ORAL ARGUMENT REQUESTED

Transcription

1 NO CR ACCEPTED 225EFJ FIFTH COURT OF APPEALS DALLAS, TEXAS 12 April 22 P5:28 Lisa Matz CLERK CHARLES SCOTT PRUIETT IN THE VS. 5th COURT STATE OF TEXAS OF APPEALS APPELLANT S BRIEF On Appeal From Cause Number CR County Court at Law Rockwall County, Texas The Honorable Brian Williams Presiding Submitted by: M. Michael Mowla, PLLC 603 N. Cedar Ridge Suite 100 Duncanville, TX Phone: Fax: michael@mowlalaw.com Texas Bar # Scott H. Palmer, P.C Dallas Parkway Suite 540 Addison, TX Phone: (214) Fax: (214) scott@scottpalmerlaw.com Texas Bar # Attorneys for Appellant ORAL ARGUMENT REQUESTED Page i

2 TABLE OF CONTENTS I. IDENTITY OF PARTIES AND COUNSEL v II. TABLE OF AUTHORITIES III. STATEMENT OF THE CASE IV. STATEMENT REGARDING ORAL ARGUMENT vi xii xiii V. FACTS 1 VI. SUMMARY OF THE ARGUMENTS 5 VII. ISSUES PRESENTED AND ARGUMENT ISSUE ONE: THE EVIDENCE AT TRIAL IS LEGALLY INSUFFICIENT TO PROVE THAT APPELLANT COMMITTED ASSAULT - FAMILY VIOLENCE OR BODILY INJURY BECAUSE BASED UPON A HYPOTHETICALLY-CORRECT JURY CHARGE THAT CONTAINED AN INSTRUCTION OF SELF-DEFENSE, NO RATIONAL TRIER OF FACT COULD HAVE FOUND THE ESSENTIAL ELEMENTS OF ASSAULT - FAMILY VIOLENCE OR BODILY INJURY BEYOND A REASONABLE DOUBT Facts applicable to Issue One 7 2. Standards of Review for Claims of Legal Insufficiency 7 3. Law and argument 12 A. Defenses in general 12 B. When an instruction in the jury charge on a defense is required 12 C. The State's Burden of Proof on Defenses 13 D. Standard for this Court of Appeals 13 E. Effect of reversal 14 F. Appellant argued for jury instruction on self-defense 15 G. Self-defense in general 16 Page ii

3 H. Appellant had a reasonable belief that force was necessary 18 I. Appellant admitted the actual offense, thus an instruction for self-defense was required 23 J. A hypothetically-correct jury charge would have included an instruction for self-defense, and no reasonable trier of fact charged with such hypothetically-correct jury charge would have found the essential elements of assault-family violence or bodily injury beyond a reasonable doubt Conclusion 26 ISSUE TWO: THE EVIDENCE AT TRIAL IS LEGALLY INSUFFICIENT TO PROVE THAT APPELLANT COMMITTED ASSAULT - FAMILY VIOLENCE OR BODILY INJURY BECAUSE BASED UPON THE JURY CHARGE THAT WAS SUBMITTED THAT CONTAINED AN INSTRUCTION OF NECESSITY, NO RATIONAL TRIER OF FACT COULD HAVE FOUND THE ESSENTIAL ELEMENTS OF ASSAULT - FAMILY VIOLENCE OR BODILY INJURY BEYOND A REASONABLE DOUBT Facts applicable to Issue Two Law and Argument 27 A. Law of Necessity 27 B. Appellant reasonably believed that his conduct was immediately necessary to avoid imminent harm 28 C. According to ordinary standards of reasonableness, Appellant's conduct clearly outweighed the harm sought to be prevented by the prohibition against assault 29 D. A legislative purpose to exclude the justification claimed for the conduct does not plainly appear 29 E. The evidence at trial is legally insufficient to prove that Appellant committed assault-family violence or bodily injury because based upon the jury charge that was submitted that contained an instruction of necessity, no rational trier of fact could have found the essential elements of assault-family violence or bodily injury beyond a reasonable doubt Conclusion 32 Page iii

4 ISSUE THREE: THE TRIAL COURT ERRED BECAUSE IT DID NOT ALLOW APPELLANT A JURY INSTRUCTION OF SELF-DEFENSE Facts relevant to Issue One Law and argument 33 A. Why Self-Defense jury instruction should have been included in the jury charge 33 B. Argument under Almanza v. State Standard Conclusion 42 VIII. CONCLUSION AND PRAYER 42 IX. CERTIFICATE OF SERVICE 43 Page iv

5 I. IDENTITY OF PARTIES AND COUNSEL 1. CHARLES SCOTT PRUIETT, Appellant. 2. M. Michael Mowla, Attorney for Appellant on Appeal, 603 N. Cedar Ridge Suite 100, Duncanville, Texas 75116, phone (972) , fax (972) , 3. Scott Palmer, Attorney for Appellant on Appeal, Scott H. Palmer, P.C., Dallas Parkway Suite 540, Addison, Texas 75001, phone (214) , fax (214) Jack Robinson, Attorney for Appellant at Trial, 1 Horizon Court, Heath, Texas 75032, phone (972) , fax (972) State of Texas, Appellee. 6. Kenda Culpepper, Rockwall County District Attorney, Attorney for Appellee, 1111 E. YellowJacket Lane Suite 201, Rockwall, Texas 75087, phone (972) , fax (972) Craig Stoddart, Rockwall County Assistant District Attorney, Appellate Division, Attorney for Appellee on Appeal, 1111 E. YellowJacket Lane Suite 201, Rockwall, Texas 75087, phone (972) , fax (972) Thomas M. Horan, II, Rockwall County Assistant District Attorney, Attorney for Appellee at Trial, 1111 E. YellowJacket Lane Suite 201, Rockwall, Texas 75087, phone (972) , fax (972) Lauren Ellis, Rockwall County Assistant District Attorney, Attorney for Appellee at Trial, 1111 E. YellowJacket Lane Suite 201, Rockwall, Texas 75087, phone (972) , fax (972) Hon. Brian Williams, Presiding Judge at Trial, Rockwall County Court at Law, 1111 East Yellow Jacket Lane Suite 403, Rockwall, Texas 75087, phone (972) , fax (972) Page v

