TEXAS, NO. 09-13-00459-GR, MEiyCRANDUVi GPHMICN; pps: 1-12. PHYSICAL SQUABBLE.
SECTION 9.31 OF THE TEXAS PENAL CODE PROVIDES THAT A PERSON IS "JUSTIFIED
IN USING FORCE AGAINST ANOTHER WHEN AND TO THE DEGREE HE REASONABLY BELIEVES
THE FORCE IS IMMEDIATELY NECESSARY TO PROTECT HIMSELF AGAINST THE OTHER'S
USE OR ATTEMPTED USE OF UNLAWFUL FORCE". TEX. PEN. CODE ANN. §9.31 (WEST2011). [THERE]FORE, "A DEFENDENT IS ENTILTED TO AN INSTRUCTION ON THE LAW OF SELF- DEFENSE IF THERE IS SOME EVIDENCE THAT HE INTENDED TO USE FORCE AGAINST ANOTHER
AND HE DID USE FORCE, BUT HE DID SO ONLY BECAUSE HE REASONABLY BELIEVED IT
WAS NECESSARY TO PREVENT THE OTHER'S USE OF UNLAWFUL FORCE". EX PART, NAILOR
149 S.W.3d 125, 132 (TEX.CRIM.APP.2004)
"A DEFENDENT IS ENTITLED TO AN INSTRUCTION ON SELF DEFENSE IF THE ISSUE
IS RAISED BY [THE] EVIDENCE, WHETHER THE EVIDENCE IS STRONG OR WEAK, UNIM- PEACHED OR CONTRADICTED, AND REGARDLESS OF WHAT THE TRIAL COURT MAY THINK ABOUT
THE CREDIBILITY OF THE DEFENSE." FERREL v. STATE 55 S.W.3d 586, 591 (TEX.CRIM. APP. 2001)
A "DEFENDENT NEED NOT TESTIFY IN ORDER FOR A DEFENSIVE ISSUE TO BE SUFF
ICIENTLY RAISED" JOHNSON v. STATE 271 S.W.3d 359, 362 (TEX.APP.-BEAUMONT2008, PET REF'D). "DEFENSIVE ISSUES MAY BE RAISED BY THE TESTIMONY OF [ANY] WITNESS, EVEN ONE CALLED BY THE STATE." Id.
THEREFORE, AS HERE, WHAT KIND OF TESTIMONY IS NEEDED TO RAISE THE ISSUE
OF SELF-DEFENSE, SINCE V.T.C.A., PENAL CODE §9.31(a) FOCUSES ON THE DEFENDENT'S SUBJECTIVE STATE OF MIND? THUS, IN ORDER TO JUSTIFY THE SUBMISSION OF A CHARGE
TO THE JURY ON THE ISSUE OF SELF-DEFENSE, THERE MUST BE [SOME] EVIDENCE IN THE RECORD TO SHOW THAT THE DEFENDENT WAS IN SOME APPREHENSION OR [FEAR] OF BEING THE RECEIPIENT OF THE UNLAWFUL USE OF FORCE FROM THE COMPLAINANT. (ID.
SMITH ABOVE @ 585).
HERE IN THE INSTANT AGNES JONES ("AGNES") AND KERTHINE TIMES ("TIMS") WERE WATCHING TV AND DRINKING BEER WHEN APPELLANT, LONNIE JONES ("JONES"), TIMS' BOYFRIEND AND AGNES' SON, ARRIVED AT THE HOUSE. 4 RR 9. AGNES TESTIFIED
THAT TIMS STARTED "FUSSING AND CUSSING" AND THE ARGUMENT STARTED BECAUSE TIMS
THOUGHT JONES WAS CHEATING ON HER. 4 RR 10, 12. TIMS WAS ANGRY AND "PUSHED [JONES] IN THE FACE," WHICH IS WHEN THE FIGHTING BEGAN. 4 RR 10. AS TIMS PUSHED JONES AND GOT INTO HIS FACE, JONES ALLEGEDLY PUSHED HER AND SHE SLIPPED, FALLING TO THE FLOOR WHERE SHE MAY HAVE BUMPED HER HEAD AND CUT HER LIP. IN
HER STATEMENT AT THE SCENE, HOWEVER, AGNES SAID THAT HER SON STARTED THE FIGHT
WHEN SHE AND TIMS REFUSED TO GIVE JONES MONEY. 4 RR 13. STILL, AGNES TESTIFIED
THAT SHE KNEW TIMS THREW THE FIRST PUNCH BECAUSE SHE, AGNES, WAS THERE. 4
RR 25.
AS TIMS AND JONES WERE HITTING EACH OTHER, THE FIGHT MOVED FROM THE HALL
WAY TO THE DEN, NEAR THE COUCH. 4 RR 11, 15-17. AS JONES PICKED UP A HAMMER,
AGNES TOOK IT FROM HIM. 4 RR 16, 29. JONES NEVER HIT TIMS WITH THE HAMMER.