## In the Court of Appeals Second Appellate District of Texas at Fort Worth

_______________ ____________ No. 02

- 19

- 00063

- CR

___________________________

On Appeal from the 78th District Court Wichita County, Texas Trial Court No. 59,187

- B
Before Sudderth, C.J.; Womack and W allach, JJ. Memorandum Opinio n by Justice Wallach



### J OE 

### P EARL 

### W INDHAM 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EX AS2 MEMORANDUM OP INION
Th is is an alleged road

- rage case in whic h the only eye witnesses were the complainant , the accused, and the accused ’ s adult son , who was a passenger in the
accused ’ s pick up at the time of t he in cident. The jury was pre sented with differing
stories from w hich it had to piece together the true facts of the event. The accused, appellant Joe Pe arl Windham, attempted to r aise self

- defense as a jus tification for his actions, but the trial cour t de nied h is request for a self

- d ef ense instruction t o the jury.
B ase d on our review of the entire record, w e co nclude that the trial court err ed by

re fusing W i ndham ’ s requested self

- defense instruction and that th is ref usal caused
W i ndham some harm. Accor ding ly , w e reverse Wind ham ’ s conviction for aggravated

assa u lt with a de adly we a pon and rema nd the case for a new trial

. I. PROCEDURAL BACKG ROUND 1 Law enforce me nt responded to a 911 call about a person in a pick up poi nting a
gun at a tractor

- trailer driver. A C lay County Sheriff ’ s Deputy pulled over the p ickup
driv e r , W i ndham ; conducted an investig atio n that inclu ded talking to Michael H o rton, th e tractor

- trail er driver; and arrested Windham

. A grand ju ry l ater indicted Windham for aggravated assault with a de ad ly weapo n, alleging th at Windham had “ intentionall y

or k nowingly threaten [ ed ] . . . H o rto n wi th imminent bo dil y injury by pointing a
firearm at or in t he d irection of ” Horton whi le using or exhibiting a dea dly weapon.

1 Because our di scussio n of Wind ham ’ s complaints o n appeal requires a thorough review of the e viden ce at tria l , we provid e a more deta iled explanation o f that evidence in our analysis of those complaints.3 A fter a trial at which Hort on a nd W indham were the pri mary witnesses, a jury
convicted Windham of aggravated assault a nd ass essed hi s pu nishment at five years ’ confinement and a $5,000 fine. Ho wever, the jury also recommended that Windh am ’ s sentence be suspended and th at h e be placed on c omm unity s upervision

. The trial

c ou rt sentenced Windham in accordance wi t h the jury ’ s verdict , placing him on two
years ’ community s upervision

. II. ISSUES ON APPEAL
Windham brings five issues on appeal. In two of his issues , Wind ham challenges th e sufficiency of the evidence to sup por t his conv iction , and in the othe r three issues, he challenges the trial court ’ s denial of his r e q uested j ury instruction s on nondeadly

- force self

- defense, deadly

- force self

- defense , and necessity

. We wi ll a ddress
his suffic iency issue s first because they coul d a fford him the greatest re l i e f if

sust ained

. See R oberson v. State , 810 S.W.2d 224, 2 25 (Tex. C rim. App. 1991) (per curiam)

. III. SUFFICIEN CY OF THE E VIDENCE
In his first issue , Windham argues that t he e vidence is insuff ici ent to prove beyond a reasonable dou bt that he committed aggr avat ed assault wit h a de adly
weapon
. We d isagree

. A. Standard of R eview and A pplicable L aw In our evidentiary

- sufficiency review , we view all the evid ence in the light mos t favorable to the verdict to determ ine whether an y ration al fa c tfin der could have found4 th e crime’s essential elements b eyond a reasona ble doubt. Jackson v. Virgini a , 443 U.S. 307, 31 9 , 99 S. C t . 2781, 278 9 (1979 ) ; Queeman v. State , 5 20 S .W.3d 616, 622 (T ex. Crim. Ap p. 2017). This standard giv es full pla y to the factf inde r’s responsibility t o

r esolve conflicts in the testi m ony, to weigh t he evidence, and to draw reas onable
inferences from basic f acts to ulti mate f acts. See Jackson , 443 U.S . at 319, 99 S. C t. at 2789; Queeman , 520 S.W.3d at 6 22.
The factfi n der alo ne jud ges the evidence’s weig h t a nd credibility. See Tex. Code
Crim. Proc. Ann . art. 38.04; Queeman , 520 S

. W.3d at 622

. W e may not re

- ev a luate the

ev idenc e’s weight and c redibil ity and substitute ou r judgment f or the factfinder’s. Que ema n , 520 S. W .3d at 622. Ins tead , we determine wh eth e r the necessary inferences

are r eason able based on the evidence’s cumulati ve force when viewed in the lig h t most favor able to the verdict

. Murray v. S tate , 457 S.W.3d 446, 448 (Te x. Crim. App.
2015 ); see Vi lla v. St a te , 514 S.W.3d 227, 232 (Tex. Crim. App

. 2017 ). We must presume that th e fact finder res olved any c o nflicti ng inferen ces in favor of the ver dict,

a nd we must d efer to that resolution. Mur ray , 457 S.W.3d at 44 8

– 49.
To det ermine whether the State ha s met its Jack son burden to p rove a defendant’s g uilt beyond a reasonable doubt, w e com pare the c rime’s ele m ents as defined by the hypotheticall y co rrect j u ry charge to the evidence adduced at tri al. See Jenkins v. St ate , 493 S.W .3d 583, 599 (Tex. Crim. Ap p. 2016) ; see also Febus v . S tate , 542 S.W.3d 568 , 572 (Tex. Crim. App. 2018) (“T h e ess ential ele ments of a n offens e are deter mined by state law .”). Such a charge is on e that accurately sets out t he l aw, is5 authorized by t he indi ctment, does not unneces sar ily increase t he State’s burd en of proof or restr ict the State’s theories of liab i lity, and adequ ately desc r ibes th e particula r offense for whic h th e defen d ant was trie d. Jenkins , 493 S.W.3d at 59 9. T he “law as
author ized by the indictment ” means the st atu tory elements of the char ged offense as
modified by the factual details and legal theor ies contai ned in th e charg i ng instrumen t.
See id. ; see a lso Rabb v. S tate , 434 S. W.3d 613, 616 (Tex. Crim. Ap p. 2 014) (“When the
S tate pleads a specific element of a pen al offense th at has statu tory alternatives for
th at element, the sufficiency of t h e evi de nce will be measu r ed by t he element t hat was actually plea ded, and not any alte rnative statutory elements.” )

. As appl ica ble here, a person commits a ggr avated assault if the per son intentionally or kno wingly threaten s another with imminent bodily in jury and i n doing

so uses or exhibits a deadly weapon
. Tex. Penal Code Ann. § § 22.01 (a) (2) , 2 2 .02(a )( 2)

. Thus, w e must de termine if the evidence supports a d ete rmination beyond a

r eason able doubt that Windham used or exh ibited a de ad ly we apon to intentiona lly or knowingly threaten H o rton with imminent bo dily injury

. See id

. ; De Leon v. State , 865 S.W.2d 139 , 142 (Tex. App.

— C orpus Christi

– Edinburg 1993, no pet.)

. B. Evi den ce at T rial
The events at issue occurred o n June 6, 2017, during evening rush

- hour traffic
in Wi chita Falls , as Windham and Ho rton wer e tr avel ing on a n elevated portion of

so uthbound H ighway 287 know n as th e fly ov er. The flyover h as two constant lanes of

tr avel, but b ecause it also has on

- and

- o ff r am ps that m erge ont o or sp lit away from6 the highway on bo th s ide s , it has two , three, o r four lanes of travel d epen din g on the
driv er ’ s loca ti o n . Horton was driving a Pe terbilt tru ck with an attach ed trailer that to get her were eight feet , six inches wide an d sevent y
- n ine

- feet long

. Horton was the only oc c upa nt of his vehicle, but he had been traveling with an o ther driver, Danny Willia ms, who

w as drivi n g in his own, nearly identi cal Pet e rbilt

. Horton had lost sight of Williams in
Burkbur nett and did not know where he was when the incident occur red

. Windham

was driving a pick up and was h auling a thirty

- five

- foot long ocea n

- go ing boat tha t wei ghed about six to seven thousand pounds

. Win dham ’ s adult son Chad wa s sitting
in th e fr on t

- pa ssenger seat , and his other adult son C ha nce was sitting in the
passenger

- side back s e at.
1
. Horton ’ s test i mony Hort o n testified that he travel ed on Highway 2 87 throug h Wichita F all s three
or four times a month and us ually s tay ed in the second lane from the left (la ne 2) while driving t hrough because that lane c ontinues straight through t he city