6 II. TABLE OF AUTHORITIES Cases Abdnor v. State, 871 S.W.2d 726 (Tex. Crim. App. 1994) 40 Adelman v. State, 828 S.W.2d 418 (Tex. Crim. App. 1992) 8 Allen v. State, 651 S.W.2d 267 (Tex. Crim. App. 1983) 8 Allen v. State, 971 S.W.2d 715 (Tex. App. Houston [14th. Dist.] 1998) 30 Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) 40 Alvarado v. State, 821 S.W.2d 369 (Tex. App. Corpus Christi 1991) 31 Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) 40 Arnold v. State, 719 S.W.2d 590 (Tex. Crim. App. 1986) 14 Bain v. State, 677 S.W.2d 51 (Tex. Crim. App. 1984) 9 Bennett v. State, 726 S.W.2d 32 (Tex. Crim. App. 1986) 18 Bigley v. State, 865 S.W.2d 26 (Tex. Crim. App. 1993) 11 Bluitt v. State, 137 S.W.3d 51, 54 (Tex. Crim. App. 2004) 40 Bobo v. State, 757 S.W.2d 58 (Tex. App. Houston [14th Dist.] 1988, pet. ref.) 27 Bonfanti v. State, 686 S.W.2d 149 (Tex. Crim. App. 1985) 42 Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) 7 Broussard v. State, 809 S.W.2d 556 (Tex. App. Dallas 1991) 16,18,21,28 31,35,38,39 Brown v. State, 804 S.W.2d 566 (Tex. App. Houston [14th] 1991, pet. ref.) 14 Burks v. United States, 437 U.S. 1 (1978) 14, 32 Burleson v. State, 791 S.W.2d 334 (Tex. App. Austin 1990), pet. improvidently granted, 819 S.W.2d 537 (Tex. Crim. App. 1991) 27 Bush v. State, 611 S.W.2d 428 (Tex. Crim. App. 1980) 32 Page vi

7 Bush v. State, 624 S.W.2d 377 (Tex. App. Dallas 1981) 27 Carlsen v. State, 654 S.W.2d 444 (Tex. Crim. App. 1983) 8 Carter v. Estelle, 691 F.2d 777 (5th Cir. [Tex.] 1982) 10 Castillo-Fuentes v. State, 707 S.W.2d 559 (Tex. Crim. App. 1986) 41 Chafin v. State, 95 S.W.3d 549 (Tex. App. Austin 2002, no pet.) 11 Clinton v. State, 354 S.W.3d 795 (Tex. Crim. App. 2011) 11, 23 Collier v. State, 999 S.W.2d 779 (Tex. Crim. App. 1999) 11 Cooks v. State, 169 S.W.3d 288 (Tex. App. Texarkana 2005) 9 Dyson v. State, 672 S.W.2d 460 (Tex. Crim. App. 1984) 16,18,21,28 35, 38, 39 Ex parte Drinkert, 821 S.W.2d 953 (Tex. Crim. App. 1991) 16,19,21,25, 28, 35, 36 Foster v. H.E. Butt Grocery Co., 548 S.W.2d 769 (Tex. App. San Antonio 1977, ref. n.r.e.) 28 Foster v. State, 635 S.W.2d 710 (Tex. Crim. App. 1982) 8 Garza v. State, 715 S.W.2d 642 (Tex. Crim. App. 1986) 8 Gold v. State, 736 S.W.2d 685 (Tex. Crim. App. 1987) 9 Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) 9, 10 Grayson v. State, 82 S.W.3d 357 (Tex. App. Austin 2001, no pet.) 39 Greene v. Massey, 437 U.S. 19 (1978) 14, 32 Greenwood v. State, 823 S.W.2d 660 (Tex. Crim. App. 1992) 7, 27 Guevara v. State, 191 S.W.3d 203 (Tex. App. San Antonio 2005) (en banc) 41 Hamel v. State, 916 S.W.2d 491 (Tex. Crim. App. 1996) 19 Harris v. State, 486 S.W.2d 573 (Tex. Crim. App. 1972) 30 Page vii

8 Holloman v. State, 948 S.W.2d 349 (Tex. App. Amarillo 1997, no pet.) 17 Houston v. State, 663 S.W.2d 455 (Tex. Crim. App. 1984) 8 Howeth v. State, 645 S.W.2d 787 (Tex. Crim. App. 1983) 39 Jackson v. Virginia, 443 U.S. 307 (1979) 7, 8, 14 Jones v. State, 544 S.W.2d 139 (Tex. Crim. App. 1976) 16,18,21,25, 35, 38, 39 Jones v. State, 680 S.W.2d 499 (Tex. App. Austin 1983, no pet.) 9 Johnson v. State, S.W.3d, 2012 Tex. Crim. App. LEXIS 479, PD (Tex. Crim. App. 2012) 9 Johnson v. State, 650 S.W.2d 414 (Tex. Crim. App. 1983) 28 Lang v. State, 698 S.W.2d 223 (Tex. App. Dallas 1985, no pet.) 42 Lawrence v. State, 700 S.W.2d 208 (Tex. Crim. App. 1985) 42 Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) 7 Leach v. State, 726 S.W.2d 598 (Tex. App. Houston [14th Dist.] 1987, no pet.) 30 Lopez v. State, 574 S.W.2d 563 (Tex. Crim. App. 1978) 12, 33 Luck v. State, 588 S.W.2d 371 (Tex. Crim. App. 1979) 12,13,33,34 Maldonado v. State, 902 S.W.2d 708 (Tex. App. El Paso 1995) 30 Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) 10, 11, 23 Mann v. State, 964 S.W.2d 639 (Tex. Crim. App. 1998) 39 Martinez v. State, 653 S.W.2d 630 (Tex. App. San Antonio 1983, pet. ref.) 23 McFarland v. State, 930 S.W.2d 99 (Tex. Crim. App. 1996) 8 Meraz v. State, 785 S.W.2d 146 (Tex. Crim. App. 1990) 14 Montgomery v. State, 588 S.W.2d 950 (Tex. Crim. App. 1979) 12, 13, 33 Narvaiz v. State, 840 S.W.2d 415 (Tex. Crim. App. 1992) 8 Page viii

