot W eston in self-de fense
. Be cause there was e vidence raising both involuntary conduct a nd self-de fense , appellant wa s entitled to instructions on both. We hold that the ev i d en ce raised a n issue as to whethe r appe llant acted in se lfdefe nse, and that it was err or t o d en y t h e re quested instruction on the g round that other e vidence supported an instruc tion on the voluntary conduct issue.13

Was appellant h arm ed?

B e c a u s e a

p p e l l an t p r o p e r l y r e qu e s t e d an i n s t r u c t i o n o n s e l f

- d e f e n s e , r e v e r s a l is require d if the er

ror wa s calc ulated to injure a ppellant’s rig hts. Hamel , 91 6 S.W. 2d a t 49 4; Al ma nz a
v . S tat e , 686 S.W .2d 157, 171 (Tex. Crim. App. 1985 (op. on reh’ g ). This means no more than that there must be some harm arising from the e rror . Al ma nz a , 686 S.W .2d at 171. We must consider all rele vant information re veale d by the re cord, inc luding the e ntir e j u ry charg e, the state of the evidenc e, and the arguments of counse l. Id
.

The subjec t of self-de fense came up throug hout the trial. Counsel for both par t ies discussed self- defe nse with the jury panelists during voir dire. I n fac t, the prosecutor devote d onethi rd of his vo ir dir e to t he su bje c t. We have a lr e a dy su mma ri zed the te sti mony

in d e ta il a

nd wi ll add only that counsel for

both parties que stioned witnesses, either on direc t or cross, r eg arding
ma tte rs re le va

nt t o s e lf -d e fe ns e , s uc h a s w he the r a ny thi ngha d b e e n ta

ken from We sto n’ s p oc ke ts befor e the police arr ived. During jury argument, the subject of se lf-def ense w as first ra ised by

the prosec utor: “Now, I

want to go ove r something else with y ou, and that is a wor d that y ou hear d
sever al times, probably from the time of voir dire, a nd even thr oug hout the trial, and that wor d, that term is ‘self- defe nse.’” The prose cutor we nt on to t ell the jury that self-de fense was not an issue, and had not be en included in the c ourt’s cha rg e, because it was not raised by the evidenc e. When defe nse counse l later sug g es t ed in his argument that appellant ha d been de fendinghimself, the prosec utor objecte d to “ar g ument about self- defe nse,” a nd the cour

t instructed the jury to consider only the issues in the court’ s char g e.14 The State a

rg ues that any

claim of self-de fense is ag ainst the g reat weig ht of the evidenc e. The State points to the location of Weston’s g unshot wound, the evidenc e of a ppellant’s

“ c a l m an d n o n c h a l an t ” m an n e r

a f t e r s h o o t i n g W e s t o n , t h e c o n t r a s tb e t w e e nt h e “ v ar yi n g t e s t i m o n y” of the de fense witnesses and the “cohe sive t es t imony ” of the State’s witnesses, a nd the testimony
re g ard inga

pp e lla nt’ s arm e d c on fr on ta tio n w ithWes ton on e we e k b efor e the sh oo tin g . T he State
a lso c ha lle ng e s th e c re dib ili ty of the de fe ns e wi tne sse s. As previously

discussed, the medical evidenc e wa s that the bullet entere d Weston’s body from the side, slig htly

behind his shoulder. The doc tor ag ree d that “it was more like if a pe rson
wer e twisting a

round.” Whil e this testimony is inconsistent with a finding that Weston and a ppellant
we re fa c inge a c h o the r w he n th e sh ot w a s f ir e d, it i s a lso inc on si st ent wi th t he te sti mony

of so me State witnesses t hat appellant had his bac k turned a nd was runningawa

y from Weston when the shot was fir ed. The testimony reg ardingappellant’ s demea nor af ter the shooting was, like so much of the testimony , contra dict ory . Daniel Sr. testified that appellant “c asually ” wa lked awa y afte r shooting Weston. Taylor testified that appe llant and W arr en “walked away” af ter the shooting , but “mig ht have be en wa lking a littl e fa ster than nor