. Horton
sai d that h e first notice d Windham ’ s pickup upo n entering the fly ov er . According to
H ort on, the fl yover had three lan es at that point; Ho rton was in the middle l ane (lane 2) , and the p ickup was in the right lane (l a ne 3). A s H o rton was about to pass th e pickup and b oat , the pickup driver sped up, “ jump e d over in front of ” Hor ton , and

t hen immediat ely slowed down , causing H o rton to slow down. The pickup the n

mo ved b ack over to the righ t, i n t o lane 3. Horton sped up to go around the picku p,7 but the p icku p driver sped up a gain, moved back in front of Horton , sl owed d o wn , and then moved back ov er in to lane 3. Although l ane 3 becomes an exit ramp a t
H ighway 82, re ducing H i ghway 287 to o n ly two lanes before a right

- side on

- ramp widens it again to th ree, H o rton said t hat these events occurred before th at lo cat ion.
Horton testified he was driving fifty

- five or sixty miles per hour during this par t of the

encounter
. According to H orton , he staye d in lan e 2 to continue on s outh bound H i ghway
287

. After th ey p assed the Highway 82 exit, the pi c kup was in fro nt of him in lane 2.
After the road widene d again to three lanes, t h e pi ckup then moved over into the righ t lane (lane 3) , and as Horton pull ed a longside the picku p to pa s s , the same thing
h appened: “ he p ulled ahead of me and went back over. ” Hor ton then passed the pickup.
The pickup d river , still in lane 3, then pa ss ed Horton and did the same thing:
moved over into lane 2 from lan e 3, slowed down, and moved b a ck over into lane 3.
Be for e lane 1 became a left

- side exit ramp, the pickup driver moved t he pick up behind Horton and t hen into lane 1

. As the pickup moved alongside Horton ’s driver ’s
side window , H orto n saw a “pistol hanging out the window

- - or po in t ing up a t [him]
from ins ide the ” p ic kup in front of the front

- seat passenger ; the driv er was holdi ng the pistol

. Horton w as “ [s] ort of ” looking down the barrel of the gun because his seats rode higher than the pickup

. Ho rton describ ed the p i s tol as “ a . . . blue [

- ] barrel8 re v ol ver. ” Horton could see the driver ’ s fac e and id entified W i ndham as the person
who had pointed the gun at him

. Hort on testified that he felt threatened by the gun.
H o rt on t estified that he t hen let off the accelerat or and lean ed back in his seat

to “ get[] as f ar aw ay from [the gun] as [h e] could and mak[e ] [him sel f ] less vi sib le. ”
T he pickup driver then pulled away and moved down the road

. Horton call ed 911 but
continued to f oll ow the pickup , letting it “ get s ome dis t ance ” from him

. H o rton denied pushi ng the pickup into another s emi

- truck , crowding i t into
another la n e, o r cutting it off

. He did not recall anyt hing abou t a “ near collis ion. ” He
also den ied making any rude or obscene g e stu res , bein g a ggravated by or mad at the pickup driver ’ s cutting him off , or taking any aggressive ac tions hi mself

. 2
. The 911 call
T he trial court admitted the recordin g of Horton ’s 91 1 ca ll into evidence.
When the opera tor as ke d H o rt o n , “What ’d he ’d point [the g un ] at you for? ” Hor ton

a nswer ed , I have no i dea. A ll I k n o w i s he, he cut me of f

, a nd the n he got back
o v er in the ot her l an e a nd slowed down , and I w ent ahead and p asse d around h i m. Next thing I kn ew , h e comes speedi ng up be s ide me sticking hi s pistol ou t the windo w at me. Horton explained in more d etail tha t
h e w as coming in through town in , uh , s l ow traffic , and I we nt around , and ne xt t hin g I k n ow he shoots up beside m e and cut s me off an d t h en slows back dow n, and I just went ahea d , . . . I h ad my cruise control s et and I j ust went back a round h im. And n ext thi ng I know we ’ re coming out of town an d he ’ s spe e din g besi de me and I ’ ve g ot a pi stol hanging out t he window at me. [Emp hasis added .]9 The 911 operat or instruct ed Horton t o pull ov er when the offi ce r s pulle d ove r the pick up d r i ver . H o rton also explained to the operator that he was traveling w ith
another driver : 91 1 operator: “ Yo u ’ re in a black P eter bil t s emi ? ” Horto n: “ Y es . ” 911 oper ator: [ T alking o ver disp atch] “ RP is going to be in a black P ete rb ilt s emi. ” Horto n: “ There ’ s two of us though, don’t ge t

- I ’ m the one in front

. ” [laughs] 91 1 o p erator: “ He ’ s advi sing that there are two of him, uh, the re ’ s an o ther one tha t loo ks like hi s but he ’ s gon na be the front. ” 3
. D ep uty Wi lliam Norris a nd Norr is ’ s dash

- cam video
Cla y County Sheriff ’ s Dep uty 2 William N orris testifie d th at he stopped the pickup in response to the 911 call

. Accordi ng to Dep uty Norris, t h e dri ver an d his

two passengers claimed that they ha d bee n inv olved in an altercation w ith another
vehicle in which the pickup ’ s right , side

- v iew mirro r h i t an eighteen

- whee ler

. 3 Deputy
N orris te sti fied that he did not see any damage to the passen ger side of the bo a t or damag e to the pickup an d that there was no eviden c e of cont act on the pickup ’ s right

hand mirror

. Depu ty No rr is d id not compare the le ft

- and right

- hand mirrors , though,

2 By the time of tria l, Deputy N orris worked for t he Elec tra Police Departm ent.

3 As explained below , Windham ’s story is that wher e lane 3 of the fly o ver e nds
a s an exit ram p to the right, H o rton (in lane 1) f orce fully pushed W i nd h a m ’s pic kup (in l an e 2) int o the f ar

- ri ght la ne (lane 3) and in to a red truck.10 to dete rmine if the right

- hand mirror had been pus hed in

. He admitted t ha t he c ou l d

no t s pe cula te w hether t he mirror had been dis turbe d

. The trial court admitted f ootage f rom Deputy Norris ’ s dash

- cam into ev idence

. A f ter W indham stop p ed , he almost immediately stated, “ I got out of hi s way . . . [ unintelligible ]

. T hen he come a nd c hase d me do wn, ran me into [unin telligible ]

. ”
Windham told Dep uty Nor ri s , “ He ran m e off t he road.

. . . [R] an me int o the oth er

truc k. Tried to crush us between two trucks. ” Windham then said , He , he came ov e r in my lane twice.

. . . A ll I did was pul l up, acce lerate to go out and get in front of h im.

. . . I ha ve no earth ly idea what pissed him off at that. I w as n ’ t that close , I do not believe so. B ut then h e c ome a nd chase me down and , and ra n me in to an other truc k. I mean, he ca me to get me. Later i n the vid e o, Windh am again tol d Deputy N orris that he had hit the oth er truck w ith the pickup ’ s passenger

- s ide mir ror : they “ t ouc hed. ” Windham told t he officer, “ [ T] he guy tried to kill me . . . b etween two trucks. Tried to kill my kids

. ” H e

re peatedly s tated that the other driver h ad “ attacked ” him with hi s tractor

- trailer

. Windham a lso e laborated,
That was a ssault with a d eadl y weapon. Th a t a ut om obile, h e used that d amn truck. H e , he m ight as well ’ ve pul l ed a k nife , a gun , or so m ething like that.

. . . That ’ s at te m pted mu r der of three people , in my opinion. I wouldn ’ t h ave reacted s o badly. I would have bee n able to call. I wouldn ’ t have g o tt e n so cho ked up.

. . . I know they ’ re g rown men to you , but they ’ r e sti ll m y babies.

