Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 24th District Court of Refugio County, Texas.
Justices Contreras, Benavides, and Longoria
L. LONGORIA Justice
William Rogers challenges his convictions for burglary of a
habitation, a first-degree felony, and aggravated assault, a
second-degree felony. See Tex. Penal Code Ann.
§§ 30.02, 22.02(a)(2) (West, Westlaw through 2015
R.S.). We affirm in part and vacate in part.
afternoon of February 14, 2013, appellant left work and drove
to the house of Sandra and David Watson. Sandra and appellant
had been having an affair for at least a year prior to that
date. It is undisputed that David returned to the house while
appellant was still present and a fight ensued in which
appellant shot David in the genitals with a pistol he
obtained from inside the house. The State indicted appellant
for one count of burglary of a habitation (Count 1), alleging
that appellant committed the felony of aggravated assault
against David while in his residence. See id. §
30.02(a)(3). Under a separate cause number, the State
indicted appellant for aggravated assault of David with a
deadly weapon (Count 2). See id. § 20.02(a)(2).
The case was tried to a jury.
and David testified to very different versions of their
altercation. Appellant's version is that Sandra asked him
to go to the house that day to feed her cats. David returned
to the house, and appellant hid in a closet intending to wait
until he had a chance to leave without being seen. David
found appellant there and backed him into a large safe
located at the back of the closet while brandishing a knife.
Even though appellant admittedly had his own firearm with
him, he grabbed a gun that was resting on top of the safe and
extended it towards David. Appellant testified that David
grabbed the gun, and appellant simultaneously fired.
in contrast, testified that he returned from work and went
into the closet to change clothes without knowing anyone was
there. Appellant then "stood up, called me a MF, and a
bullet went off, a gun went off." The two men then
grappled with each other throughout several rooms in the
house but disagreed substantially about the precise sequence
of events after the shooting. They also disagreed on how the
to David, his gun jammed and he fled across the front lawn to
a neighbor's house as appellant fired at him from the
front porch. According to appellant, David hid behind some
trees in the front yard and shot at appellant as he fled back
to his truck, which was parked down the street.
the close of evidence, appellant submitted requested jury
charges on the theories of self-defense and necessity.
See Tex. Penal Code Ann. §§ 9.31, 9.32,
9.22 (West, Westlaw through 2015 R.S.). The trial court
refused to give either charge. The jury returned a verdict of
guilty on both counts. After a punishment trial, the jury
imposed concurrent sentences of imprisonment for forty years
on Count 1 and twenty years on Count 2. Appellant argues two
issues on appeal: (1) the trial court erred by refusing to
instruct the jury on self-defense and necessity, and (2)
punishing him on both counts violates the constitutional
protection against double jeopardy.
Requested Jury Instructions
argues in his first issue that the trial court erred when it
refused his requested jury instructions on self-defense and
Standard of Review
courts review a claim of charge error through a two-step
process; first determining whether error exists, and then
considering whether the error was harmful. Phillips v.
State, 463 S.W.3d 59, 64-65 (Tex. Crim. App. 2015).
Preservation of error does not become an issue until the
second step of the analysis, where it dictates the degree of