mal.” Shaw testified that appellant “took of f
ru n n i n g” a ft er

t h e s h o o t i n g. Although the defe nsive testimony can be acc urate ly

char acte rized as var

y ing a nd inconsistent, the S tate’s a ssertion that its witnesses prese nted a c ohesive picture is not supported by
a revie w of the testimony
. Weston testified that he was ly ing fac e-dow n on the g round whe n he wa s shot, but the Daniels testified that Weston wa s standing and turning as if to fl ee , an d R o drig uez15

testified that Weston was running a way from appe llant. Weston t estified that appe llant approa ched him brandishing the p i s t o l , b u t Daniel J r. testified that Weston “had to be ” pointing the pistol at
a pp e lla nt b e c a us e he saw a

pp e lla nt t a ke the pis tol fr om We sto n, tur n it , th e n s ho ot. Weston’s and Standberr

y ’s testimony reg arding the incident one w eek e arlier during
w h ic h a p p e ll an t d e ma

n d e d mo n e y f

r o m We s to n a t g u np o in t le n d s s u p p o rt to th e St a te ’ s th e o r

y of the ca se. B ut the same witnesse s also testified to appell an t having wre cked Weston’s c ar, w hich
s u g g e s t s a

m o t i v e f o r W e s t o nt o a s s a

u l ta p p e l l an tan d

s u p p o r t s t h e s e l f

- d e f e n s e t h e o r

y. Th e State c or

re c tly po int s o ut t

hat de fe ns e wi tne ss Jon e s was no t a pa rt ic ula rl y
cr ed i b l e w i t n es s . He ad m i t t edh av i n g fe l o n y co n v i ct i o n s fo r th ef

t , fo rge ry , b u rgl ary

o f a b u i l d i n g,
a ssa ult , a nd c oc a ine po sse ssi on . He wa s als o noti c e a bly e va siv e duri ngc ro ss- e xami natio n. De fe ns e wi tne ss S ha

w a lso a dmi tte d havin g tw o r ob be ry c on vic tio ns . B ut We sto n h a d h is o wn c re dib ili ty problems. He de nied beingintox icated on the afte rnoon of the shooting , but admitted that he was
car rying a cra ck pipe. The medical e vidence showed that Weston’s blood tested positive for c ocaine , lending support to defe nse testimony that Weston appear ed to be intoxi cate d. When the issue is raised, it is the S tate’s bur den to prove bey ond a re asonable doubt that the def

endant did not act in self-de fense
. Tex. Pen. Code Ann. § 2.03(d) ( West 2003). Had the jury in this ca use been proper ly instructed, it ne eded only to ha ve a rea sonable doubt as to whe ther appellant’ s actions were just ified by self-de fense to rende r an acquittal. Id
. Fr om a full examination of the re cord, w e ca

nnot state with c onfidenc e that there was no rea sonable possibility that the jury would have f

ound that appellant a cted in sel f- d ef en s e. See B oget , 4 0 S. W. 3 d a t 6 2 7
- 2 8
. WeWe note, howeve r, that the State conce des that the ag g ravated assault was included within the 2 attempted murde r, and that appellant’s c onvictions for both offe nses violate the double je opardy g uara ntee a g ainst multi ple punishments f or the same offe nse. Se e Il lin ois v . V ita le , 447 U.S. 410, 41 5 ( 19 80 ); Ce rv an te

s v . S tat e , 81 5 S.W. 2d 56 9, 57 2 ( Te x. Cr im. Ap p. 19 91 ); Et hr idge v . S

tat e , 648 S.W .2d 306, 306 (Tex. Crim. App. 1983). 16 the re fo re c on c lud e that th e c ourt ’s re fu sa l to ins tr uc t th e jur

y on se lf -d e fe ns e c a

us e d s ome ha

rm to appellant. Points of err or one a nd two are sustained. Be cause we f

ind that appellant’s se lf-def ense points pre sent reve rsible er ror, we do
no t a dd re ss h is o the r p oin ts o f e rr or . Th e jud g me nts of c on vic tio n a

re reve rse d an d th e c a

us e is 2
re mand e d to the dis tr ic t c ou rt fo r a ne w tri a l.

__________________________________________

Bob Pembe rton, J ustice Be fore Chief J ustice L aw, Justi ces Patter son and Pemberton Reverse d and Remande d Filed: Nove mber 4, 2005 Pub lis h