. . . He d a mn near wiped out my whole f

a mil y. [ De puty Norris ’ s interj ecting rem a rks omitted

. ] W hen Dep uty Norris ask e d Win dham if he had tried to speed up to get away from the

o ther driver, W i ndham responded ,11 [H] e chased me d o wn. I ’ ve got a boat

. I ’ m in a h alf

- ton truck wi t h a 24

- f

oot boa t. I ca n ’ t , I ca n ’ t run, I can ’ t hid e. . . . H e w as runn ing o ff the side of the road on t he corner with his

. . . trail er. I t ried to speed up and get around him and get in front of him. A nd h e come a nd chase d us down and ran me into tha t other damn truck

. Windha m also to ld Deputy Norris that he had tried to call 911, but that he did

not connect. C h ad said that h e did not call 911

. Windham denied poin t ing hi s gun at the other driver. He also denie d rea c hing
across the fron t s eat and p o i n ting a gun up at the other dr iver , s tating , “ No, I did n ot. I did , I did thr ow him the finger, I did throw him my fist . I did

. . . rage. I d id tel l him ,

‘ f [ *** ] y ou , m [ ***** ****** ] , g [ ** *****] tried to kil l us. ’ ” When the officer later again
asked , “ Did you ever point the weapon a t him? , ” Windham resp onded , “ No. I , I point ed my finger at him, I shook

. . . my fis t a t him, we all d i d . I rolled the w indo w down and screa med at him. Why, ‘ You , y ou t ried to kill us! W ha t the f [ ***] i s wrong with you? ’ T hat ’ s exactly w h at I said. ” Windha m then ad ded, “ I had my iPad in my
hand. I pointed my i P a d at him

. ”
4
. Clay County Sheriff ’ s Ser geant J ody Polvado and P olvado ’ s d ash

cam video Clay Co unty Sheriff ’ s Sergeant Jody Polvado assi s ted in the tra ffic stop of the pickup

. He testified that he sea rched for , located , and t ook pos session of a full y loaded b lack rev olver wi th a long barrel. 4 The s ergeant te stified that he looked over

4 The s er geant t e stifi e d t hat Windham h ad a lice nse to carry an d was cert if

ied to car r y a g un .12 the pickup “ p retty thorou gh l y ” an d “ did n’t see any da mage at all , ” including on the
passenger

- side mirror. Sergeant Pol vad o als o admitted , however, that he did not
op erate the e lectronic exten sion t o ma ke t he m i rror s go out and in; he j u st visually
examine d them. H e did not observe one mirror ’ s being pushed in closer than the
other.
Ser gea nt Polvado also s poke wit h Horton after he had pul led o ver a s instructed by the operator

. S ergeant Pol va d o te stified that Ho rton t old him th at Windham had
cut in fro nt of him so close ly that he could n o t see the motors on the boat. I n the
vide o from Se rgeant Pol vad o ’ s dash

- cam , H orton desc ribed wha t his tractor

- trailer ’ s dash

- cam wou ld have shown had it been recording that day 5 : “ It woulda s how ed that

t hey cut me off

. . . . I couldn ’ t even see the b ack

- e nd of t he mot ors on t he boat.

. . . Like I said, a ft er that, he just jumped o v e r in the righ t

- han d lane , and I just kept on going , went on past him. ” Sergeant Pol vado also interviewed Williams, who had stopped to check o n
H o rton. A ccord ing to S ergeant Polvado, W illiams told him that he was so fa r behin d
Horton that he d i d not witn ess anything

. 5
. Tro o p er Be njamin Wo lf and Wolf ’ s d ash

- cam video Department of P u blic Safety Trooper Benjamin W o lf testi fied that by the time
he arri ved , Horton ’ s and W illia ms ’ s t wo commercial tractor

- trailers were p a r ked on

5 Horton explain ed at trial that although his tracto r

- trailer is equipped w ith a dash

- cam , it did not record that day ’ s events because it had been locked inadvertently

.13 the side of t he roadway shoulder

. 6 Trooper W o lf ’ s d as h

- c am video show ed S ergeant Pol vado g iving Trooper Wolf information ab out the incident an d then b oth officers having a la rgely unin telligible conversation with Horton. After that conve rs ati on, Trooper Wo lf told Sergeant Po lvado: “ If the y did sid e swip e, t here ’ s no reason to pull

a g un. ”
T ro oper Wolf testified that when he asked Horton if he felt threat ened by
Windham ’ s acti o ns, Horton responded , “No, I w as pisse d .” T rooper Wolf ad mitte d
that befo re he interviewed Win d ham, he had already told Horto n t hat he w as going to
arrest W in dh am , mo s t likely for “ag a ssault , ” based on Horton’s stat ement. Be for e interviewin g W i ndham, Tro oper W ol f to ld Horton that h e could leave ; Horton drove

aw ay as Trooper Wolf drove ov er t o where Windham ’ s pi ckup was parked

. Trooper
W o lf h ad prev io usly t old Will iams he cou ld l ea ve because Willi ams stated that he h ad

not witness ed an ythi n g. Trooper Wolf testifi ed t hat he secured the l oaded weapon , which he described

as a long

- barr e l Smith and Wesson

. 38 caliber revolver with a synthetic w oo den

- type gri p with a blui s h

- bla ck col or to it ; he testifi e d that Horton’s de scr iption of the gun on

t he 911 call matched the gun exactly.
Tr ooper Wolf interv iewed W indh a m after reading him his Mir and a rights. The
in ter ior dash

- cam foot age from Wolf ’ s c ar s how ed that w hen Troop er Wolf asked

6 During trial , T rooper W olf ’ s rank was co rporal , but we w ill refer t o him as Tr oo per Wo lf b ecause th at wa s his rank a t the t ime of the offen se .14 Windham what had occurred , Windham responde d , “ The , the truck drive r ran us off
the road into another t ruck. W e actually tou ched t he other truck. I do n o t know wh at set him off , ” ex pla ining th at his p assenger

- side mir ror had h it the other truck. Whe n Troope r Wolf asked W indh am if he had called anybody abo ut the cr ash, Windham

res p onded that h e had tried but that h e was driving with th e boat and pushing b uttons wh ile his ph on e was l ocked , adding , “ I felt my tw o kids w er e , yo u know, I just got

atta cked wi th a deadly w eapon so I was a little bit sh ook up

. ” 7 Troop er Wolf testi f ied t hat Windham said that his pickup had been f orced off
the roa d and that his pa s senge r

- side mi rror had “ touched ” ano ther truck

. Trooper
W olf did n ot s ee a ny evid ence of damage to th e pickup’ s right

- side mir r or , and he
would have expected to see some indicati on of contac t i f the vehicles had been traveling sixty mi l e s per hour

. The trooper also admitted that he did n ot operate the
mirr or s ’ mo to rs a n d could not rul e out t hat Windham’s pi ckup had touche d another
vehicle on the highway. Trooper Wo lf testified that Windham denied poi nting a gu n at Horton or displaying a gun. Th e trooper ’ s dash

- cam video also sho w ed W i ndham de nyin g that anything ha ppene d wi th t he gun b ut having no response to the t r ooper ’ s asking how
Horton c ou ld kn ow that there was a gun in Windham ’s p ickup

. Windham said that

7 Communicat ions sup erviso rs for the W ic hita Falls Police Department and Clay Co unt y Sheriff ’ s Office testified that they coul d n ot find a ny 911 calls for a m otor

- vehicl e accident or near

- colli sion around the applic able time on t he day of the incident. Ho rto n ’ s call did n ot m entio n any mot or

- vehicle accident or near

- c ollision.15 the gu n was in his console, that Horton had attac ked h i m w ith his tractor

- trailer , th at he got “ pisse d off ” at H o rto n , and that he threw his ip od at H orton and shot him the
f in g er. Windham further complained that the officers had let Horton go, claiming that
he ha d been attacke d with th e se mi

- truck because Horton was in a road r age . Wind ham explained that he ha d tried t o c all 91 1 and claimed to have “ movies ”
of th e incident. W i n dham then explain ed that he was going to pull ov er but t h at h e had not by the time h e saw the office rs attempting to pull him over

. Trooper Wo lf

re mar ked that th e stop was about twent y mi le s away from wh ere the incident had happened, a nd W i ndham responded: “ He ’ s fol l owin g us. Th er e ’ s t wo tru ck s following

us , it wa s all the way. I , I was in fear of my lif e. ” He reiterated th at Horton had been following them and “ had just tried to run [them] off the road

. ” Trooper Wolf t old Win dha m that th e ot her driver had a dash

- c am video, and
Wi ndham re sponded: “ I hope he does. I hope he doe s . ” Troope r Wo lf interjected:

“ H e sure d oe s. ” Then Windham a ske d: “ Di d you see him try to kill us? ” Trooper Wolf resp onded : “ N o , sir, I did not. ” 8 Trooper Wo lf then a r r es ted Windham for
aggrava ted assault

. The tro o per ’ s dash

- cam vi deo also show e d tha t a f ter T roo per Wolf arrested
Windha m, W i ndham spoke with his sons and told t hem : “Don’t get

. . . fuzzy lik e I

8 Trooper Wolf te sti fied at tria l that he was unable to v iew any m aterial from t he S IM card on H orton ’s das h

- cam .16 did. ” Troop er W olf t estified that he took this statement to mean that Windham w a s sayin g , “ [D] on’t do what I di d.”
6
. Chad Windham
T he de f ense ca lled Windham ’ s adult son Chad to testify

. Chad , wh o was sitti ng in the fr ont

- passenger se a t, testifi ed about the fa m ily ’ s enc ounte r with H o r ton ’ s

tractor

- trailer and the near

- collis ion : [ W ] e were coming d o wn 287 and w e were i n the middle lane of the h ighway.