9 Oakland Cannabis Buyers' Cooperative and Jones v. United States, 532 U.S. 483 (2001) 29 O'Neal v. State, 811 S.W.2d 219 (Tex. App. Dallas 1991) 7, 27 Ortiz v. State, 577 S.W.2d 246 (Tex. Crim. App. 1979) 8 Pentycuff v. State, 680 S.W.2d 527, (Tex. App. Waco 1984) 28 Preston v. State, 756 S.W.2d 22 (Tex. App. Houston [14th Dist.] 1988, pet. ref.) 22 Ramos v. State, 478 S.W.2d 102 (Tex. Crim. App. 1972) 13, 33 Rankin v. State, 46 S.W.3d 899 (Tex. Crim. App. 2001) 39 Richardson v. State, 973 S.W.2d 384 (Tex. App. Dallas 1998, no pet.) 12 Rowden v. State, 696 S.W.2d 490 (Tex. App. El Paso 1985) 41 Sanchez v. State, 722 S.W.2d 781 (Tex. App. Dallas 1986, pet. ref'd.) 41 Saxton v. State, 804 S.W.2d 910 (Tex. Crim. App. 1991) 13, 31, 34 Schermbeck v. State, 690 S.W.2d 315 (Tex. App. Dallas 1985) 28 Schexnider v. State, 943 S.W.2d 194 (Tex. App. Beaumont 1997, no pet.) 11 Schuessler v. State, 719 S.W.2d 320 (Tex. Crim. App. 1986) 14 Semaire v. State, 612 S.W.2d 528 (Tex. Crim. App. 1980) 16,18,21,28, 35, 38, 39 Sheppard v. State, 545 S.W.2d 816 (Tex. Crim. App. 1977) 17, 22, 36 Sidney v. State, 753 S.W.2d 410 (Tex. App. Houston [14th Dist. pet. ref.) 17, 21 Smith v. State, 961 S.W.2d 501 (Tex. App. San Antonio 1997, reh'g denied) 12 Sterner v. Marathon Oil Co., 767 S.W.2d 686 (Tex. 1989) 9 Thomas v. State, 662 S.W.2d 677 (Tex. App. Dallas 1983) 13, 31,33 Torres v. State, 751 S.W.2d 705 (Tex. App. Corpus Christi 1988, pet. ref.) 17, 23, 36 Page ix

10 Torres v. State, 785 S.W.2d 824 (Tex. Crim. App. 1989) 9 Torres v. State, 7 S.W.3d 712 (Tex. App. Houston [14th Dist.] 1999) 18 Valentine v. State, 587 S.W.2d 399 (Tex. Crim. App. 1979) 16,18,21,25 35, 38, 39 VanBrackle v. State, 179 S.W.3d 708 (Tex. App. Austin 2005) 18 Vega v. State, 267 S.W.3d 912 (Tex. Crim. App. 2008) 11, 23 Wallace v. State, 955 S.W.2d 148 (Tex. App. Beaumont 1997, no pet.) 12 Warren v. State, 764 S.W.2d 906 (Tex. App. Corpus Christi 1989, pet. ref.) 17, 22, 36 Werner v. State, 711 S.W.2d 639 (Tex. Crim. App. 1986) 16,19,21,25 28,35,36,38 White v. State, 591 S.W.2d 851 (Tex. Crim. App. 1979) 14 Williams v. State, 630 S.W.2d 640 (Tex. Crim. App. 1982) (opinion on rehearing) 29 Willis v. State, 790 S.W.2d 307 (Tex. Crim. App. 1990) 12,17,23,33 Withers v. State, 994 S.W.2d. 742 (Tex. App. Corpus Christi 1999) 17, 23 Woodfox v. State, 742 S.W.2d 408 (Tex. Crim. App. 1987) 12, 13, 33 Young v. State, 530 S.W.2d 120 (Tex. Crim. App. 1975) 17, 21, 36 Constitutions U.S. Const. Art. V 39 U.S. Const. Art. VI 39 U.S. Const. Art. XIV 39 Statutes and Rules Tex. Code Crim. Proc. Art Tex. Code Crim. Proc. Art Page x

11 Tex. Code Crim. Proc. Art Tex. Code Crim. Proc. Art Tex. Pen. Code ,19,21,25 28,35,38,41 Tex. Pen. Code Tex. Pen. Code Tex. Pen. Code ,13,31,32 33, 34 Tex. Pen. Code Tex. Pen. Code Tex. Pen. Code Tex. Pen. Code Tex. Pen. Code ,27,28 29, 30 Tex. Pen. Code ,16,17,18 20,21,22,25 35,36,38,41 Tex. Pen. Code xii, 25, 31 Tex. Pen. Code , 21, 36 Tex. Rule App. Proc Tex. Rule App. Proc Tex. Rule App. Proc xiii xiii xiii Tex. Rule App. Proc. 44.2(a) 39 Page xi

12 TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: CHARLES SCOTT PRUIETT, Appellant, in appealing his sentence for the conviction for Assault Family Violence or Bodily Injury under cause number CR before the Rockwall County Court at Law, Rockwall County, Texas, respectfully submits this Brief in support of his appeal: III. STATEMENT OF THE CASE Appellant was charged by information indictment under Cause Number CR for Assault Family Violence pursuant to Texas Penal Code Specifically, the information alleges that on or about November 25, 2009, Appellant intentionally, knowingly, or recklessly caused bodily injury to Misty Pruiett ("CW"), a member of Appellant's family, by grabbing the CW's forearm and hand and twisting it backwards. (RR3, 5-6; CR, 4). 1 To this charge, Appellant pleaded "not guilty." (RR3, 6). Beginning on October 4, 2011, a trial was had in this case before a jury. (RR4). After consideration of the evidence presented, on October 5, 2011, a jury found Appellant guilty of Assault Family Violence or Bodily Injury as charged in the information. (RR4, 29; CR, 83-85). Appellant was sentenced to 90 days in county jail, probated for eighteen months, and fined $1, (RR4, 31; CR, 84-85). On November 2, 2011, Appellant filed a Notice of Appeal. (CR, 87-88). This Notice of Appeal was filed within 90 days of October 5, 2011, the date that the judgment and sentence was imposed in open court, so the appeal is properly perfected and before this Court of Appeals. (CR, 87-88); See Tex. Rule App. Proc. 26.2(a)(2). On November 7, 2011, the trial court signed 1 The Clerk s Record, which is comprised of a single volume, is referenced throughout this Brief as CR, followed by the page number of the Clerk s Record. The Reporter s Record, which is comprised of six volumes, is referenced with an RR followed by the volume number (i.e., Volume 4 is referenced as "RR4"), and by the page number or Exhibit number within the Volume referenced). Page xii

