APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE
THIRTEENTH COURT OF APPEALS REFUGIO COUNTY
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.
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.
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).
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.
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.
now to the record before us.
Before the Jury
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
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, ...