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Rogers v. State

Court of Criminal Appeals of Texas

June 27, 2018




          KEEL, J.

         A jury convicted Appellant of aggravated assault and burglary of a habitation with commission or attempted commission of aggravated assault. The court of appeals vacated the aggravated assault conviction on double jeopardy grounds because it was a lesser included offense of the burglary. Rogers v. State, 527 S.W.3d 329, 336 (Tex. App. - Corpus Christi 2017, pet. granted). We granted review of the court of appeals' holding in the burglary case that the trial court's refusal to instruct the jury on self-defense and necessity, if error, was harmless. Id. at 333. We conclude that the trial court's refusal to instruct on self-defense and necessity, if error, was harmful to the defense. Consequently, we reverse and remand for the court of appeals to decide whether the trial court's ruling was erroneous.

         Standard of Review

         When jury charge error is preserved at trial, the reviewing court must reverse if the error caused some harm. Cornet v. State, 417 S.W.3d 446, 449 (Tex. Crim. App. 2013); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). "Some harm" means actual harm and not merely a theoretical complaint. Cornet, 417 S.W.3d at 449; Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012); Almanza, 686 S.W.2d at 174. There is no burden of proof associated with the harm evaluation. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). Reversal is required if the error was calculated to injure the rights of the defendant. Id., quoting Almanza, 686 S.W.2d at 171. The harm evaluation entails a review of the whole record, including the jury charge, contested issues, weight of the probative evidence, arguments of counsel and other relevant information. Cornet, 417 S.W.3d. at 450; Almanza, 686 S.W.2d at 171. The harm evaluation is case-specific. Cornet, 417 S.W.3d at 451.

         Failure to instruct on a confession-and-avoidance defense is rarely harmless "because its omission leaves the jury without a vehicle by which to acquit a defendant who has admitted to all the elements of the offense." Cornet, 417 S.W.3d at 451. Self- defense and necessity are confession-and-avoidance defenses. Gamino v. State, 537 S.W.3d 507, 511 (Tex. Crim. App. 2017) (self-defense); Juarez v. State, 308 S.W.3d 398, 404 (Tex. Crim. App. 2010) (necessity).

         In Cornet, this Court found one of the rare cases in which the trial court's refusal to instruct on a confession-and-avoidance defense was harmless. The defendant was charged with three counts of aggravated sexual assault of a child alleged to have occurred on or about the same date. He was convicted of digital penetration of the female sexual organ and oral-anal contact with the child. 417 S.W.3d at 449. The defendant denied the oral-anal contact but sought to justify the digital penetration with the medical care defense. This Court reasoned that the trial court's refusal to instruct on that defense was harmless because it applied only to digital penetration, and it was "inconceivable" that the jury would have found the defendant guilty of the oral-anal contact but not guilty of the digital penetration if given the opportunity to apply the medical care defense. Id. at 452. Despite the lack of instruction, the prosecution urged rejection of the medical-care defense, so it appeared "that the jury considered and rejected appellant's claim that his contact with the complainant was for her medical care." Id. at 454. "It is clear that the jury believed the complainant and disbelieved [the defendant's] claims that he was only touching the complainant with his hand to provide medical care." Id. at 452.

         As we detail below, this case is distinct from Cornet because Appellant's proposed defenses applied to both his charges, but unlike Cornet's jury, Appellant's never heard mention of the defensive issues in any context and had no opportunity to consider them. This left Appellant with one path to an acquittal for burglary: consent to enter given by the co-owner. But that path was obstructed by the prosecution's explanations of and arguments about the meaning of consent and by the trial court's exclusion of corroborating testimony about the co-owner's consent. Because of the foregoing, the court of appeals' reasoning does not hold up to scrutiny. Consequently, unlike in Cornet, it is not inconceivable that a juror would have harbored a reasonable doubt about Appellant's guilt if given the opportunity to consider the defensive issues.

         We turn now to the record before us.

         The Record

         Evidence Before the Jury

         The complainant, David Watson, testified that Appellant was hiding in his master bedroom closet and ambushed him with a gunshot to the scrotum when he came home from work on February 14, 2013. Upon being shot, the complainant grabbed Appellant with one hand and the pistol with the other, jamming his fingers into the trigger "mechanism" to prevent Appellant from firing again. He rammed Appellant backwards into the closet, and then they struggled over the gun throughout the house. During the struggle the complainant managed to grab a hunting knife, and they struggled over that, too. Eventually, Appellant escaped the complainant's grasp and fired at him but missed. When Appellant retreated to a bedroom, the complainant left via the front door and ran a zigzag pattern to his neighbor's house while Appellant shot at him from the front porch, again missing him. The complainant and neighbors saw Appellant drive away.

         Appellant, on the other hand, claimed that he had been engaged in an affair with the complainant's wife, Sandra Watson, and entered the house that day at her request to feed her cats. The complainant arrived home unexpectedly, and Appellant could not open the back door or a window to exit undetected, so he hid in the closet. According to Appellant, the complainant knew that someone was in the closet and entered it brandishing a hunting knife. Appellant reached for the .380 pistol that was next to him on top of the gun safe. The complainant grabbed his hand, and Appellant pulled the trigger. He and the complainant then struggled throughout the house for control of the knife and the gun until Appellant dropped the knife, and the complainant twisted the .380 out of his hand. Appellant then pulled his .45 pistol from his pocket and shot back toward the complainant to get him to stop. The complainant exited the house through the front door. Still unable to open the back door, ...

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