13 the Trial Court's Certification of Defendant's Right of Appeal, certifying that Appellant's case is not a plea-bargain case and that Defendant has the right of appeal. (CR, ); See Tex. Rule App. Proc. 25.2(d). On November 2, 2011, Appellant filed a motion for new trial. (CR, 94-99). On December 19, 2011, after a hearing on the motion for new trial, the trial court overruled Appellant's motion for new trial. (RR5; CR, 105). IV. STATEMENT REGARDING ORAL ARGUMENT Pursuant to Texas Rules of Appellate Procedure 38.1, 39.1, and 39.2, Appellant requests oral argument before this Court of Appeals. See Tex. Rule App. Proc. 38.1, 39.1, & This is a meritorious appeal of a criminal case, and although Appellant represents that the facts and legal arguments are thoroughly presented in this brief and in the record, Appellant also believes that the decisional process of the Court of Appeals will be significantly aided by oral argument. This appeal deals with a complex issue regarding whether the trial court erred by not allowing an instruction of self-defense into the jury charge. In addition, an issue of the legal sufficiency of the evidence is presented that discusses the evidence not being legally sufficient both because of the trial court's error of not allowing instruction of self-defense into the jury charge and because of what the verdict would have been with a hypothetically-correct jury charge. Appellant believes that oral argument will better help this Court of Appeals understand the legal arguments Appellant makes in this regard. As a result, Appellant requests oral argument. Page xiii

14 V. FACTS Background facts At the time that Appellant allegedly assaulted the CW, Appellant and the CW were married. (RR3, 115, 183). Appellant and the CW have two children, Morgan Pruiett, and who was five years of age on November 25, 2009, and Emma Pruiett, who was three years of age on November 25, (RR3, 15, 84, 115, 116). At the time, Appellant worked for Consolidated Resource Imaging, a federal defense contractor. (RR3, ). His job with Consolidated Resource Imaging required him to work for up to four months at a time in Iraq, Afghanistan, and Germany. (RR3, 184). Events of November 25, 2009 On November 25, 2009, Appellant and the CW were arguing in their marital home. (RR3, 54-55). Appellant and the CW had been arguing about money, and the fact that the CW spent too much money. (RR3, 15-16, 119, 120, 121, 185). Prior to November 25, 2009, there were several instances where the CW spent large amount of money, such as up to $1, for Morgan's birthday party. (RR3, ). Specifically on November 25, 2009, after agreeing that the CW would pay for groceries using cash, the CW instead charged the groceries of $ on the debit card. (RR3, 188). At the time, Emma was at the marital home, and Morgan was at a home of a friend. (RR3, 122). While Appellant was trying to leave the marital home while holding Emma, the CW attempted to grab Emma out of the arms of Appellant. (RR3, 17, 65, 127). Appellant intended to take Emma to Bass Pro for a while. (RR3, 190, ). Appellant blocked off the CW with his elbow when the CW stood in the doorway, but the CW would not move, and attempted to grab Emma out of his arms. (RR3, 17, 57, 60, 63, 65, 162). When the CW would not move out Page 1

15 of Appellant's way despite Appellant repeatedly asking her to move out of the way, Appellant pushed the CW aside. (RR3, , 203). Appellant exited the home with Emma, took some rifles and personal clothing, and intended to go pick up Morgan. (RR3, 18, 57). Appellant attempted to access the Dodge Durango, but the CW blocked Appellant from entering the Durango. (RR3, 83, 165, 194). Appellant then went to his vehicle, a black Volkswagen Jetta. (RR3, 83, 84, ). After Appellant entered his vehicle, without Appellant's consent, the CW entered it as well in the back seat. (RR3, 59, , 166, 197). Appellant asked the CW several times to leave the vehicle. (RR3, 197). Emma was in the front of the vehicle with Appellant. (RR3, 59, 138, 197). The CW had no intention of getting out of the Jetta under any scenario unless she had Emma with her. (RR3, 167, ). Appellant began to drive the Jetta, and the CW claimed she reached into the front seat to try to grab Emma in order to pull her into the back seat for "safety." (RR3, 85-86). Appellant saw the CW reach forward, and had no idea what the CW intended to do by reaching forward. (RR3, 199). Appellant feared that the CW was going to cause a wreck or attack Appellant. (RR3, ). The CW admitted that she was "reaching with (her) arm to find something to grab a hold of to get the car stopped." (RR3, 142). The CW also testified, "I don't know what or how I was going to do it, but in my mind I had to get the car stopped." (RR3, 142). Thus, the CW's intention by her own testimony was to stop the Jetta no matter what. (RR3, 169, 170). When the CW reached forward again, Appellant grabbed the CW's left wrist with his right hand and twists the CW's left wrist. (RR3, 87, 91, 142, 200). Appellant grabbed the CW's wrist to "control the situation" and to protect himself. (RR3, 200). Appellant was worried that the CW was going to do something that could potentially hurt Appellant, the CW, and Emma. (RR3, Page 2

16 201). Appellant would not have grabbed the CW's wrist had the CW not entered the vehicle and reached forward as she had. (RR3, 201). The CW claimed that the Jetta was traveling 40 miles per hour. (RR3, 144). However, Appellant testified that the Jetta, which had a standard transmission, was never placed in a gear higher than first gear, so the vehicle did no drive faster than 15 miles per hour. (RR3, , 209). The CW admitted that had she allowed Appellant to leave the residence with Emma, the incident of Appellant grabbing the CW's wrist would not have happened. (RR3, 159). The CW's response to whether Appellant threatened Emma in any way was "I did not feel that it was safe for Emma to leave when he was upset." (RR3, 161). Officer Woodruff, the investigating officer, did not notice any bruising or redness on the CW's wrist, although he admitted that redness would be visible if a person's writs were grabbed and twisted. (RR3, 98-99). Had he seen any visible signs of injury, he would have photographed those injuries according to his police protocol. (RR3, 99). Brandie Craighead, the CW's sister, admitted on cross-examination that almost all of her knowledge of the events in this case came from what the CW told her. (RR3, 29-31). Brandie Craighead admitted that she did not know who started the altercation. (RR3, 31). Brandie Craighead also admitted that she knew no reason for the CW to try to prevent Appellant from taking Emma out of the home. (RR3, 32). Further, Brandie Craighead admitted that she had no information that would lead her to believe that Appellant was endangering Emma when Appellant attempted to leave the home with Emma. (RR3, 32). Brandie Craighead did see the CW try to pull Emma away from Appellant, and thus the CW "went to the fight" as Brandie Craighead responded. (RR3, 34-35). Page 3