. . . And I believe ri ght a t the s plit, . . . we were m oving over into t he left

- hand l ane, and t h en I guess a tru ck b e hi nd us t hough t we had cut h i m off. But we ’ r e tot ing a boat so, you know, we ’ re goin g 6 0 mile s p er hour

. . . . We get back into the midd le lane. At that time, the tr uck dri ver on the l eft

- h and lane p ulls forw ar d. I can see him in fro n t of
me. He then de cid es to mov e into our lane, pu s hi ng us into th e rig ht

hand lane. On the ri ght

- hand lan e, t here was a r ed tr uck. We made contact with th a t vehicle just as he split. I m ean, it was seco n d s . And that ’ s ex actly wh a t ha ppened right t here. I d on ’ t know where t he s plit
was. Chad tes t ified that the i r rig h t

- han d mirro r was pushed in , expla ini ng th a t it ha ppened ju st when the red truck s p lit off and that “ [ i] f h e hadn ’ t split off, we w ould have
crashed. ” A ccording to Chad, Hor t o n p ushed them in t o t he red tr uck without making

c o ntact with the drive r ’ s side of their pickup or boat : Q. Okay. S o did he drift in his lane? A. He force fully pushed us in to that red tr uck.

. . . . Q.

. . . . Yo u ’ re say ing that he f orcefull y maneuvered, aggr ess ively, so that you r

– the vehi c le yo ur father was o perating contacted the red truck an d y et h e , in th e 79

- foot trailer going this way into you, didn ’ t contact your veh ic le?17 A

. Correc t. Q. Oka y. W a s th e ca b of Mr. Hor ton ’ s veh i c le, the truck p a rt , was it past you when he came o ver? A. Yes, si r. Q. Oka y. So Mr. Horton was ahead of y ou wh e n he fo rcefully pus hed you and your fath er and your brother into this red t ru ck
an d miss ed you, r ight? A. Yes , sir

. C had testified that he was “ [ a ] bsolutely ” in f ear for his life and that he h a d never been
tha t af raid b efore. He later test ifi e d that h e “ could have kissed that semi. ”
Ne x t, acco rd ing to Chad , th eir pickup was in t he l eft of two lanes; Horto n ha d
sl owe d dow n and moved int o the right lane

. Chad t esti fied that t hey did not accelerate

t o ca t ch u p wit h Horton : he had slowed d own while they h ad acce l erated to get back
up to the speed lim i t. C had a d mit t ed that if th e y had “ m aintained the sa me speed as
Mr. Horton did, then [they] never wou ld hav e c aught him. ” He al so testified that they

“ sped up to the sp eed li mi t and [ th at they] e n d ed up catching up with him. ” He
fu rther admitted : Q.

. . . . S o y ’ all, in f act, pursued him and caugh t him, correct? A. We caught up next to him, yes , sir

. Q. A nd you dr o ve up a long the driver ’ s side of th e 18

- w heel er, rig h t? A

. Y es, si r . Chad den ied that they ha d purs ue d H orton , agai n statin g tha t the y “ event ually caug ht up with him. ”18 A ccording to Chad , H orton was slowin g down and as they were pa ssing him ,

“ [a ] t this time, out of fea r , [Windh am] displayed his wea p on. ” Chad admi tted that
H o rton did not take any “ a ggressive mov ement ” toward them or t heir vehicle whe n the i r picku p c ame up alo ng Ho rton ’ s driver ’ s si de

. Chad further admitted that other
th an the incident w ith the red truck, which he v i ewed as aggressive , Horton did no t
h a ve an y aggression towa rd the fa mily in the pickup “ [a]t [a ny] other time

. ”
Chad denied that his fa t her poi nted the g un at anyb ody , stati ng t hat his father just “ s hook it. ” Chad also denie d that hi s f ather had lean ed over him , put the g u n across his fac e , or po i n ted the gun. When he was aske d , “ Your dad reached into th e center console of t he pickup truck and bran dish ed [the gun ] , didn ’ t he? ” Chad
answered: “ H e displa yed his w eapon, ye s, sir. ” Chad had no r ecollecti on of his
f

ather ’ s throwi ng an iPa d , “ flip [ ping ] th e bird , ” shak in g h is fist, or yelling profan iti es

at Horton

. Accor din g to Ch ad , Horton t hen slowed down and s tarted to ve er bac k but
continued to fo llow them. Chad agreed that his father was trying to avoid “ two b lack

s emis ” that were followin g th em but ad mitt ed that Horton did not attem pt t o

over take the m a nd that it was “ very p o ssible ” H orton was try i ng to get h ome . Chad
furth er testified that Horton did not pull ove r and was not showing a ny fea r or b acking down. Cha d answere d yes when asked (1) if Horton had cont i nued “to
purs u e ” the pickup and (2) if he was then “in fear for [his] sa fet y. ”19 A ltho ugh Windham had asked Chad t o call the pol ic e , Chad testified that he

cou ld n ot bec au se he was “ i n shock ” and “ terrifie d ” and “ [ n]othing was working. ”
C h ad fu rthe r testified that t hey were in “ heavy t raffic ” and that h e did not notice any
exi ts fro m the highw ay that would be easy to take wi th a b ig p ic kup pul ling a huge
boat

. Acc or ding to C h ad, i t was not eas y for Windham t o ch an g e lanes while hauling
the boat ; t he boat would fishtail if they went abo ve si xty

- five or seventy miles per
hour

. Chad did n ot n otice any r est st ops on his si de of the highway , and the s houlde r

was not w ide enough to pull the pickup and boat off t he ro a d. He c o u ld n o t recall if
ther e were ot her places to p ull over and call the police

. Chad admitted that he did not tell the of fice rs that hi s father had a g un ; the dep u ties had recov ered the gun as so on as they pulled the m over . Chad also a dmi tted
that neither he no r his father told the police t he truth. Chad said that when his father
told him not to “ b e fu zz y, ” h e w as talking about “when he produce d that pistol and
threate ne d Mr. Horton with it. ”
C had said that when he got home, he to ld h is m othe r about his father ’ s displaying the weap o n. H is fa ther called f rom jail later that day

. Th e t rial court

a d mit t e d the r ecording of the call into ev idence. In that cal l, Windham a s k ed his wife
whet her Cha d and Chance ha d told he r what ha d happened, and s he res ponded , “ Y ou

. . . lost your temp er and showed [ the] gun . ” Win d ham r epli ed , “ Ye ah.

. . . I mean t h e
guy t ried to ki ll us. ” When s peaking to his o ther son C h a n ce, Windham said, “ I messed up. ” Ch ad , on the other hand, did not think that his father had me ssed up.20 7
. W in dham
W in dh am testified that on the fl yo ver, he was in the middle of three lanes (lane 2) and t hat H o rton ’ s tract or

- trailer was in lan e 1

. Win d ham cha nged into lane 1 in
fro nt of Hort on ’ s trac tor

- trailer , passed a slow er a ut omobile, and then m o ved back
in to lane 2

. Windham then saw Horton ’ s tractor

- trailer acceleratin g and coming over ;

a red truck was in the f ar

- right lane (lane 3)

. Wi ndham ’ s pickup “ tou ch [ ed ] ” the red
truck ; Windham claime d th at Horton “ drove us a ll th e way over there and [that he , Windham, ] di d a remarkable job of not tearin g tha t highway up with eve ry bo d y out there. ” Windham testified that there was also a second s emi

- t ru ck behind him during
this inci dent with the re d t ru ck but that he had no reason to believe that it wa s W i ll iams ’ s tra ctor

- trailer : Q. A ll right. S o [Horton] slowed down? A. Yes. We a l l slowed down, all thre e of us, even the red truck. . . . . And there was also a truck behin d me

. Q. A semi truck behind you? A. Yes , sir. Q. So you were kind of box e d i n where nob ody co uld see you? A. Correct. According to Windham , t h e red tr uck exited the highway , and Horton the n went back to the middle lane. At tha t po int , t he highway went down to two lanes , and
Horton was in fr on t of him

. Horton had slowed d own to about forty mi l es per hour.21 Next, W i n d ha m s lowed down and moved to t he f a r

- left lan e (lane 1)

. According to Windham, both he and H o rton sped up initially , b u t Horton sl owed
down w hen they reac h ed a point in the road where there was a guardr ail to
Windham ’ s left : Q. [ B ot h of you ] are spee ding back up? A. Yes

. And then we got to about 6 0 miles per ho ur an d he slows dow n. H e ’ s comi n g back no w, agai n. A nd t here ’ s a guard r ai l

. Q. A guard ra il on your

– your left? A. Yes. Q. All righ t. A. Ther e ’ s no shoulder an d a g u ard r ai l there. Q. All r ight. Did t hat concern you? A. I thought here h e ’ s

– he ’ s coming aga in. Q. He ’ d al read y trie d to pus h yo u of f

– A. He ’ d already damn nea r killed all t hre e of us.

