Opinion
No. 04-18-00215-CR
11-04-2020
Obinna EBIKAM, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the County Court at Law No. 13, Bexar County, Texas
Trial Court No. 553192
Honorable Crystal D. Chandler, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Patricia O. Alvarez, Justice Beth Watkins, Justice REVERSED AND REMANDED
This appeal is on remand from the Texas Court of Criminal Appeals. Obinna Ebikam was convicted by a jury of assault causing bodily injury. The sole issue presented on appeal is whether the trial court erred in denying a request for a jury instruction on self-defense. On original submission, we held the trial court did not err because Ebikam's evidence did not contain any admission that he struck the complainant with his hand as alleged in the charging instrument. The Texas Court of Criminal Appeals held a specific admission about the manner and means allegation in the charging instrument was not required and remanded the cause to this court with instructions to decide whether Ebikam's evidence "foreclose[d] commission of the conduct in question." Ebikam v. State, No. PD-1199-18, 2020 WL 3067581, at *1 (Tex. Crim. App. June 10, 2020) (not designated for publication). As the court noted, "a defensive theory that completely forecloses the commission of the offense itself does not entitle a defendant to a jury instruction on the defensive issue." Id. at *4.
APPLICABLE LAW AND BACKGROUND
The applicable law is fully laid out in the three opinions issued by the Texas Court of Criminal Appeals, which include a concurring opinion by Judge David Newell and a dissenting opinion by Judge Kevin Yeary. We also recently restated the applicable law in Ayala v. State, No. 04-19-00593-CR, 2020 WL 5647048, at *2 (Tex. App.—San Antonio Sept. 23, 2020, no pet. h.) (not designated for publication).
The background is also fully set forth in the prior opinions. Pertinent to our analysis, Ebikam denied striking the complainant, Joy Ebo, with his hand; however, he admitted he pushed the door to block Ebo's entry into his apartment and caused her injury.
ANALYSIS
Applying the law to the facts in the instant case, we agree with Judge Yeary's analysis. As he explained:
Although Judge Yeary dissented from the majority's pronouncement of the law, he explained the manner in which he would apply the law as pronounced by the majority, to the evidence presented. This is the analysis to which we now refer.
Appellant testified that the victim attempted to "barge" into his home, and that he resisted her by pushing back against the door. He was able to successfully keep her out until, eventually, he decided to grab his nearby cell phone to call the police. Only when he reached for the phone was the victim able to get through the doorway. Appellant denied having ever struck her with his hand. The prosecutor then asked him, "So then how did she get that busted lip?" He replied: "To answer the question, well, you know, someone is trying to struggle to get into someone's apartment, and in the process, the lips are so tender, I didn't hit her. If she sustained any injury, I did not see."
I believe that, under all the attendant circumstances, the jury could have rationally inferred from this testimony that Appellant caused the victim's split lip as he was pushing back against the door, even if Appellant himself claimed not to realize that he had done so. If he acted at least recklessly with respect to whether he might cause her that specific injury in that specific way, then he still committed conduct that would otherwise constitute the offense. See TEX. PENAL CODE § 22.01(a)(1) ("A person commits an offense if the person ... intentionally, knowingly, or recklessly causes bodily injury to another[.]"). But if the jury also believed that he only did so as a reasonable response to her "barging" into his apartment, then his conduct in committing the offense may have been found to be justified as a use of non-deadly force in response to a perceived use of non-deadly force against him. See TEX. PENAL CODE § 9.31(a) ("[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."). There was some evidence to justify submitting the requested instruction.Ebikam, 2020 WL 3067581, at *8 (Yeary, J., dissenting); see also Ayala, 2020 WL 5647048, at *3 (holding evidence supported instruction).
With regard to harm, we hold the trial court's refusal to provide the instruction resulted in some harm to Ebikam. "The difference between the instructions that were given and those that should have been given is the difference between foreclosing self-defense and allowing fair consideration of it." Jordan v. State, 593 S.W.3d 340, 348 (Tex. Crim. App. 2020).
CONCLUSION
The trial court's judgment is reversed, and the cause is remanded to the trial court for further proceedings.
Sandee Bryan Marion, Chief Justice DO NOT PUBLISH