No. 05-08-01082-CR
Opinion Filed July 30, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Criminal Court No. 4, Dallas County, Texas, Trial Court Cause No. MA07-46666-E.
Before Chief Justice THOMAS and Justices FITZGERALD and MALONEY.
The Honorable Frances Maloney, Retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
Opinion By Justice MALONEY.
The jury convicted Russel Briggs Brewer of assault. The trial court assessed punishment at ninety days confinement in the Dallas County Jail and a fine of $500, suspended the jail sentence and placed appellant on community supervision for nine months. In one issue, appellant contends the trial court should have instructed the jury that the State must disprove self-defense beyond a reasonable doubt. We affirm the trial court's judgment.
Background
The complainant and appellant lived down the street from each other. Both families owned dogs. One night, a month before the date alleged in the instant case, the complainant was walking his dog. While walking his dog, an incident occurred involving appellant, appellant's wife, the complainant, and their dogs. The facts of this confrontation were disputed at trial. On the night of the offense, the complainant was again walking his dog when appellant let his unleashed dog out of the house. The dog "charged" the complainant and his dog. The complainant and appellant exchanged words. According to the complainant, appellant punched him twice in the face and pushed him to the pavement. According to appellant, the complainant came after him aggressively and he defended himself, resulting in both men falling to the ground. During the scuffle, the complainant's head hit the sidewalk, causing an injury that required sixteen stitches. Should the Trial Court Have Submitted a Separate Jury Issue on the State's Burden to Disprove Self-Defense Beyond a Reasonable Doubt?
In a sole issue, appellant argues the trial court should have instructed the jury that the State had to disprove self-defense beyond a reasonable doubt. Appellant contends the court's jury charge was "devoid of a direct statement that the State had the burden of persuasion on the self defense issue." He maintains that not including his requested instruction "allowed the State to virtually omit any discussion of self defense in closing." The State responds that the trial court instructed the jury that the State had to prove each element of the offense beyond a reasonable doubt, and if the jury had a reasonable doubt on whether appellant acted in self-defense, it should "give [appellant] the benefit of that doubt" and find appellant not guilty. The State contends that those instructions combined with the charge on appellant's presumption of innocence instruction resulted in a correct charge. 1. Standard of Review
When reviewing jury charge error, we must first determine if error actually exists in the jury charge and, if we find error, determine if that error harmed appellant. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g). If appellant objected, we reverse if we find any actual harm, regardless of the degree. Anderson v. State, 11 S.W.3d 369, 374 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). In assessing actual harm, we must examine the harm "in light of the entire jury charge; the state of the evidence, including the contested issues and weight of probative evidence; the argument of counsel; and any other information revealed by the record of the trial as a whole." Frost v. State, 25 S.W.3d 395, 400 (Tex.App.-Austin 2000, no pet.) (citing Alamanza, 686 S.W.2d at 171). If appellant does not object to the jury charge at trial, he must show he suffered actual, egregious harm. Almanza, 686 S.W.2d at 171. For charge error to result in egregious harm, it must affect "the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory." Ngo v. State, 175 S.W.3d 738, 750 (Tex.Crim.App. 2005). To establish egregious harm, it is not essential to show direct evidence of harm. See Stokes v. State, 74 S.W.3d 48, 50 (Tex.App.-Texarkana 2002, pet. ref'd). We review the record to determine if a defendant suffered actual, not theoretical, harm. See Morris v. State, 67 S.W.3d 257, 261 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd) (citing Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994)). 2. Applicable Law
A defendant has the burden of producing some evidence to support a claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003). The State has the burden of persuasion in disproving self-defense. Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App. 1991). This burden does not require the State to produce evidence refuting the self-defense claim; rather, the burden requires the State to prove its case beyond a reasonable doubt. Id. The Texas Penal Code places the burden on the State to prove each element of the offense charged, it does not require the State to "negate the existence of a defense." Tex. Penal Code Ann. § 2.03 (b) (Vernon 2003). A person commits a Class A misdemeanor if the person intentionally, knowingly, or recklessly causes bodily injury to another. See Tex. Penal Code Ann. § 22.01(a)(1) (Vernon Supp. 2008). A person who intentionally or knowingly causes physical contact with another and who reasonably believes the other would consider that contact offensive or provocative commits a Class C misdemeanor. See id. § 22.01(a)(3), (c). 4. Application of Law to Facts
After preparing the jury charge, the trial court held a hearing in which both the State and appellant suggested changes to the language in several areas. Appellant requested the trial court include at the end of the second paragraph on self-defense that "The burden is upon the State to disprove beyond a reasonable doubt the defendant's claim of self-defense." He did not request the trial court to charge on the State's burden of persuasion. The trial court ruled it found nothing in the applicable statute that shifted that burden to the State and denied appellant's requested charge. See Tex. Penal Code Ann. § 2.03 (b). The trial court delivered a charge that properly instructed the jury to acquit appellant if it believed he acted in self-defense or if it had a reasonable doubt as to whether he acted in self-defense. Because the charge delivered adequately instructed the jury on the State's burden and the jury's consideration of appellant's claim of self-defense, the trial court did not err in denying appellant's requested charge. See Saxton, 97 S.W.3d at 913. We resolve appellant's issue against him. We affirm the trial court's judgment.