. . . . Q

. . . . . So tell me why you were conc erned a b out t he guar d rail on y our left. A

. I had no place to go. It ’ s just g onna b e a big mess. Q. And you though t he w as co ming up to

– A

. H e ’ d a lready done it o n ce. Q

. Okay. Were y ou i n fear for your life? A. Yes , s ir. Q. Were you in f ear fo r your chi ldren ’ s l i ves?22 A. I was in fea r f or them fir s t. Q. All right. So what did you do? A. Uh, I gra bbed my gun out of the c on so l e and h eld it b e t ween m y b oy ’ s legs, lik e this. I didn ’ t

– I d i dn ’ t grip it. I had it between the se three fin gers and my thumb, and I s hook i t like t h at. ( Ge stur ing) Q. Did you ever p o int it at him? A. I did n ot point that gun at that man.

. . . . Q

. Ok a y . Wh y did you s how the gun to him? A. I wanted h im to kno w th a t I could pr otect me and my

– my fa mily and my prop erty. Q. Were you trying to

– Were you making a statem ent? A. I w a s wanting him to go a way and l eav e us alone. He was in road ra ge, and h e w a s driv ing th at truck danger ously for al l of us. Q. S o what ha pp ene d then? A. He slowed down and con tinued to s tay behind me from th en on. I n further explanation of this incident, Wind ham testified t hat after he resumed driving the sp eed l imit , Horton slo wed and was “ com ing back at [h im], and [ the
p ickup was] up aga inst the guard r ail. ” W i n d ham added, “ He slow ed down, took a
l ook.

. . . I thought he was coming at us aga in, but he wa nted to see how b i g our ey es

were. That ’ s how h e loo ke d. ”
Win dham said that when he p roduced the gun, he was between Horton and a
gu ar d rail and was still in f ear fo r his sa fety

. W indham felt justi f ied in prod ucing and23 displaying th e g un becau se h e had done so in self

- defense. Howeve r , he denied

“ us [ ing ] a fir earm t o in ti midat e a nd threaten another hu man being ” on the day at
issue

. Windham al so admitted t hat Horton took no aggressive action toward him

a fter h e p roduced the gun , t hat he “ ne ver s aw t wo big black t rucks bea ring down on [him] the who le time , ” and that he had lied to Trooper Wolf a b out n o t hav ing display ed a weap on . Windham testified that he d i d not notice any pla ces to exit from the hig hway
that he could h ave ta ke n easily b ut t h at he wa s just watching Ho rton ’ s trac tor

- trailer

. The shoul de r was not wide enough to pull the boat over. H orton ’ s tractor

- tr ailer was bigger than Windham ’ s pi ckup , and W i n dham could not easily a cceler a te w ith th e boat. According to Windham , w hen he told Chan ce th at he had “ messed up , ” he

me ant that h e h ad messed up by not calling 911 because that w as the reason Trooper Wolf gave for arresting h i m. C
. Disc ussion
W i ndham ass erts that t h is ev idence is insufficient to prove bey ond a re asonable
doubt that he committed aggravated assau lt wi th a deadly weapon because he merely displayed the gun and never pointed it at Horton and because Horton w as not actu ally
threatened b y hi s ac tion s . Windham ’ s arguments invite us to view the evidence in the24 light most favora b le to the defensive evidence, contra ry to the prescribed s tandard of
review. Therefore, n either argument is pe rsu asive

. 1. No material variance
Windh am challeng es w he ther the evidence s hows that he pointed the gun at
Hort o n , as alleged in the indictment

. Acco rding to Windham, the evidence does not prove that he actually pointed the gun at Horton; therefore , the r e is a m aterial

va ri an ce between the allegations in the indictmen t and the pr oof at trial , rendering the
evid ence insufficient

. See Go lli har v. State , 46 S.W.3d 243, 2 57 (Te x. Crim. App. 2001 ) ( holding that evidenc e presented at trial that varies from indictm en t ’ s wording wil l not support conviction if the variance is m aterial and prejudices defendant ’ s subst antial
ri ghts )

. Horton tes tified that Windh am p ointed t he gun a t him and that he was looking
do wn the barrel of the gun, which was “ point ing u p at [ him ] from inside the ” pickup

. D as h

- cam vi deo showed Horton demonstr atin g sh o rtly af ter the incident how
Windham had d ispla yed the we ap on ; Hort on ’ s arm w as extend ed directly from the
sh oulder in a pointing motion

. Alt houg h Win dh am challenges on ap peal how reasonable it was for a jury to believe that Horton could h av e actually see n into the pickup, Horton testified at tria l
that his seat r o de hi gher than th e s eats i n th e pi ckup a nd t hat he was ele vated

. Wi ndha m of fe r ed no explanation at tr ial as to how Horto n could have acc urately
describe d to the 911 ope r ator that the gun w as a “ black

- blue revolver ” before the25 of ficers stoppe d W in dham a nd fou nd the weapon
. The jury was free to believe or
disbelieve any or all aspect s of H orton ’s and Wi n dham ’ s version of events

. See Jackson , 443 U .S. a t 319, 9 9 S. Ct. at 2789; Queeman , 5 20 S.W. 3d at 622

. Therefore, th e jur y was

not r equired to beli ev e Windham ’ s testimony that he merel y produc ed the gun and
held it so that H orton could see it. The evidence was sufficient to support a findi ng that Wi ndh am poi nted the
gun at Horton; thus , there is no material variance between the indic tm ent and the proof at trial. See, e.g. , Alex ander v. State , No. 02

- 18

- 00070

- CR, 2 019 WL 40488 64, at
*4 (Tex. App.

— For t Worth Aug. 28, 2019, no pet.) (mem. op., not desig nated for publication) ( determi ning that conviction was not inf i rm for lack of suffici en t evidence under Jackson when evidence at t rial and wording of indictment did no t vary ).
2. Evi dence that Horton perceived threat To support his argument that he did not t hreaten Horton with immi ne nt bodily injury , Windham focuses on the trial testimony and d ash

- cam foo tage showing that
Horton had tol d Tr ooper W olf shor t ly afte r the inci dent that he felt “ piss e d ” but di d

not “ figur e [Windham] was going to shoot

. ” Citing no authorit y , Win dh am argue s t hat

an “ essential elem ent [of ag grav ated assault with a deadly we apon by threat ] is that the [c ]omplaina nt feared imminent bodily injury. ” He th e n argues that it was impossible
that Horton “ could h ave interpreted [Win d ham ’ s ] actions in

. . . a manner as woul d
under th e ci rcumstances portend an immedi ate threat of da nger to a pe rson of
reasonable sensibility ” and that Horton was “ n either f ea rful no r ‘ threatened. ’ ”26 Although Sect ion 22.01(a)(2) “ does n ot ex plicitly in dicate whether the in tended
vict im must perceive or receive the threa t ” and altho ugh t h e Court of Criminal Appeals has not affirmatively interp rete d Section 22.01(a)(2) as requiring that a vi ctim
p erceive the threat, neither has it expressly h e l d that the statute does not require such

a percepti on. Olivas v. S t ate , 20 3 S.W. 3d 341, 345, 3 49 (Tex. Crim. App. 2006) ; see Boston v. State , 410 S.W.3d 321, 326 (Tex. Crim. App. 2013)

. Instea d, it has broadly
defined the term p erceive as “ [t]o become aw ar e of direct ly through the senses [,] . . . [ t]o take notice of [,] . . . [t]o achi eve understa nding of. ” Boston , 410 S.W.3d at 326. In
so d oing, it has held tha t the vic t im does not ha ve to perc eive the exact nature of the
threat and that varied types of e vi dence can p rove the perception of a threat : evidence
that the victim feared he c ould be inju red in some way, evidence that the victim perceived an offense had occurred , and evidence of the def endant ’ s prior actions that
affected the victim ’ s state of min d at the time of the charged offense

. See Bos ton , 410 S.W.3d at 32 7 ; Oli vas , 203 S .W. 3d at 350

– 51. Here, v iewed in the light most favorable to the verdict, the evidence s howed
that Windham lost his temper , dro ve beside Horton on t he tractor

- trailer ’ s drive r ’ s

s ide , and pointed hi s gun at Horton from i nside the pick u p
. Horton testified that he

saw the bar rel end of the gun and that it wa s Wind ham who was pointi ng the gun a t
him

. The g un was f ully l oaded whe n T ro oper Wolf se cu r ed it

. Windham hi mself
testifi ed that he pro d uced the gun to show that he could p rotect himself , his family ,27 and his prop erty and so that H orton would “ go aw ay and leave [ W indham an d his
famil y] alone. ”
Moreov er , Horton did, in fact, tes ti fy that he felt threate ne d by Windham ’ s

a c t ions and that h e took steps t o avoid being s hot a fter h e saw the gu n ; he leaned
back to avoid the p otential line of fire and let Windham pass him

. To the extent that
what Hort on told the officer s during the traf fi c st op

–– tha t he was simply angr y about
Windha m ’ s point ing the gun an d that he did not th ink Windham would actually shoot

t he gun

–– confl ict s w ith his trial testimo ny th a t he felt threatened, th e jury was entitl ed

to res olve any such conflict and determine w hic h testim ony to believe

. S ee Murray , 457 S.W.3d at 448

– 49 ; S chmidt v. St ate , 232 S.W .3d 66, 68 (T ex. Crim. App. 2007)

. W e conclude that th is evidence is sufficient f o r a rational jury to find beyond a

reason able dou b t th at Windham threatened H o rton wit h im minent b o dily injury

. 9 S ee T ex . Penal Code Ann. § 22.01(a )(2); Olivas , 2 03 S .W.3d at 34 6

– 49

. Thus, we hold that
the evide nce i s s ufficient to prove beyond a reasonabl e dou bt that Windham

9 In his second issue , Windha m argues that w e should render a judgment of acq uittal be ca use the evidence w ould have been insufficient if the trial court had given his requested defensive instructions

. Alth ough we may review t h e sufficiency of the jury ’ s rejection of self

- defe nse when th e tri al court gives su ch an ins tr uction, see Sa xton v. State , 804 S.W.2d 910, 91 3

– 1 4 & n.8 (Tex. Crim. App. 1991) , we question whether such a review is appropriat e when t he trial court h as not g i ven such an instruction, se e Taylor v. S tate , No. 05

- 02

- 01178

- CR, 2003 WL 2150 8 78 5, at *3 (T ex . App.

