Ivy v. State, 2016 Tex. App. LEXIS 35 (TX Ct. App. January 5, 2016)
Court of Appeals of Texas, Seventh District, Amarillo
January 5, 2016, Decided
2016 Tex. App. LEXIS 35 | 2016 WL 67780
[NOTE: This decision was reversed by the Texas Court of Criminal Appeals in Ivy v. State, 2016 Tex. Crim. App. Unpub. LEXIS 401 (TX Ct. Crim. App. April 27, 2016).]
[NOTE: This matter was re-heard by this Court of Appeals in Ivy v. State, 2016 Tex. App. LEXIS 11244 (TX Ct. App. October 17, 2016).]
JOHN CHRISTOPHER IVY, APPELLANT v. THE STATE OF TEXAS, APPELLEE
Judges: Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Opinion by: Mackey K. Hancock
Appellant, John Christopher Ivy, was convicted of assault with bodily injury  with an affirmative finding of family violence. Appellant was sentenced to serve one year in jail and pay a fine of $3,000. Appellant appeals contending that the trial court committed reversible error by refusing to charge the jury on self-defense. We will reverse.
Factual and Procedural Background
In August of 2013, the complainant, Mikinna Hudson, was in a dating relationship with appellant. At the time of the incident in question, the parties had been dating for nine months. Appellant was 38-years-old and complainant was 19-years-old when the assault occurred. On August 21, complainant went to dinner with appellant. While at dinner, each had a drink. After dinner, the couple stopped at a liquor store and bought more to drink and then went to appellant’s home, where they had drinks before going to the bedroom. After having sex, the complainant was lying on the bed, naked, looking at her cell phone. The complainant testified that she was “messing” with her cell phone. According to the complainant, appellant thought she was “snapchatting,” or sending pictures to other males, on her cell phone. Appellant snatched the phone away from the complainant and an argument and physical altercation ensued. The two got in each other’s face and started arguing over the phone. Appellant turned and headed down a hall with the complainant pursuing him.
The complainant caught up with appellant and pushed him and slapped him one or two times in an effort to get the phone back. Appellant pushed the complainant to the ground and stepped on her stomach and rib area. At this point, the record becomes a bit unclear about what happened. Some of the complainant’s testimony indicates that she went back to the bedroom to try and get her clothes together to leave. The complainant testified that appellant kept grabbing her clothes from her in an attempt to make her stay. At other times, the complainant seems to say that the physical altercation continued until she tripped over a door that had become dislodged and fallen off its hinges. At some point in the melee, appellant again put the complainant on the ground and struck her in the face one or more times.
The complainant eventually extricated herself and ran to her car. Appellant followed her outside and tried to prevent her from leaving. The complainant was able to leave the scene and went to the home of a friend’s mother where the Hays County Sheriff’s Office was called.
A deputy from the Sheriff’s Office responded to the call and interviewed appellant. EMS was called and examined appellant. The complainant turned down being transported to the hospital that night. The next day, the complainant went to the hospital because of pain in her ribs, face, and ears. X-rays were taken but no fractures were found. The complainant was diagnosed as suffering from bruised ribs.
Before the sheriff’s deputy arrived at the home the complainant had gone to, appellant showed up and returned the cell phone to the complainant. After the deputy had finished her interview with the complainant, she contacted appellant and asked him to meet with her and give his side of the altercation. Appellant refused to meet with her. However, appellant did advise the deputy that the complainant hit him during the altercation.
Appellant did not testify during the trial. However, a friend of appellant’s, Blake Burns, did testify about seeing appellant within an hour or so of the incident in question. Burns testified that appellant appeared shaken up, angry, and upset. Burns further testified that he observed a knot on the back of appellant’s head and scratches on his arms and face that were consistent with scratches from fingernails.
After the State and appellant rested and closed the evidentiary portion of the trial, the trial court held a conference on the proposed jury charge. At this conference, appellant requested a charge on self-defense, pursuant to section 9.31(a) of the Texas Penal Code. See Tex. Penal Code Ann. § 9.31(a) (West 2011).  The trial court denied the request, citing section 9.31(a)(3),  because the trial court found there was testimony that appellant had blocked the complainant from making a 911 call, a Class A misdemeanor, and committed theft of her iPhone. For those reasons, the trial court did not think appellant “qualifies for self-defense.”
The trial court then charged the jury without the requested self-defense charge and the jury returned a verdict of guilty on the assault offense with an affirmative finding of family violence. Appellant, having elected to go to the trial court for punishment, was subsequently sentenced to one year in jail and a fine of $3,000. This appeal followed.
Appellant now contends that the failure of the trial court to give the self-defense charge was reversible error. We agree and will reverse the judgment.