17 However, Brandie Craighead saw nothing that happened in Appellant's vehicle, but acknowledged that if she were driving a vehicle, and someone lunged forward from the back seat and she did not know what that person intended to do, she would try to stop them from acting. (RR3, 38, 45). Brandie Craighead did admit that Appellant was "trying to get away from the situation." (RR3, 39). Finally, Brandie Craighead had no personal knowledge regarding the injury to the CW's wrist. (RR3, 42-43). In fact, Officer Benjamin Woodruff testified that none of the other witnesses except Appellant and the CW could state what actually happened inside the Jetta. (RR3, 92-93, 97). Motion for New Trial On November 2, 2011, Appellant filed a motion for new trial. (CR, 94-99). In the motion for new trial, Appellant alleged that evidence was presented during trial that would justify an instruction in the jury charge on the issue of self-defense. (CR, 94-99). Citing various statutes and caselaw, Appellant argued that he was justified in using force against the CW because Appellant reasonably believed the force was immediately necessary for his protection against that the CW's use or attempted use of unlawful force. As evidence during the motion for new trial, the trial court admitted the affidavit of Appellant's trial counsel (RR5, 4; RR6, Defendant's Exhibit 2), a copy of the Reporter's Record, being an excerpt of the jury charge conference (RR5, 4; RR6, Defendant's Exhibit 1), and a copy of the Reporter's Record, being an excerpt of Appellant's testimony during the jury trial (RR6, State's Exhibit 1). Appellant's trial counsel testified through his affidavit that at the pretrial hearing held on September 29, 2011, trial counsel notified the trial court and State that he intended to offer evidence that Appellant's actions amounted to self defense, and that Appellant wants an Page 4

18 instruction on self-defense in the jury charge. (RR6, Defendant's Exhibit 2). When trial counsel arrived in court on October 4, 2011 for the beginning of trial, the proposed jury charge contained the instruction on self-defense. (RR6, Defendant's Exhibit 2). Then on October 5, 2011, after the parties rested and closed, the parties met in the chambers of the Court, the State objected to the self-defense instruction based upon Appellant's testimony. (RR6, Defendant's Exhibit 2). The trial court agreed with the State, and indicated to Appellant that he was not entitled to an instruction on self-defense, but was entitled to an instruction on necessity. (RR6, Defendant's Exhibit 2). Trial counsel did not object to the trial court not including an instruction on selfdefense. (RR5, 8; RR6, Defendant's Exhibit 2). During the hearing on the motion for new trial, Appellant objected to the trial court's refusal to allow the instruction of self-defense in the jury charge. (RR5, 4). The trial court overruled Appellant's motion for new trial (RR5, 12), and overruled Appellant's official objection to not allowing the instruction of self-defense in the jury charge. (RR5, 12). VI. SUMMARY OF THE ARGUMENTS Appellant presents three issues in this Brief. First, Appellant will show that a hypothetically-correct jury charge would have included an instruction for self-defense, and no reasonable trier of fact charged with such hypothetically-correct jury charge would have found the essential elements of assault-family violence or bodily injury beyond a reasonable doubt. Based upon this hypothetically-correct jury charge, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt because Appellant has shown that he acted in self-defense in his actions. As a result, this Court of Appeals should reverse the verdict of the jury and the judgment of the trial court, and enter a verdict of acquittal for Appellant. Page 5

19 Second, Appellant will show that the evidence at trial is legally insufficient to prove that Appellant committed assault-family violence or bodily injury because based upon the jury charge that was submitted that contained an instruction of necessity, no rational trier of fact could have found the essential elements of assault-family violence or bodily injury beyond a reasonable doubt. Appellant will show that he acted out of necessity when grabbed the CW's hand after she lunged forward from the back seat of a moving vehicle. Thus, Appellant will show that he reasonably believed that it was necessary to act as he did in order to prevent serious injury to himself, his daughter, and even the CW. As a result, this Court of Appeals should reverse the verdict of the jury and the judgment of the trial court, and enter a verdict of acquittal for Appellant. Finally, Appellant will show that the trial court erred because it did not allow Appellant a jury instruction of self-defense. Appellant will show that he was entitled to such an instruction, and the denial of this instruction violated his rights to due process and the right to an impartial jury under Articles V, VI, and XIV of the United States Constitution. As a result, Appellant will show that this Court of Appeals should reverse the verdict of the jury and the judgment of the trial court, and remand this case to the trial court for further proceedings. Page 6

20 VII. ISSUES PRESENTED AND ARGUMENT ISSUE ONE: THE EVIDENCE AT TRIAL IS LEGALLY INSUFFICIENT TO PROVE THAT APPELLANT COMMITTED ASSAULT - FAMILY VIOLENCE OR BODILY INJURY BECAUSE BASED UPON A HYPOTHETICALLY-CORRECT JURY CHARGE THAT CONTAINED AN INSTRUCTION OF SELF-DEFENSE, NO RATIONAL TRIER OF FACT COULD HAVE FOUND THE ESSENTIAL ELEMENTS OF ASSAULT - FAMILY VIOLENCE OR BODILY INJURY BEYOND A REASONABLE DOUBT. 1. Facts applicable to Issue One Because this issue pertains to the legal sufficiency of the evidence, Appellant refers this Court of Appeals to the facts in Part V above in their entirety, as issues regarding legal sufficiency requires an analysis of the entire record. See Greenwood v. State, 823 S.W.2d 660, 661 (Tex. Crim. App. 1992) (entire record needed to resolve sufficiency point of errors); See also O'Neal v. State, 811 S.W.2d 219, 221 (Tex. App. Dallas 1991). 2. Standards of Review for Claims of Legal Insufficiency Under the Jackson v. Virginia legal-sufficiency standard, an appellate court is required to defer to a jury s credibility and weight determinations. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Further, the Jackson v. Virginia legal-sufficiency standard is the only standard that an appellate court should use in determining whether the evidence is sufficient to support each element of a criminal offense. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). When reviewing the legal sufficiency of the evidence, an appellate court must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, and not whether the appellate court believes that the evidence at the trial established guilt beyond a reasonable doubt. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009), quoting Jackson v. Virginia, 443 U.S. at Further, after giving proper deference to the role of the trier of fact, an appellate court must uphold the verdict unless a Page 7