–– Dallas July 1, 2003, n o pet.) (not designated for publication ) . However, because the s tandard of review articul a ted in Sa xton fo cuses on whether the Stat e proved i ts case beyond a
r e asonable doubt despite the defensive e vidence , thus inc orporatin g a Jackso n review , W indham would not be entitled to a n acquittal based on our review of all the evidence in resolving hi s first is sue. Se e Saxton , 804 S. W

. 2d at 9 14 (citing Jackson ).28 committed aggravated ass au lt by t hreat wit h a deadly weapon . W e o ve rr ule
Wind h am ’ s fi rst and second issue s . 10
IV. SEL F

- DEFE NSE
In Windham ’ s third and fourth issue s , he com plains t h at the trial co urt reversibly erre d by denying his requested deadly

- force and nondeadly

- force self

de fense jur y i ns truction s under Penal Code Sect io n s 9.04 and 9.32

. A
. Stand ard of R eview Ap pe llat e review of error i n a jury charge involv es a two

- ste p p rocess. Trammell

v. State , 287 S.W.3d 3 36, 3 40 ( Tex. Ap p.

— Fort Worth 2009, no pet. ) (citing Ab dnor v.
St ate , 871 S.W.2d 726, 73 1 (Tex. Cri m. App. 1994)). Initially, we det ermine whether

error oc cu rred ; if so, we m ust th e n evaluate whether sufficien t harm r esulted from the
error to requ ire re ver sal. Abdnor , 871 S.W.2d at 731

– 32. The standard of re view for jur y
- charge error depend s o n whether the error was preserved. Jordan v. State , 593 S.W.3d 340, 346 ( Tex. Crim. App. 2020)

. Because W i ndham preserved his jury

charge complaints by requ es ting inst ructi ons, we review any error for “ some harm. ”
Id. ; s ee also Tex. Code Cri m. Proc. Ann

. a rt. 36.15; Fra n cis v. State , 36 S.W.3d 121,
123 (Tex. Crim. App. 2000 ).

10 Bec au se we conc lude that the evidence is suf fi cient to suppor t Windham ’ s convic tion for aggr av ated assault, we do no t re ach Windham ’ s altern ative argu ment that he was at most g u ilty o f deadly conduct. S e e Tex

. R. App. P. 47.1

.29 A d efe ndan t is entitled to a self

- def ense in structi on when that defensi ve issue is raised by the evidenc e, “ whe ther th at evidence is stro ng or weak , u nimpeached or

contr adicted, and regard le ss of what th e trial c o ur t may think a bout the credibility of
the d ef ens e. ” G amino v. State , 537 S.W.3d 507, 510 (Tex . Crim. App. 2017)

. In reviewing the de nial of a requ ested self

- defen se instruction, w e v iew the ev iden ce in the light most favorable to the reques ted submission to determine w hether evidence from any source wil l suppo rt the ele ments of the defens e . Id. ; s ee also Krajcovic v. S t ate , 393 S.W.3d 282, 2 8 6 (Tex. Crim. App. 2013) ( “ [E]ve n a minimu m quantity of

ev idenc e is su ff icient to raise a defense as long a s the evidence wou ld support a

ra t ional jury finding as to the defen se. ” )

. B. Appl ic able L aw on S elf

- defense
Under Se ction 9.3 1 of the T e xas Penal C o de, a person i s justifie d in u sing

non deadly force when and to th e degr ee th e actor reasonably believes the force is
immedi a tely necessary to pro tect th e actor against the oth er ’ s us e or a t temp t ed use of
unlawful force , e xce pt in the limited circumstances provided in Se ction 9.31 (b). 11 See

11 Th e on ly pot entially a pplica ble e xcepti on in Sub s ec tion ( b ) on the facts o f t his
case is Section 9. 31(b)( 4), whi ch provides t hat t he thre at of fo rce against ano t her is not justified if the actor provoked th e ot h er ’s use o r attempted us e of unlaw ful force , un less ( A) t he a ctor a bandons the encou nter or cl e arly communicate s to th e ot her his int ent to d o so reasonably believing he cannot safe ly aband on the encounte r and (B) the other neverthel ess continues or a tt e mp t s to u se u nlawfu l for c e a gainst the actor. Tex . Pe na l Code A n n. § 9.31(b)(4). Nei ther Windham nor the State co nten ds th at the eviden ce sugges ts that Windham provoked any use or atte mpted use of un lawful for ce by Horton

. T h us, we d o not address the a p pli cability of S ection 9. 31(b)( 4 ).30 Tex. Penal C o de Ann. § 9. 31( a ) ; Gamin o , 53 7 S

. W.3d at 510

. Similarly , under Penal Code Section 9.32, a p e rson is justified i n using deadly force i f he wou ld be justified in

u si ng fo rce u nd er Section 9.31 and he reaso nably belie ve s that dea dly force is immediately n ec essary t o protect hi m self again st an other ’ s us e or attempted us e of deadly force

. See Tex. P e n al C o de Ann. § 9.32(a) (1)

– (2)(A ) ; Tra mme ll , 287 S .W.3d at
341 ; see al so T e x. P e na l C o de Ann. § 9.01(3) (definin g “ deadl y force ” as f orce

“ intended or known by t he actor to cause, o r i n the mann er of its use or intended use is capable of causing, death or s erious bodily inj ury ” )

. A “ reasonable belie f ” is “ a beli e f that wou ld be held by an o rdinary a nd pr udent man in the same circumstances
as the actor

. ” Tex. Pe nal Code Ann. § 1.07(a ) (4 2 )

. De adly

- force self

- defense may not apply to the tried facts e ven if a d efendant is charged with using o r disp laying a de adly weapon

. Gamino , 537 S

. W.3d at 5 10. That is
because u nde r Penal Code Sec tion 9.04 , “ a threat t o cause death o r serious bodily
i nj u ry by the production of a weapon or othe rwise, as lon g as the actor ’ s pu r pose i s limited to creating an apprehen sio n that he will use de a dly f orce if ne ce ssar y, does n ot
constit ute the use of deadly fo rce. ” T e x. Penal C o de Ann. § 9.04. Because Section
9 .0 4 prov ides that “ [t]he t hreat of force is justified when the use of force is j usti fied by [the self

- defense] c hapter ” of the Penal Code, Secti on 9.04 is not a sep arate statutory defense; it is incorporat ed into th e law of self

- defe nse. Gamino , 537 S. W .3 d
at 510

. Thus , even thou gh Windham was charged wi th usin g a d ea dly wea pon, if the evidence presented at trial trigger ed the appli cation of Secti on 9.04, he would be31 entitled to an instruction on non d eadly force under Section 9. 31, rather than an inst ru c ti on on de a dly

- force self

- de fense under Section 9.32. See i d

. Wi nd ham r eque sted s elf

- def ense instruction s under Sections 9.04, 9.3 1, and
9.32

. T herefore, t o be entitled t o a self

- defense instru ction, Win dh a m was requ ir ed to
prese nt so me evidence at trial tr iggeri ng the applicati on o f Section s 9.04 and
9.31 (nondeadly force) or Section 9.32 (deadly force)

. See Ga min o , 537 S.W .3 d at 510.
In his brief , Windham focuses lar gely on the trial court’s refusal to gi v e a deadly

- force self

- defense instruction under Sec tion 9.32 , but in his fourth issue he also argues that the evidence tri ggered Section 9.04

. B ecause Section 9.04 is not a sta nd

alone provision and inco rporat es Section 9. 31 in the n ondeadly

- force context , we

c onstrue Windh am ’ s fourth issue a s fairly inclu ding an a rgument that the t rial court erred by refusing his req uested se lf

- defense instruction under both Section 9.04 and
Se ction 9.31. See Tex. R. App. P. 3 8. 1 (f); see a lso Gamino , 537 S.W.3d at
51 1 n.17 (“Logically, t herefore, if S ection 9.04 is trigger ed by the e vidence presente d, and if the defendant requests a s elf

- defen se instruction, then Section 9.04 and Section
9.31 wo uld be the ‘law appliabl e to the ca s e.’”). Ac c ordingly, w e first review whether
the trial cour t erred by deny ing Windham ’ s requeste d self

- de fense instruction under
Penal Code Sections 9.04 and 9 .3 1. See Ga mino , 537 S.W.3d at 510

– 11 ( noting , as court of app eal s had h eld, that if “ Section 9 .0 4 applies, then the us e of a gun does not
constitute ‘ deadly force , ’ and, there fore, [S]ection 9 .32 would b ecome in applicab le ”
because “ the use of the gun woul d, by def ault , be the use of ‘ force ’ in self [

- ] defense,32 and [S ]ection 9.31 would be th e applica bl e provision ” (quoting Gamino v. S tate , 480 S.W.3d 80 , 87 (Tex. App.