Standard of Review
As a reviewing court, we review allegations of jury charge error in a two-step process. See Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012) (citing Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994)). First, we determine whether the jury charge given was erroneous. See id. (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)). Second, if we have found error, we must then determine whether appellant was harmed. See id. When reviewing the question of harm, the amount of harm necessary to require reversal depends on whether or not the appellant objected to the charge given by the trial court. See Abdnor, 871 S.W.2d at 732. In the case before the Court, the record reflects that appellant did object to the charge as given by the trial court. Because appellant did object to the charge as given, the amount of harm necessary to require reversal is “some harm.” See id. That is to say, an objected-to charge will require reversal as long as the error is not harmless. See id.
Appellant’s contention is that when the trial court denied his requested charge on the issue of self-defense, the trial court committed reversible error. Self-defense is contained in Chapter 9 of the Texas Penal Code and, as relevant in this matter, is found in section 9.31(a) and (b). Section 9.31(a) states:
Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force. The actor’s belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.
In relevant parts, section 9.31(b) provides:
(b) The use of force against another is not justified:
(4) if the actor provoked the other’s use or attempted use of unlawful force, unless: 
With this statutory authority in mind, we look to case law for additional guidance. It is axiomatic that an accused has a right to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the evidence. See Cocke v. State, 201 S.W.3d 744, 747 (Tex. Crim. App. 2006) (citing Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999)). This rule is designed to ensure that the jury, not the judge, decides the credibility of the evidence. Id. Further, an accused need not testify to raise the defense. See Smith v. State, 676 S.W.2d 584, 585-87 (Tex. Crim. App. 1985) (en banc). When we are deciding whether the defensive theory is raised by the evidence, the evidence is viewed in the light most favorable to the defense. See Granger, 3 S.W.3d at 38.
The testimony establishes that appellant took the cell phone that belonged to the complainant. The taking of the cell phone resulted in the argument that then morphed into the assault allegation for which appellant was tried. The complainant admitted shoving appellant in the back and slapping him on one or two occasions in an effort to retrieve her cell phone. The evidence revealed that, after appellant had shoved the complainant to the ground and placed his foot on the area of her stomach and ribs, the complainant managed to extricate herself. The evidence is less than clear about what occurred next. There seems to have been a continuation of the interaction between appellant and the complainant in the bedroom where the entire proceeding began. Whether this was an attempt by the complainant to flee or simply a continuation of the entire melee is not abundantly clear from the complainant’s testimony. At some point in time after the initial confrontation, the complainant ended up on the ground and, according to the complainant, was struck one or two times in the face by appellant.
The record further reveals that the information filed against appellant alleges that appellant committed the assault in question, “by striking [complainant] in the head or body with the [appellant’s] hand or foot.” This becomes important because the verdict is a general verdict and, from the record, we cannot discern whether the State’s theory is that one continuous assault occurred or two separate incidents that were part of one assault occurred. This in turns leads to the question whether appellant’s actions after he was pushed or struck in the back and slapped one or two times were defensive in nature.
The State’s position is that appellant was simply not entitled to a self-defense charge. The State posits a number of reasons for their theory.
First, the State contends that appellant failed to meet any of the requirements of section 9.31(a)(1) necessary to invoke the presumption of reasonableness. We agree with that statement; however, when an actor does not meet the requirements of section 9.31(a)(1), he may still be entitled to a defensive issue, albeit without the presumption of reasonableness. See § 9.31(a)(1)(A)-(C).
Next, the State argues that because appellant committed other crimes, he was not entitled to the self-defense charge. Specifically, the State points to evidence that they conclude proves that appellant committed offenses above the grade of a Class C misdemeanor by: (1) theft of the cell phone, (2) furnishing alcohol to a minor, and (3) interfering with an emergency telephone call. To support this proposition, the State refers the Court to Barrios v. State, 389 S.W.3d 382, 393 (Tex. App.—Texarkana 2012, pet. ref’d). However, Barrios clearly points out that allegations of criminal activity do not disqualify the accused from defending his use of force; rather, it simply removes the presumption that his use of force was reasonable. See id. The facts of Barrios are totally different than we have before us. In Barrios, the criminal activity was the prohibition of an illegal immigrant from possession of a weapon, a firearm, or ammunition that was in interstate commerce or that affected interstate commerce. See id. at 392. The appellant in Barrios stipulated that he was in the country illegally. See id. at 391 n.11. Additionally, there was evidence about the weapon the appellant used, where it was manufactured and assembled, and where the ammunition used was manufactured. See id. at 391-92. In short, the stipulation and the evidence before that court lead to the conclusion that, as a matter of law, the criminal activity the appellant was engaged in disqualified him from the presumption of reasonableness. However, the determination that Barrios was engaged in criminal activity at the time the force was used did not remove the trial court’s duty to instruct the jury on self-defense. See id. at 393.
