Opinion
05-22-00013-CR
06-13-2023
LEON BARNES III, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the County Criminal Court No. 10 Dallas County, Texas Trial Court Cause No. M2022544
Before Justices Nowell, Goldstein, and Breedlove
MEMORANDUM OPINION
ERIN A. NOWELL, JUSTICE
A jury convicted appellant Leon Barnes III of assault, and the trial court sentenced him to 150 days in jail, probated for fifteen months. Appellant argues the trial court erred by refusing to instruct the jury on the law of self-defense. We affirm the trial court's judgment.
Background
On September 7, 2020, Brandon Black drove his children to the designated drop-off location for child custody exchanges at the Farmers Branch Police Station. He parked in front of his ex-wife's car, essentially blocking her from leaving. Appellant, who was in a relationship with Black's ex-wife, was also present at the exchange. According to Black, appellant was not allowed to attend the exchange. The two men openly disliked each other and had problems in the past. What transpired next is gleaned from a cellphone video Black's ex-wife recorded at the scene and Black's testimony.
The two men exited their cars, and appellant told Black's ex-wife to turn up the music in the car. Black was standing by his car with his arms outstretched in the air with his hands open as he talked to appellant, but his words cannot be heard on the video. Black testified appellant was cussing and insulting him "like always," which escalated to an argument. Black admitted he told appellant, "Make my day" in response to something appellant said, but Black could not remember appellant's statement.
Black testified appellant then challenged him to "cross an imaginary line." Black crossed the imaginary line, and appellant pushed him back. Black stumbled slightly to regain his balance, and appellant aggressively pushed him again. Black again regained his balance and took two steps towards appellant while smiling. Appellant then grabbed Black by the neck and started choking him. The two men struggled until appellant slammed Black against the car, put him in a choke hold, and threw him to the ground. Appellant stomped Black in the stomach and although not captured on video because the men were on the ground, Black testified appellant continued to stomp him, tried to choke him, and attempted to put a knee in his private parts. These injuries caused him pain, and his throat was sore for approximately four weeks from the choking. He had lacerations on his knees, ankles, hands, and elbows from where appellant threw him to the ground. He had bruises to his legs and abdomen from the stomping.
Black eventually freed himself, got on top of appellant, and tried to restrain him until officers arrived. Another person, thinking Black was the aggressor, joined the fight and choked Black until he passed out. Black's nine-year-old daughter witnessed the events from inside the car and is heard on the video crying and asking for someone to call 9-1-1. At the end of the altercation, appellant pointed towards the car and asked Black's ex-wife, "You got it recorded?"
Officer Jose Cortez responded to the incident and talked to appellant regarding his version of events. Appellant told Officer Cortez that Black pushed him so he struck him back. Appellant also said Black choked him.
Black's ex-wife left before officers arrived, but Officer Cortez requested she return to the scene to give a witness statement and provide her cellphone video. After watching the video, Officer Cortez determined the video contradicted appellant's story. Officers concluded appellant was the aggressor and arrested him.
At trial, the jury watched the video and heard testimony from Black and Officer Cortez. Officer Cortez explained the video as follows:
As Black approaches him, [appellant] just kind of does a shoving-up motion. Once Black kind of laughs it off or something, I remember him
smiling and [appellant] does it again; does a push-up effect and that's when they start physically fighting.
Black testified he had "no clue" what he meant when he said, "Make my day," but he denied challenging appellant to a fight because he would never fight in front of his children. Although Black admitted crossing appellant's "imaginary line," he did not think crossing it could lead to a fight. He also admitted he told police after the attack that "This is what I've been waiting on, for him to finally touch me. It's on now."
During the charge conference, appellant requested a self-defense instruction. The State objected because the defense had not put on any evidence of self-defense, instead relying on Black's responses. Defense counsel responded the jury could draw a reasonable conclusion from watching the video without further evidence from the defense, thereby satisfying his burden for the instruction. Appellant also requested an instruction on effective consent or "more informally known as the mutual combat defense in Texas." The trial court denied the self-defense instruction but granted the effective consent instruction.