21 rational factfinder must have had reasonable doubt as to any essential element. Laster, 275 S.W.3d at 518, citing Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992). However, an appellate court is empowered to reverse a conviction because the verdict is contrary to the evidence presented at trial. Tex. Code Crim. Proc. Art A review of the legal sufficiency of evidence, although based upon a review of the facts, is a determination of law. Allen v. State, 651 S.W.2d 267, (Tex. Crim. App. 1983). An appellate court must always address challenges to the sufficiency of the evidence. Garza v. State, 715 S.W.2d 642, 645 (Tex. Crim. App. 1986). Such a review must be conducted when a legal sufficiency challenge is raised, even if the conviction must be reversed on other grounds, because a finding that the evidence is legally insufficient to support the conviction prevents a retrial under double jeopardy law. Ortiz v. State, 577 S.W.2d 246, 250 (Tex. Crim. App. 1979); Foster v. State, 635 S.W.2d 710, 717 (Tex. Crim. App. 1982); McFarland v. State, 930 S.W.2d 99, 100 (Tex. Crim. App. 1996). In reviewing a legal sufficiency-of-evidence claim, the appellate court should review the evidence in the light most favorable to the verdict or judgment, and this standard is used whether the case was proven by direct evidence or circumstantial evidence. Houston v. State, 663 S.W.2d 455, 456 (Tex. Crim. App. 1984). The standard for judging the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Carlsen v. State, 654 S.W.2d 444, 448 (Tex. Crim. App. 1983) (opinion on rehearing); Jackson v. Virginia, 443 U.S. at 319 n.12. The reviewing court should: (1) examine the record for evidence that supports the finding, while ignoring all evidence to the contrary; and (2) if there is no evidence to support the finding, Page 8

22 examine the entire record to see if the contrary proposition is established as a matter of law. Cooks v. State, 169 S.W.3d 288, 290 (Tex. App. Texarkana 2005) [applying civil standard of Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989)]. Evidence is legally sufficient only if the state has affirmatively proven each of the essential elements of the offense. Gold v. State, 736 S.W.2d 685 (Tex. Crim. App. 1987), overruled on other grounds, Torres v. State, 785 S.W.2d 824 (Tex. Crim. App. 1989). When considering a sufficiency point of issue, the appellate court should consider all of the evidence, both proper and improper, from both the guilt and punishment phases of the trial. Bain v. State, 677 S.W.2d 51, 52 n.1 (Tex. Crim. App. 1984); Jones v. State, 680 S.W.2d 499, 502 (Tex. App. Austin 1983, no pet.). The State s case falls short if there is a material variance between the indictment allegations and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001) (Explanation of a material variance versus an immaterial variance). A variance in pleading and proof can occur in two different ways: First, a variance can involve the statutory language that defines the offense. Johnson v. State, S.W.3d, 2012 Tex. Crim. App. LEXIS 479, PD (Tex. Crim. App. 2012). This can happen when a statute specifies alternate methods by which an offense could be committed, the charging instrument pleads one of those alternate methods, but the State proves, instead, an unpled method. Id. For example, the retaliation statute makes it a crime to threaten a witness or informant. Id. The first type of variance occurs if the State pleads only "witness" in the charging instrument rather than identify a person, and proves only the unpled element of "informant" at trial. Id. Second, a variance can involve a nonstatutory allegation that is descriptive of the offense in some way. Id. For example, the charging instrument pleads "Mary" as the victim, but the State proves that "John" Page 9

23 is actually the victim. Id. Or the charging instrument pleads the offense was committed with a knife, but the State proves at trial that a baseball bat was used. Id. With respect to the first type of variance between pleading and proof, the Court of Criminal Appeals has held, both before and after Gollihar v. State, that the failure to prove the statutory language pled renders the evidence legally insufficient to support the conviction. Id. The second type of variance is found in the facts of Gollihar v. State, where the State presented a facially adequate indictment alleging the theft of a go-cart that was described in part by listing a product serial number. 46 S.W.3d at 246. The proof at trial conformed in all respects to the allegations in the indictment except for a one-digit discrepancy in the serial number. Id. at 246. Although the jury convicted the defendant, the defendant claimed insufficiency of the evidence because the State had failed to prove what it had alleged in the indictment. Id. at 246. The court of appeals reversed the defendant s conviction based upon this issue, but the Court of Criminal Appeals overruled and reversed the court of appeals. Id. at 246; See Carter v. Estelle, 691 F.2d 777, (5th Cir. [Tex.] 1982) (Texas courts consistently held that variances between proof and indictment allegations require reversal with prejudice). The Court of Criminal Appeals held that only a material variance between the indictment and proof offered at trial will render the evidence insufficient. Gollihar v. State, 46 S.W.3d at 247. Evidence presented at a trial may be sufficient as a matter of law even though the evidence does not support the verdict under the jury charge, and even though the state failed to object to the jury charge, if the charge unnecessarily increases the state's burden of proof. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). In Malik v. State, the Court of Criminal Appeals articulated the modern Texas standard for ascertaining what the "essential elements of the crime" are; they are "the elements of the offense as defined by the hypothetically Page 10

24 correct jury charge for the case." Id. at Thus, to identify "the essential elements of the crime," a reviewing court must look to the "hypothetically correct jury charge for the case." Id., See Clinton v. State, 354 S.W.3d 795, 799 (Tex. Crim. App. 2011). Thus, if the jury charge is incorrect and sufficiency of the evidence is at issue, a reviewing court should not review the conviction under the charge that was actually given to the jury, but instead "by the elements of the offense as defined by the hypothetically correct jury charge" for the case. See Malik v. State, 953 S.W.2d at 240; See Vega v. State, 267 S.W.3d 912, 916 (Tex. Crim. App. 2008) (Evidence insufficient under the party liability theory submitted in the jury charge during trial, but under the hypothetically-correct jury charge using another party liability theory, the evidence was legally sufficient). If an appellate court finds that the evidence is insufficient to support a conviction, the court has the authority to reform the judgment to convict the accused of a lesser-included offense. Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993) (evidence that defendant possessed more than 400 grams of controlled substance insufficient but judgment reformed to reflect conviction of lesser offense of possession of 28 to 400 grams). An appellate court may so reform the judgment if (1) the court finds that the evidence is insufficient to support the charged offense but sufficient to support a conviction of the lesser-included offense and (2) either the jury was instructed on the lesser-included offense or one of the parties asked for but was denied such an instruction. Collier v. State, 999 S.W.2d 779, 782 (Tex. Crim. App. 1999); Chafin v. State, 95 S.W.3d 549, 553 (Tex. App. Austin 2002, no pet.). The standard of proof used in circumstantial evidence cases is the same ultimate standard as used in direct evidence cases, and a reviewing court may consider the existence of all alternative reasonable hypotheses in conducting such a review. Schexnider v. State, 943 S.W.2d Page 11