In the present case, whether appellant was engaged in criminal activity was open for the judgment of the jury. It was for the jury to determine whether appellant had the intent to deprive the complainant of her cell phone. The record reveals that he returned the cell phone to the complainant almost as soon as she got to the home of her friend’s mother. As to the question of furnishing alcohol to a minor, the record reflects that was a completed crime before the incident in question occurred. Finally, regarding the interference with an emergency call, the record is unclear about when the complainant decided she needed to make a 911 call. These are all questions upon which the jury should pass. See id. at 393.
Lastly, the State posits that, since appellant provoked the complainant to use force by taking her cell phone, appellant’s use of force is not justified and he was not entitled to the self-defense charge. See § 9.31(b)(4). The State cites the Court to Williams v. State, 35 S.W.3d 783, 786 (Tex. App.—Beaumont 2001, pet. ref’d), to support that proposition. However, upon closer review of the Williams case, we find that it is limited by the specific facts of the case. The court in Williams acknowledged that, normally, provocation is a fact issue and is included in the court’s charge on self-defense as a limitation on that defense. See id. The court determined that section 9.31(b)(5)  disqualified the accused from his self-defense issue. See id. at 787. The record in Williams was undisputed that the appellant had a handgun on his person at the time he sought an explanation or discussion with the deceased. See id. Therefore, as a matter of law, he was not entitled to the self-defense instruction. See id.
We are not faced with that type of issue nor that specific statutory limitation on the right of self-defense. Rather, we have a record that demonstrates that appellant took complainant’s cell phone. We have no direct evidence that appellant took the cell phone to provoke complainant to use force against him. See Smith v. State, 965 S.W.2d 509, 512 (Tex. Crim. App. 1998). It was up to the jury to determine appellant’s intent. See id. at 514-15. However, the jury was not charged on self-defense so they did not pass on the provocation issue.
In summation, we have a number of limitations on the right of self-defense reflected in the record before us. However, each of those limitations is a question for the jury in the application of the self-defense doctrine. Therefore, under this record, the trial court took that away from the jury when it denied the self-defense instruction. See Cocke, 201 S.W.3d at 747. As a result, the trial court committed charge error. See Kirsch, 357 S.W.3d at 649. Additionally, the record reflects that appellant objected to the omission of the self-defense instruction. Therefore, we must next determine whether appellant suffered some harm. See Abdnor, 871 S.W.2d at 732.
We must reverse the case unless the record as a whole demonstrates that appellant suffered no harm, that is to say, that the error in refusing to give the self-defense instruction was harmless. See id. Our review of the record shows that appellant’s trial strategy was built almost exclusively around the expectation of receiving an instruction on self-defense. Almost from the beginning of the cross-examination of the complainant, appellant attempted to show that the complainant had used force against him. After avoiding disclosure that she had slapped appellant on direct examination, the complainant was forced to admit that she had, in fact, slapped him once or twice after having shoved him in the back. Further, the deputy sheriff who investigated the offense admitted, on cross-examination, that the complainant told her that she struck the appellant. Additionally, the deputy testified that she talked to appellant on the phone and appellant advised that he had received a busted lip during the encounter with the complainant. Finally, appellant’s friend, Burns, advised he saw appellant within an hour or so after the altercation and that appellant was “agitated and upset, angry, kind of shaken up,” and that appellant had a “good size” knot on the back of his head and scratches on his face and arms.
Yet, because of the lack of an instruction on self-defense, appellant was reduced to arguing which of the culpable mental states the jury should use in determining whether appellant was guilty of the offense. The appellant argued that he simply reacted to the complainant striking him first and therefore, at worse, was guilty of reckless conduct. The State’s closing argument centered on portraying appellant as controlling and using intimidation against the complainant. As a result of appellant’s actions, the complainant was portrayed as being fearful of appellant. From our review of the record and arguments of counsel, it is apparent to this Court that appellant’s entire trial strategy was effectively neutered when the trial court refused to give the self-defense instruction. Therefore, we cannot say that the error in refusing to give the self-defense instruction was harmless. See id. Accordingly, we sustain appellant’s issue on appeal.
Having sustained appellant’s single issue on appeal, we reverse the judgment of the trial court and remand this case for a new trial.
Mackey K. Hancock, Justice
1. See Tex. Penal Code Ann. § 22.01(a)(1) (West Supp. 2015).
2. Further reference to the Texas Penal Code will be by reference to “section ” or “§ .”
3. Section 9.31(a)(3) provides that a charge on self-defense is presumed reasonable unless the actor was engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.
4. The exemptions to subsection (b)(4) are not applicable to the facts of of this case.
5. Section 9.31(b)(5) provides force against another is not justified if the actor sought an explanation from or discussion with the other person concerning the actor’s differences with the other person while the actor was carrying a weapon in violation of Section 46.02 (unlawfully carrying a weapon).