–– Fort Wor th 2015 ) ))

. C
. Evid ence R ais ed S elf

- defense Windham argues tha t the evidence shows (1) tha t he dis p layed the wea pon only

t o create an apprehen sion that he woul d use de a dly f orc e if necessar y to p rotect himself and (2) that he reasonably believed that such force was imm ed iat ely neces sary

t o protect hi msel f from H o rt on ’ s use or attempted use of u nl awful f orce . According

to Windham , this evidence was sufficient to support submissi o n of a self

- d efense
instruction

. The Stat e coun ters

–– as it did at trial

–– tha t “ no evidence s hows a n y imm edi ate necessity justifying Wind ham ’ s illegal act ” and that Windham was not
entitled to th e instr uction because he d id not conf ess to pointing the gun at H o rton as alleged in th e indictment. W e agre e with W i ndham.
1. T he c on fess i o n - an d

- avoidance requi re ment The State fir st conten ds that Win dham was not entitled to a self

- defense
instruction becau se he did not admit that he pointed a gun at Horton as alleged in the
indictmen t. Self

- defense is a confession

- a nd

- avoidance defense; theref ore, a de fendant

“ can not bot h invo ke sel f

- defen se and flat ly deny the charged conduct. ” Jordan , 5 93 S.W.3 d at 343

. Ho wever, an appellant is not r equ ired to admit the State ’ s version
of event s an d does not n ecessarily have to admit committing every elem ent of the
offense

. Gami n o , 537 S.W. 3d at 512

. Moreover, e ven an equi vocal ad mission can raise
a defense

. See Juarez v. S tate , 308 S. W.3d 398, 40 5

– 0 6 (Tex. Crim. App. 2010 ) ; see also33 Bufkin v. State , 207 S.W.3d 779, 781

– 82 (Te x. Crim. App. 2006 ) ( noting th at while “ [i] t
is certain ly true that t he defendant cann ot foist upon the S tate a crime the State did not intend to pr ose cute in order to gain [a def ensive] instruction , ” nevertheless, “ the
defendan t has the right to controver t the facts upon which the pro secution intends to rely, and that righ t includes claimi ng that the e vents unfolded in a way different th an the State has al leged ” )

. Therefore, Windh am was not re quired to specifica lly admit
that he po inted th e firearm directl y at Horton ; in stead, he was e ntitled to a Secti on 9.04 and 9. 31 ins t ructi on if there [w as ] some ev idence , even if contrad icted, that he believed the disp l ay of his gun was immediate ly ne cessary to protect himself against the victi m ’ s use or attempted use of unlawful force, that his pu rpose in displaying his w eapon was limi ted to creating a n apprehensio n that he would use deadly force if necessary, and that his con duct was not in resp onse to verbal provocation alone. Gamino , 537 S. W.3d at 512. 12
Windham tes tified that after the first i nc ident where he alleged Ho rton had tried to push his veh icle off the road that he thought Horton was “ c oming again

. ”

12 Isaacson v. Stat e , a n unpublis hed case from the Austi n Court of Appeals, does
no t command a different result

. No. 03

- 1 0

- 00866

- CR, 2013 WL 19557 99 ( Tex. App.

— Austin May 10, 2013, p et . ref ’ d) (mem. op., n ot designated for publication)

. T h e State points out that the way w e d isti ng uished Isaacson in our op inion in Gamino sh ows that the re asoning o f I saacson co n trols here

. We do no t agree because not only did I saacson predate the Cour t of Crimi nal Appe als ’s d ecision in Ga m ino

–– which did not discu ss or rely u pon our distinguishing I s

a acson in the underlyi ng opinion

–– the d ef endant in Isaacson w as cha rged with aggravated assault on a public servant and admitted only to answering his front door while holding a gun by his side, pointed at the ground , without any k nowledge that the people at his door were polic e off icers. 2013 WL 195579 9, at * 3

. Thu s, Isaacson is distinguishable , a nd we do n ot find its reasoning persuasive

.34 Th is second time, Windham was driving in the left

- hand lane with no shoulder on the road to his left, only a guardrail

. According to Windham , he perceived that Horto n was going to try to pin h is pickup agains t the guardrail ; if Horton had done so , Windham would have “ had no place to go, ” and the result would have been “ a big

mess. ” Windham testified tha t , fear ing for his life and the lives of his children , he

“ grabbe d [his] gun out of th e console ” an d showed it to H orton. Win dham explained that his purpose in displaying the gun was to let Horton know that he could p rotect himself, his family , an d his property in the hope that Horton would “ go a way and leave [them] al on e. ” And, agai n according to Win dham, after he brandished the gun,
Horton “ slowed down an d continued to stay behind [him] f ro m then on. ”
While Windham denied com mit ting an offense, he said h is purpose in holdin g the gun where Hor ton could see i t was to pr ev ent an off ense . Th is defensi v e evid ence is
some evidence th at Windham believed it was immediately necessary to d ispl ay his gun to prevent Horton ’ s attempt ed use of force, th at Windham showed the gun solely to

creat e the apprehe nsi o n that he would use it i f necess ary, and th at his u se of the gun was not solely in r esponse to verbal prov o cation ; thus , this evidence wa s suffi c ient to satisfy the confess ion

- and

- avoida nce prerequi site to obtaining a self

- defense
instruction

. 13 See Gam ino , 537 S. W.3d at 512

– 13

.

13 Even if the jury belie ved Wi ndham ’ s test imony only in p a rt

–– if it rejected his testimony th a t he did not point the g un at H orton , believing that he di d poin t the gun
a t Horton , b ut also believ ing W indham ’ s testimony that he d id so only because he w a s afraid that Horton was atte mpting t o pin him in between the t ractor

- trailer and the35 2. E v idence regardin g imminent harm dis puted
Windham next ar gues that he was entitled to a self

- d efense instruction because
some evidence shows that he believed his d isplay of t he gun was immediately
necessary. T h e State argued at tri al , and argues o n appeal, t hat Wi ndham ’ s c on duct
could not ha ve been immediately necess ary to p rotect hims elf from imminent harm
b ecause t he evidenc e shows that a fter Windha m and Chad cla imed to have had the

near

- co llision with the red truck, Wind ham had e nd ed up behind H orton in la ne
2 a nd to rea ch Horton ’ s driver ’ s side window had to have deliberate ly moved into the
left lane and accelerat e d

. T herefore , the State contends t hat Windham co uld have
avoided the next encounter

–– in wh ich Windham drove up beside t he driver ’ s si de of
Hor to n ’ s tr actor

- tra il er on the left an d either pointed or displayed the gun

–– altogether by simply re main ing behind Horton and letting him get ahead or exiting the h ighway

. At trial, th e State cited thi s cour t ’ s Tramme ll opi nio n as con t rolling on this point, an d the trial court agreed. 287 S. W.3d at 340

– 42

.

“ [I] imminent harm i s harm tha t is ready to take place

— harm that i s coming in

t h e very near future. Logical ly, then , i f conduct is ‘ immediately neces sary ’ to avoid
h arm that is immin en t, that c on duct is needed right now. ” Henl e y v. S tate , 493 S.W.3d 77, 8 9 (Tex. Crim. App. 2016)

. Thus, in t he self

- defense context , “ for ce that is

‘ imme diately nec essa ry ’ to protect on eself or another fro m a person ’ s u se of unla wful

guar d ra il

–– t h e jury could find that W i ndham was acting in se lf

- defense under Section s 9. 04 and 9.31

.36 forc e is forc e that i s ne eded at that moment

–– ‘ w h en a split [

- ] sec on d decision is required. ’ ” Id

. at 90 ( q uot ing Smith v. State , 874 S.W.2d 269, 273 (Tex. App.