25 194, 198 (Tex. App. Beaumont 1997, no pet.); Wallace v. State, 955 S.W.2d 148, 151 (Tex. App. Beaumont 1997, no pet.); Smith v. State, 961 S.W.2d 501, 504 (Tex. App. San Antonio 1997, reh'g denied); Richardson v. State, 973 S.W.2d 384, 385 (Tex. App. Dallas 1998, no pet.). 3. Law and argument A. Defenses in general In any criminal prosecution, the state is required to charge the defendant with a criminal offense by an indictment or information, and then prove the allegations contained in the charging document beyond a reasonable doubt to obtain a conviction. Tex. Code Crim. Proc. Art. 1.05, 38.03; Tex. Pen. Code A defendant may still obtain an acquittal if the defendant raises an exception to the offense, a defense, an affirmative defense, or a justification. Tex. Pen. Code The defenses of necessity [Tex. Pen. Code 9.22] and self-defense [Tex. Pen. Code 9.31] both require the defendant to admit commission of the crime, but remove criminal liability by excusing or justifying the actions taken. These type defenses are different than ''affirmative defenses'' such as the defense to the criminal responsibility of a corporation or association, insanity, mistake of law, or duress. See Tex. Pen. Code 7.24, 8.01, 8.03, & B. When an instruction in the jury charge on a defense is required A defendant is entitled to a jury charge on any and all defensive issues raised by the evidence, and the burden is on the defense to present such evidence. Tex. Pen. Code 2.03(c); Willis v. State, 790 S.W.2d 307, 315 (Tex. Crim. App. 1990); Woodfox v. State, 742 S.W.2d 408, 409 (Tex. Crim. App. 1987); Montgomery v. State, 588 S.W.2d 950, 953 (Tex. Crim. App. 1979); Lopez v. State, 574 S.W.2d 563, 565 (Tex. Crim. App. 1978); Luck v. State, 588 S.W.2d 371, 375 (Tex. Crim. App. 1979). Further, if the evidence raises more than one defensive issues, the jury must be charged on each of those defenses or issues, and such jury charges must be Page 12

26 given even if the evidence raising the issues is conflicting or the defenses are mutually inconsistent. See Thomas v. State, 662 S.W.2d 677, 679 (Tex. App. Dallas 1983), aff'd, 678 S.W.2d 82, 84 (Tex. Crim. App. 1984). Although the state must carry its burden of proof on each element of a criminal offense, the defendant must carry the initial burden of producing evidence raising defensive issues. Further, a defendant may meet the burden of production of evidence supporting a defensive issue by evidence that is strong, feeble, unimpeached, or contradicted. See Woodfox v. State, 742 S.W.2d at 409; Ramos v. State, 478 S.W.2d 102, 104 (Tex. Crim. App. 1972); Montgomery v. State, 588 S.W.2d at 952. Such instruction must be submitted to the jury even if the trial court does not believe the evidence, because the jury, not the judge, must decide the credibility of the evidence. See Woodfox v. State, 742 S.W.2d at 410. C. The State's Burden of Proof on Defenses If a defense is raised by the evidence, the trial court must charge the jury that a reasonable doubt on the issue requires the jury to acquit the defendant. Tex. Pen. Code 2.03(d). The State bears the burden of proof to disprove the defense beyond a reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 912 (Tex. Crim. App. 1991); Luck v. State, 588 S.W.2d at 375. D. Standard for this Court of Appeals If a defendant is convicted and on appeal challenges the sufficiency of the evidence to negate the exception or disprove the defense, the reviewing court must apply the same standard of evidentiary review applicable to the elements of the state's case: considering the evidence in the light most favorable to the prosecution, the appellate court must determine whether any rational trier of fact could have rejected the defense or exception beyond a reasonable doubt. Page 13

27 Jackson v. Virginia, 443 U.S. at 320; Meraz v. State, 785 S.W.2d 146, 150 (Tex. Crim. App. 1990). Appellant will argue both that the trial court should have allowed an instruction on selfdefense, and that the trier of fact improperly rejected the defense of necessity. This Court of Appeals must apply a different evidence sufficiency test than that applicable to the state's proof of its case: this Court must determine whether, after considering all of the evidence relevant to the issue, the resolution by the trier of fact of the defense adverse to the defendant was so against the great weight and preponderance of the evidence as to be manifestly unjust. Meraz v. State, 785 S.W.2d at 155; Arnold v. State, 719 S.W.2d 590 (Tex. Crim. App. 1986); Schuessler v. State, 719 S.W.2d 320 (Tex. Crim. App. 1986); Brown v. State, 804 S.W.2d 566, 571 (Tex. App. Houston [14th] 1991, pet. ref.); White v. State, 591 S.W.2d 851, 855 (Tex. Crim. App. 1979) (The reviewing court must consider all the evidence, including the evidence that supports the verdict and the evidence that does not support the conviction, and set aside the verdict if the reviewing court conclude that the evidence is so against the weight and preponderance of the evidence as to be clearly wrong and manifestly unjust, regardless of whether there is evidence of probative force to support it). E. Effect of reversal If this Court of Appeals finds that the state failed to negate an exception to the applicable statute, or failed to disprove a defense raised by the evidence, the state is constitutionally barred from prosecuting the defendant again. Burks v. United States, 437 U.S. 1, (1978); Greene v. Massey, 437 U.S. 19, 25 (1978). Page 14

28 F. Appellant argued for jury instruction on self-defense In Appellant's motion for new trial, Appellant alleged that evidence was presented during trial that would justify an instruction in the jury charge on the issue of self-defense. (CR, 94-99). Citing various statutes and caselaw, Appellant argued that he was justified in using force against the CW because Appellant reasonably believed the force was immediately necessary for his protection against that the CW's use or attempted use of unlawful force. As evidence during the motion for new trial, the trial court admitted the affidavit of Appellant's trial counsel (RR5, 4; RR6, Defendant's Exhibit 2), a copy of the Reporter's Record, being an excerpt of the jury charge conference (RR5, 4; RR6, Defendant's Exhibit 1), and a copy of the Reporter's Record, being an excerpt of Appellant's testimony during the jury trial (RR6, State's Exhibit 1). Appellant's trial counsel testified through his affidavit that at the pretrial hearing held on September 29, 2011, trial counsel notified the trial court and State that he intended to offer evidence that Appellant's actions amounted to self defense, and that Appellant wants an instruction on self-defense in the jury charge. (RR6, Defendant's Exhibit 2). When trial counsel arrived in court on October 4, 2011 for the beginning of trial, the proposed jury charge contained the instruction on selfdefense. (RR6, Defendant's Exhibit 2). Then on October 5, 2011, after the parties rested and closed, the parties met in the chambers of the Court, the State objected to the self-defense instruction based upon Appellant's testimony. (RR6, Defendant's Exhibit 2). The trial court agreed with the State, and indicated to Appellant that he was not entitled to an instruction on self-defense, but was entitled to an instruction on necessity. (RR6, Defendant's Exhibit 2). Trial counsel did not object to the trial court not including an instruction on self-defense. (RR5, 8; RR6, Defendant's Exhibit 2). Page 15