During closing argument, defense counsel argued, "We should call this exactly what it is, a fight between two men." He emphasized the effective consent defense and that "Mr. Black walked into this situation knowing exactly what he was going to get." Defense counsel described it as a "fistfight between two men that the alleged victim consented to." The jury disagreed and found appellant guilty of assault. This appeal followed.
Standard of Review and Applicable Law
We review charge error by first determining whether error exists, and if so, we then evaluate the harm caused by the error. Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim. App. 2017). When a defendant timely objects to the charge, as here, reversal is required if we find "some harm" to the defendant. Id.; see also Carrera v. State, No. 05-18-01094-CR, 2020 WL 2510188, at *3 (Tex. App.-Dallas May 15, 2020, pet. ref'd) (mem. op., not designated for publication).
A defendant is entitled to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or uncontradicted, and regardless of how the trial court views the credibility of the defense. Celis v. State, 416 S.W.3d 419, 430 (Tex. Crim. App. 2013). The defendant bears the burden of production with respect to a defense, and the issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense. Shaw v. State, 243 S.W.3d 647, 658 (Tex. Crim. App. 2007); Kuhn v. State, 393 S.W.3d 519, 532 (Tex. App.-Austin 2013, pet. ref'd). "[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 inference that the element is true." Shaw, 243 S.W.3d at 657-58.
In determining whether a defense is supported by the evidence, the court views the evidence in the light most favorable to the defendant's requested jury instruction and relies "on its own judgment, formed in the light of its own common sense and experience, as to the limits of rational inference from the facts proven." Id. at 658; Jordan v. State, 593 S.W.3d 340, 343 (Tex. Crim. App. 2020); Williams v. State, No. 05-21-00920-CR, 2022 WL 18006700, at *9 (Tex. App.-Dallas Dec. 30, 2022, no pet.) (mem. op., not designated for publication). Whether a defense is raised by the evidence is a sufficiency issue, reviewable on appeal as a question of law. Shaw, 243 S.W.3d at 658.
Appellant challenges the trial court's refusal to instruct the jury on self-defense. A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect against the other's use or attempted use of unlawful force. Tex. Penal Code Ann. § 9.31(a). A "reasonable belief" means "a belief that would be held by an ordinary and prudent man in the same circumstances as the actor." Id. § 1.07(a)(42).
To merit a self-defense instruction, an appellant must have adduced some evidence of his state of mind at the time he used the force at issue. Vega v. State, No. 05-16-00882-CR, 2017 WL 1245423, at *2 (Tex. App.-Dallas Apr. 5, 2017, no pet.) (mem. op., not designated for publication). The evidence must show he was "in some immediate apprehension or fear" of receiving the purportedly unlawful force by the complainant. Id. (citing Smith v. State, 676 S.W.2d 584, 585 (Tex. Crim. App. 1984) (en banc)). However, a defendant is not required to testify in order to raise the issue of self-defense. VanBrackle v. State, 179 S.W.3d 708, 712 (Tex. App.-Austin 2005, no pet.). The issue "may be raised by the testimony of witnesses who testify to the defendant's acts and words at the time of the offense," which includes State's witnesses. Vasquez v. State, No. 01-17-00597-CR, 2018 WL 6216025, at *3 (Tex. App.-Houston [1st Dist] Nov. 29, 2018, pet. dism'd) (mem. op., not designated for publication); Smith, 676 S.W.2d at 587. But where, as here, the defendant does not testify, there still must be some evidence of his subjective belief that the force was necessary to protect himself. Vasquez, 2018 WL 6216025, at *3. There must be some "observable manifestations" of the defendant's state of mind at the time of the alleged act of self-defense. Id. Examples of observable manifestations of a defendant's state of mind include evidence that the defendant called for help during an altercation or told the complainant, "I don't want to fight you . . . leave me alone." See VanBrackle, 179 S.W.3d at 714; see also Smith, 676 S.W.2d at 586.