— Ho uston [14th Di st.] 1994, pet. ref ’ d) , abroga ted on other grounds b y Clewis v. State , 922 S.W.2d
126 (Tex. Cr im. App. 1 996) )

. I n T ramme l l , an ag gravated assault case, several hours had passed between th e complainant ’ s thr eatening the appellant with a knife and the appel lant ’ s shooting the

co mplain ant
. 287 S .W.3d at 337

– 38. T he appellant had lef t the scene afte r the kn i fe
i ncid ent, only t o return h ou rs la ter to sit in a parked car in front of the complainant’s
home. Id. a t 337. Whil e sitting in the parked car, appe llant shot the c omplai nant after
the com plainant had driven over to appellant ’ s car and spoken to him through th e
open w indo ws . Id. at 33 7

– 39, 341. There was no evid ence that t he complainant ha d threatened the appellant physically after the complainant came out of his house and
befo re th e appellant shot him. Id. at 337

– 38, 341. W e therefore rejected the appellant ’ s
arg ument that he was enti tled t o a self

- de fense instruct ion beca use the “ ap pellant
could hav e si mply driven away from the scene ; shooting the gun was n ot an
imme diately ne cessary response. ” Id. at 341

. H ere , though, the re is so me evidence that Windham b eli eved H orton was threateni ng hi m and his sons w it h immin ent bodi ly injury

–– trying to pin the ir p ickup against a guard rail while driving at hi gh speed

–– when W indham pulled out his gun

. Howev er, the State c laims that the e vidence is undisputed that Windham , l ike th e37 defendant in Tram mell , could have avoi ded t he situation altogeth er by not drivi ng past
H orton. The evidence is not undisputed on this point, though

. Windham testi fied that he and Horton were driv ing in rush

- hour traffic and
that it was difficult to maneu ver the pickup with the boat attached. A fter the nea r

col lis ion, H or ton and Windh am b oth ac cele rate d back to about sixty mil es per hour

. Altho ugh Windham was in the left lane and Horton in la ne 2, Horton was ahead of
Windha m. Wh ile the State and tria l judge both characteriz e d th e evide nc e a s showing

o nly th at Wi nd ham had sped up to reach Horton ’ s tractor

- trailer , that evidence came
from Horton a lo ne. Chad and Windham both testi fied that Horton slowed his tractor

trailer , thus causing Windh am to pull e ven with the tractor

- tra i ler , and Windham
testified that Horton ’ s slowi ng down, combined with his prior action in fo rcing
Windham ’ s pickup into the r ed truck , caused Windham t o think t h at Horto n was going to try to pin the pickup be tween the tracto r

- tra iler and t he guard ra il

. Thus, not only was t he evidenc e about how Windham and Ho rton e n d ed up next to each other disputed , contrary to th e State ’ s ar gument , t he State ’ s position ignores that we are to
view the eviden ce

–– whether it i s con tradictory o r weak

–– i n the light mo s t favorable

t o W indham in determining whether the tria l court should have given an instruction

. See Gamin o , 537 S

. W. 3d at 510

.38 The f acts in this case are distingui sha ble from t he facts in Trammell

. 14 Windham
and H ort on w ere both driv ing large v ehicles thro ugh rush

- hour traffic

. T here is some

ev idence that Windham, percei ving that the thre at of being pushed off the road h ad

en ded, attemp ted to drive in the flow of traffic, albeit in a different lane fro m Horton , but th at a fter Windham coul d no lo nger take ef fective evasiv e action, Horton slowed
d own so that he was e ven with Wi n dham, which i n light of Horton ’ s prior actions Windham perceiv ed as a threat to pin him again st the guardr ail

. Whether Windham ’ s moving into the left lane ( where he could be put in the def ensive posi tion he claimed
he was i n ) and his belief that Horton was attem pting t o use unlawful force against him

were reasonable under the c ircumstances is a fac t question f or the jury to decide a nd not a preli m i nary question for the tria l court to res olve when dete rmining wheth er the
defe n se was raised

. See Gamino , 480 S.W.3d at 90

. Viewing the evidence in the light most favorab le to Windham, there is some
evidence that the a bove

- descr ibed circums t ances imposed a thr eat of bodily harm to

14 T h ree of the cases cite d by the State are fac tually distinguishable beca use in those cases , th ere was no ev idence t hat the complain ant s were doing anything to threa t e n the appellant s or third person s with imminent harm when the app ellan t s u se d the force at is sue. S e e Henley , 493 S

. W.3d at 89

– 90; Graves v. State , 452 S.W.3d 907 , 911

– 12 (T ex. A pp
. — Texar kana 2 014, pet. re f ’ d) ; McBride v. St ate , 359 S.W.3d 683 , 694

– 95 ( T ex . App.

— Houston [ 14th Dist .] 2 011 , pet. ref ’ d)

. T wo o f the case s a re proced ur ally distin guis hable because the trial co u r t did include a self

- defense instruction , and the focus on appeal wa s whether the evid ence nevertheles s supported the jury ’ s verdict

. S e e Hernandez v. Stat e , No. 04

- 18

- 0 021 7

- CR, 2019 WL 1 5 47 493 , at *1

– 2 , * 4 ( Tex. A pp
. — San Ant onio Apr. 10 , 2019, no pet.) (mem. op., n ot designated for publication ) ; Guerrero v. St a t

e , No. 14

- 1 3

- 00880

- CR, 2014 W L 3955157 , at *1

– 2 ( Tex. App.

— Houston [ 14th Dist.] A ug. 14, 2014, pet. ref ’ d

) (mem. op., not des ign ated for publicat ion)

.39 W i ndha m that w as “ ready to t ake place, near at hand, impending, hanging threateningly over [ his ] head, [ or ] mena cingly near . ” See Henley , 493 S .W .3d at 89.
Accor din gly , the t rial court erred by refusing Windham ’ s Section 9 .04 an d 9.3 1 self

defe nse instruction s . D. Some H arm Whe n, a s in t his case, a defendan t preserves a charge

- error complaint , t he error
req u ires r eve rsal if the error caused “ some harm , ” meani ng it was “ calcu lated to injure the right s of [ the ] defendant. ” See Te x. Code Crim. Pr oc. Ann. art. 36. 19 ; Abdnor , 871 S.W. 2d a t 732 ; Almanza v. State , 686 S. W.2d 157, 171 (Tex. Crim. App. 1985) (op

. on reh ’ g); see also Reeves v. S tate , 420 S.W.3d 812, 816 (Tex. Crim. App. 2013)

. “ Some
harm ” mean s “ any harm, rega rdless of degre e , ” A rline v. Stat e , 7 21 S. W. 2d 348,
351 ( Tex. Crim. A pp. 1986) , but it also me ans “ a ctual harm and not merely a
theoretical complain t , ” Jordan , 593 S.W.3d at 347 ; Arline , 72 1 S.W.2d at 351

. To assess harm, we m ust evaluat e the whole r ecord, including th e j ury charge, c onte sted issu es , weight of the probative ev idence , argume nts of c ounsel , and other r elevant
in formation. Jordan , 593 S.W.3d at 347.
W e conclude tha t the recor d in th is case dem onstr a tes some harm

. W indham
testified that he showed the gun to Horton to make Horton l eave him and hi s sons alo n e . Al though th e jury had to de cide w hich version of events to believe

–– Horton ’s
or Wi ndham ’s

–– even if it had believed Windham ’s ver sion it could ha ve convict ed
him unde r the jury charge it received

. Windha m ’ s entir e defense was bu i lt around his40 ju stificati on ba sed on se lf

- defense and d efense of his s ons ; he set out th is theme as early as his opening st ate ment. See Gamino , 480 S.W.3 d a t 9 1 ( “ Under the charge given to the jury, Appellant lost under both versions becau se Appellant ’ s u se o f a gun

const ituted th e unw arranted use of deadly fo rce. Nothing in the charge p rovided that Appellant ’ s conduct might h ave been justified or excused for any reason . ” ). In closing argument, the S t ate asserted that t her e wa s no dispute t ha t Windham pur posefully
p icked up the gun and emphasi zed that W indha m d id what he d id be cause he was
angry ; in other word s, he had no excuse

. Acco rdingly, we hold that Wind ham s uffered

some harm , and we sustain hi s fourth issue

. We need not reach his thir d and fifth
i ssues . See Tex. R. App. P. 47.1 ; G amino , 480 S.W.3 d at 92.
V. C ONCLUSI ON Having overrul ed Windha m ’ s fi rst and s econd iss ues and having s ustain ed his
fourth i ssue , we reverse t he trial court ’ s judgment an d remand th i s ca se for a new tria l

. See Ar te aga v. State , 521 S.W.3d 329, 340 (Tex. Crim. App. 2017) ( “ The normativ e remedy for harmful jury charge error is to reverse the c onvictions and remand for a
new trial. ” ).41 /s/ M ike Wallach Mike Wal lach Justice
Do No t Publis h Tex

. R. App. P. 47 .2(b)
Delive r ed : Febr uary 4, 2021