29 During the hearing on the motion for new trial, Appellant objected to the trial court's refusal to allow the instruction of self-defense in the jury charge. (RR5, 4). The trial court overruled Appellant's motion for new trial (RR5, 12), and overruled Appellant's official objection to not allowing the instruction of self-defense in the jury charge. (RR5, 12). As a result, Appellant properly argued for an instruction on self-defense, but was overruled by the trial court on this issue. G. Self-defense in general A person is justified in using force (defending one's self) against another person ''when and to the degree'' that the defendant ''reasonably believes the force is immediately necessary'' for protection against that other person's use or attempted use of unlawful force. Tex. Pen. Code 9.31(a). "Reasonable belief" is a belief that would be held by an ordinary and prudent man in the same circumstances as the person. Tex. Pen. Code 1.07(a)(42); See Werner v. State, 711 S.W.2d 639, 645 (Tex. Crim. App. 1986); Ex parte Drinkert, 821 S.W.2d 953, 955 (Tex. Crim. App. 1991). "Unlawful" means criminal or tortious. Tex. Pen. Code 1.07(a)(48). Actual danger is not required, and so long as a person s belief is reasonable, the person is entitled to use force to protect against an apparent danger. Jones v. State, 544 S.W.2d 139, 142 (Tex. Crim. App. 1976); Valentine v. State, 587 S.W.2d 399, (Tex. Crim. App. 1979). Further, a person has the right to defend himself if acting on the reasonable apprehension of danger as it appeared at the time. Broussard v. State, 809 S.W.2d 556, 559 (Tex. App. Dallas 1991). So, if the person reasonably believed that the other person s use of force was unlawful, it is irrelevant whether the other party s use of force was in fact unlawful. Dyson v. State, 672 S.W.2d 460, (Tex. Crim. App. 1984); Semaire v. State, 612 S.W.2d 528, 530 (Tex. Crim. App. 1980). Page 16

30 The use of force is not justified if the defendant is responding to mere verbal provocation, a search or arrest by a peace officer, force that the defendant consented to or provoked, or if the defendant sought an explanation from or discussion with the other person concerning their differences while the defendant was carrying a weapon in violation of Texas Penal Code See Tex. Pen. Code 9.31(b). Further, a defendant is not required to retreat before using nondeadly force. See Young v. State, 530 S.W.2d 120, 123 (Tex. Crim. App. 1975); Sidney v. State, 753 S.W.2d 410, 412 (Tex. App. Houston [14th Dist. pet. ref.). In fact, a person has the right to strike the first blow if that action is immediately necessary. Sheppard v. State, 545 S.W.2d 816, 819 (Tex. Crim. App. 1977); Warren v. State, 764 S.W.2d 906, 909 (Tex. App. Corpus Christi 1989, pet. ref.). A defendant who claims self-defense must generally admit to committing an intentional act against the victim and assert that the act was justified under the circumstances. See Torres v. State, 751 S.W.2d 705, 707 (Tex. App. Corpus Christi 1988, pet. ref.). By generally admit, the defendant may deny the prosecution's specific allegations concerning his or her conduct and still be entitled to a self-defense charge. See Willis v. State, 790 S.W.2d at 314 (A defendant need not always admit actual charged offense exactly as pleaded before asserting self-defense claim); See also Holloman v. State, 948 S.W.2d 349, 352 (Tex. App. Amarillo 1997, no pet.) (Court of Appeals held that it is ''nonsensical'' to prohibit the defendant from claiming self-defense if the defendant admitted ramming the complaining witness with his shoulder rather than striking the complaining witness with his fists as alleged in the indictment). In Withers v. State, 994 S.W.2d. 742, (Tex. App. Corpus Christi 1999), the Court of Appeals held that the trial court erroneously denied the appellant's request for self-defense instruction when the defendant admitted applying force to keep the complaining witness under control, but denied specific Page 17

31 allegations that alleged the use of excessive force. In VanBrackle v. State, 179 S.W.3d 708, 714 (Tex. App. Austin 2005), the Court of Appeals held that a self-defense instruction should have been given even though there was also evidence of involuntary conduct that would prevent the finding of guilt of criminal offense. H. Appellant had a reasonable belief that force was necessary Self-defense is justifiable whenever the defendant ''reasonably believes the force is immediately necessary.'' Tex. Pen. Code 9.31(a); See Foster v. H.E. Butt Grocery Co., 548 S.W.2d 769, 771 (Tex. App. San Antonio 1977, ref. n.r.e.) (Except for the burden of proof, law of self-defense is same in both civil and criminal cases). Actual danger is not required, and as long as a defendant's belief is reasonable, the defendant is entitled to use force to protect against an apparent danger. See Jones v. State, 544 S.W.2d at 142; Valentine v. State, 587 S.W.2d at Further, a defendant has the right to defend himself or herself if acting on the reasonable apprehension of danger as it appeared at the time. Broussard v. State, 809 S.W.2d at 559. For example, if the defendant reasonably believed that the other person's use of force was unlawful, it is irrelevant whether the other party's use of force was in fact unlawful. Dyson v. State, 672 S.W.2d at ; Semaire v. State, 612 S.W.2d at 530; Bennett v. State, 726 S.W.2d 32, 38 (Tex. Crim. App. 1986). And because a defendant also has the right to defend against ''apparent danger'' to the same extent as if the danger were real, a defendant has a right to a jury instruction informing the jury that a claim of valid self-defense is established even if self-defense would not be justified if the defendant had known the actual facts, so long as the defendant's actions would have been justified under the circumstances as the defendant perceived them. See Torres v. State, 7 S.W.3d 712, 715 (Tex. App. Houston [14th Dist.] 1999) (When the evidence supported self-defense Page 18