Analysis
Appellant contends the video satisfied his burden to receive a self-defense instruction. He relies on the following to support his argument:
• Black blocked him in the parking lot, and he could not drive away.
• Black "strutted around" and threw his hands in the air before walking towards appellant.
• Appellant "literally designated a line of self-defense" so that Black would "know the point past which [appellant] would feel it necessary to defend himself."
• Black crossed the line, and appellant pushed Black back, but Black "reengaged with a taunting smile."
In his brief, appellant further described Black as "provocatively, aggressively" crossing the imaginary line. None of these facts, however, constitute evidence of an act or attempted act of violence by Black that would cause appellant to reasonably believe force was immediately necessary to protect himself. Although Black had his hands in the air when the men first started talking, his palms were open rather than balled into fists. When Black walked towards appellant, he did not have his arms or hands up in an aggressive manner. To the extent Black admitted he said, "Make my day," before crossing appellant's imaginary line, "the use of force against another is not justified in response to a verbal provocation alone." See Tex. Penal Code Ann. § 9.31(b)(1); Gamino v. State, 537 S.W.3d 507, 510 (Tex. Crim. App. 2017).
The record must contain some evidence or "observable manifestations" of the defendant's state of mind at the time of the alleged act of self-defense. See VanBrackle, 179 S.W.3d at 713. This record is silent as to what appellant believed at the time he assaulted Black. However, appellant conceded in his brief he "reacted initially by pushing Black away," not that Black acted violently towards him or threatened or attempted to use force against him. Two witnesses testified appellant was the aggressor. The video likewise depicts appellant as the aggressor.
Although the men exchanged words prior to the altercation, appellant told Black's ex-wife to turn up the music in the car, which drowned out the conversation. Thus, the video does not suggest that appellant said he did not want to fight or that he warned Black that if Black crossed the imaginary line, he would fight back. See, e.g., id. (pushing a gun away and calling for help were "observable manifestations" of a belief that it was necessary to defend oneself). There is simply no evidence of "observable manifestations" showing appellant's subjective state of mind from the video in this case. See, e.g., Vasquez, 2018 WL 6216025, at *3 (nothing suggested victim did or said anything causing defendant to fear victim would use or attempt to use deadly force against him and every witness testified defendant was the aggressor); Vega, 2017 WL 1245423, at *2 (victim's use of force to flip a bed back towards defendant after he flipped it towards her was no evidence he reasonably believed punching, kicking, and grabbing victim was immediately necessary to protect himself from that use of force); Alexander v. State, No. 03-14-00290-CR, 2016 WL 286385, at *4 (Tex. App.-Austin Jan. 21, 2016, pet. ref'd) (mem. op., not designated for publication) (evidence that complainant was "very angry and upset" during altercation and that she bit defendant's arm, cut his lip, and punched him did not establish "anything regarding [defendant's] state of mind during altercation").
Our conclusion should not be interpreted to mean a video can never demonstrate an "observable manifestation" of a defendant's reasonable belief he needed to use self-defense against another's use of unlawful force.
Reviewing the evidence in the light most favorable to the requested instruction and relying on our "own judgment, formed in the light of [our] own common sense and experience, as to the limits of rational inference from the facts proven," we conclude there is no evidence raising an inference appellant reasonably believed it was immediately necessary to use unlawful force against Black to protect himself. See Taplin v. State, No. 03-19-00257-CR, 2020 WL 6121971, at *4 n.3 (Tex. App.- Austin Oct. 15, 2020, pet. ref'd) (mem. op., not designated for publication) (citing Shaw, 243 S.W.3d at 658)). Accordingly, the trial court did not err by refusing to instruct the jury on self-defense. We overrule appellant's sole issue.
Conclusion
The judgment of the trial court is affirmed.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 13th day of June, 2023.