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Rogers v. State

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

March 9, 2017

WILLIAM ROGERS, Appellant,
v.
THE STATE OF TEXAS, Appellee.

         On appeal from the 24th District Court of Refugio County, Texas.

          Before Justices Contreras, Benavides, and Longoria

          OPINION

          NORA L. LONGORIA Justice

         Appellant 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.

         I. Background

         On the 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.

         Appellant 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.

         David, 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 struggle ended.

         According 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.

         Following 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.

         II. Requested Jury Instructions

         Appellant argues in his first issue that the trial court erred when it refused his requested jury instructions on self-defense and necessity.

         A. Standard of Review

         Appellate 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 ...


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