"SOME HARM" BECAUSE OF THE DENIAL. OVALLE v. STATE, 13 S.W.3d 774, 786 (TEX.CRIM.APP.2000) (QUOTING ALMANZA v. STATE, 686 S.W.2d 157, 171 (TEX.CRIM.APP.1985)). IF THE CHARGE CONTAINS ERROR, AND THAT ERROR HAS BEEN PROPERLY PRESERVED BY AN OBJECTION
OR REQUESTED INSTRUCTION,, REVERSAL. IS REQUIRED IF THE ERROR IS "CALCULATED. TO INJURE THE RIGHTS OF DEFENDANT," MEANING THERE MUST BE SOME HARM. TEX.
CRIM. PROC. CODE ANN. ART. 36.19; TREVINO v. STATE, 100 S.W.3d 232, 242 (TEX. CRIM.APP.2003) (per curium); ALMANZA, 686 S.W.2d @ 171. "UNLEBS ALL HARM WAS ABATED,. APPELLANT SUFFERED 'SOME1 HARM." MILLER, 815 S.W.2d @ 586 n.5.
IN AN ALMANZA HARM ANALYSIS, "BURDENS OF PROOF OR PERSUASION HAVE NO
PLACE.[.]" WARNER v. STATE, 245 S.W.3d 458, 464 (TEX.CRIM.APP.2008). HARM MUST BE EVALUATED IN LIGHT OF THE COMPLETE JURY CHARGE, THE ARGUMENTS OF COUNSEL,
THE ENTIRETY OF THE EVIDENCE, INCLUDING THE CONTESTED ISSUES AND' WEIGHT OF THE
PROBATIVE EVIDENCE, AND ANY OTHER RELEVANT FACTORS REVEALED BY THE RECORD AS A
WHOLE. ALMANZA, 686 S.W.2d @ 171. SEE ALSO ELLISON v. STATE, 86 S.W.3d 226,
228 (TEX.CRIM.APP.2002) (APPLYING ALMANZA HARM.ANALYSIS TO JURY-CHARGE ERROR AT THE PUNISHMENT PHASE OF TRIAL).
THE JURY CHARGE GAVE THE. JURY THE SOLE OPTION OF FINDING APPELLANT GUILTY
OF "ASSAULT CAUSES BODILY INJURY FAMILY ENHANCED." CR 71, 73-74. THE CHARGE
INSTRUCTED THE JURY TO FIND APPELLANT GUILTY OF ASSAULT IF THE JURORS BELIEVED
BEYOND. A REASONABLE DOUBT THAT.APPELLANT INTENTIONALLY, KNOWINGLY, OR RECK
LESSLY CAUSE BODILY . INJURY TO COMPLAINANT, A PERSON WITH WHOM THE DEFENDANT
HAS OR HAS HAD A DATING RELATIONSHIP. CR 73-74. THE CHARGE DID NOT ALLOW
THE JURY TO CONSIDER ANY LESSER OFFENSE OR DEFENSIVE ISSUE.
THE RECORD INDICATES THAT APPELLANT'S TRIAL COUNSEL, WITHOUT OBJECTION BY
THE STATE, QUESTIONED THE VENIRE DURING VOIR DIRE ON THE ISSUE OF SELF-
DEFENSE. 2 RR 71-75.
WHO WAS THE FIRST AGGRESSOR WAS A CONTESTED ISSUE AT TRIAL. EVEN IF
CONTROVERTED, THERE WAS EVIDENCE THAT "TIMS" THREW THE FIRST PUNCH AFTER
SHE HAD CONFRONTED APPELLANT. AND ACCUSED. HIM OF CHEATING ON HER. ALTHOUGH
THE PROSECUTOR ARGUED THAT THE EVIDENCE [CONTRA]DICTED APPELLANT'S SELF- DEFENSE CLAIM, THIS EVIDENCE LINKING.TO, APPELLANT PICKING UP A HAMMER FOR
PROTECTION IN DEFENDING HIS-SELF, AT BEST, MAKES THE ISSUE A QUESTION FOR
THE JURY TO DECIDE. (FERREL, 55 S.W.3d @ 591).
ALBEIT, AS NOTED - OPINE IN SHAW v. STATE, 243 S.W.3d 647,.657-58 (TEX. CRIM.APP.2007), "[U]NDER §2.03(c) A DEFENSE IS SUPPORTED (OR RAISED) BY THE EVIDENCE [IF], THERE! IS SOME. EVIDENCE, FROM ANY SOURCE, ON EACH ELEMENT OF THE DEFENSE THAT, IF BELIEVED BY THE JURY, WOULD SUPPORT A RATIONAL - INFER
ENCE THAT ELEMENT IS TRUE.
THEREFORE, IN LIGHT OF THE TRIAL COURT DENYING APPELLANT'S REQUEST FOR AN INSTRUCTION ON SELF-DEFENSE; COUNSEL, AFTER MAKING A "PRIMA FACIE CASE" per QUANTUM OF EVIDENCE NECESSARY ... ; WAS NOT ABLE TO PRESENT THE EVIDENCE -or- [ANY] DEFENSIVE THEORY TO THE JURY FOR JURY CONSIDERATION AND, THUS APPELLANT IN THE LEAST SUFFERED "SOME HARM" IF NOT "EGREGORIOUS HARM!' FROM
THE COURTS DENIAL OF AN INSTRUCTION ON