59«H5 NO. PD-0594-15 ">D!

IN THE RIGINAL COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

EDWARD GUZMAN, APPEALS RfcCbii COUBT PETITIONER, COURT OF CRIMINAL 2^5 f>BG U V. AUG H 2015 C\erK THE STATE OF TEXAS, Ak>cA Acosta. RESPONDENT. Abe! Acosta, Cler PETITION IN CAUSE NO. CR-12-0006, FROM THE 22ND JUDICIAL DISTRICT COURT OF HAYS COUNTY, TEXAS, AND APPEAL NO. 03-13-00131-CR, IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS EDWARD GUZMAN'S PETITION FOR DISCRETIONARY REVIEW Edward Guzman # 1845822 Petitioner, Pro Se French M. Robertson Unit 12071 F.M. 3522 Abilene, Texas 79601 (325) 548-9035 TABLE OF CONTENTS; INDEX OF AUTHORITIES ii STATEMENT REGARDING ORAL ARGUMENT iv STATEMENT REGARDING LIBERAL SCRUTINY iv STATEMENT OF THE CASE iv PROCEDURAL HISTORY iv QUESTIONS PRESENTED FOR REVIEW 1 STATEMENT OF FACTS 1 ARGUMENT: QUESTION NO. 1 - Did the Court of Appeals err in finding that Petitioner's claims of Ineffective Assistance of Counsel were merely speculative and did not constitute a demonstration, founded in the record, that no reasonable trial strategy existed? ... 2 QUESTION NO. 2 - Did the Court of Appeals err in finding that the trial court did not abuse its discretion in allowing irrelevant and unfairly prejudicial extraneous offense evidence to be admitted during trial? 6 OJJESTION NO. 3 - Did the Court of Appeals err in finding that the erroneous self-defense jury instruction did not harm Petitioner? 7 QUESTION NO. 4 - Did the Court of Appeals err in finding that Petitioner did not properly preserve his complaint of the State's improper jury arguments, thereby precluding it from being raised on appeal? 9 PRAYER FOR RELIEF 11 UNSWORN DECLARATION 11 CERTIFICATE OF SERVICE 12 APPENDIX - Memorandum Opinion of Third Court of Appeals END l. INDEX OF AUTHORITIES; Cases; Federal; • Brown v. Allen, 344 U.S. 445 (1953) iv • Bushv. U.S., 823 F.2d 909 (5th Cir. 1987) iv • Griffin v. California, 380 U.S. 609 (1965) 10 • Haines v. Kerner, 404 U.S. 519-520 (1972). iv • Hinton v. Alabama, 134 S.Ct. 1081 (2014) 5 • Kiamelman v. Morrison, 477 U.S. 365 (1986) 5 • Kotteakos v. United States, 328 U.S. 750 (1946). 7,11 • Strickland v. Washington, 466 U.S. 668 (1984) 2,3,5 • Williams v. Taylor, 529 U.S. 362 (2000) 5 State; • Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985) 8,9 • Barrios v. State, 283 S.W.3d 348 (Tex.Crim.App. 2009) 8,9 • Bone v. State, 77 S.W.3d 828 (Tex.Crim.App. 2002) 2 • Brown v. State, 814 S.W.2d 477 (Tex.App. - Dallas 1991) 10 ) De La Paz v. State, 279 S.W.3d 336 (Tex.Crim.App. 2009) 6,7 • Jackson v. State, 973 S.W.2d 954 (Tex.Crim.App. 1998) 2 • King v. State, 953 S.W.2d 266 (Tex.Crim.App. 1997) 7,11 • Lopez v. State, 793 S.W.2d 738 (Tex.App. - Austin 1990) 10 • Mansfield v. State, 306 S.W.3d 773 (Tex.Crim.App. 2010 4,5 • Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App. 1990) 6 • Montoya v. State, 744 S.W.2d 15 (Tex.Crim.App. 1987) 10,11 • Morales v. State, 375 S.W.3d 1 (Tex.Crim.App. 2011) 8,9 • Palasota v. State, 460 S.W.2d 137 (Tex.Crim.App. 1970) 4 • Rankin v. State, 974 S.W.2d 707 (Tex.Crim.App. 1996) 6 • Scott v. State, 222 S.W.3d 820 (Tex.App. - Houston [14th Dist.] 2007) 3 • Thompson v. State, 9 S.W.3d 808 (Tex.Crim.App. 1999) 2 • Trevino v. State, 577 S.W.2d 242 (Tex.Crim.App. 1979) 4 • Walker v. State, 440 S.W.2d 653 (Tex.Crim.App. 1969) 3,4 • Wesbrookv. State, 29 S.W.3d 103 (Tex.Crim.App. 2000) ..10,11 li. Statutes and Rules; TEX. CODE CRIM. PROC. 36.19 8 37.07 § 4 10,11 TEX. PENAL CODE § 20.02 iv § 20.04 iv § 22.02 iv § 9.31(a) 8 TEX.R.APP.PROC. 44.2(b) 7 68.5 1 TEX.R.EVID. 401 6,7 402 6,7 403 6,7 404(b) 6,7 608 3 [This Space Intentionally Left Blank] in STATEMENT REGARDING ORAL ARGUMENT; The Petitioner is an inmate in the Texas Department of Criminal Justice and thus is not eligible to present any oral argument before the Court; if the Court grants Discretionary Review and recognizes any issue as needing oral argument, Petitioner requests the Court appoint counsel to represent him in such proceedings. STATEMENT REGARDING LIBERAL SCRUTINY: Petitioner is a layman of the law, unskilled and without experience in the drafting of legal papers; therefore, he is entitled to a review that comes under a less stringent standard than those formal proceedings submitted by artful and skilled practitioners of the law; and thus, his litigations should be construed liberally under Haines v. Kerner, 404 U.S. 519-520 (1972); Brown v. Allen, 344 U.S. 445, 502 (1953); Bushy. U.S., 823 F.2d 909, 910 (5th Cir. 1987). STATEMENT OF THE CASE; This is an appeal from the conviction of four felony offenses - Aggravated Kidnapping, Aggravated Assault with a Deadly Weapon, Aggravated Assault Causing Serious Bodily Injury, and Unlawful Restraint - all arising from the same criminal episode, under Texas Penal Code §§ 20.04, 22.02, 20.02. Petitioner was acquitted of an additional charge of Attempted Murder. The jury assessed punishment of conf- inemtne in the Texas Department of Crimnal Justice for 60 years for the kidnapping, 20 years and 60 years for the assaults, and 10 years for the unlawful restraint. PROCEDURAL HISTORY: On January 18, 2012, Petitioner was indicted for the felony offenses of Aggravated Kidnapping, Attempted Murder, Aggravated Assault with a Deadly Weapon, Aggravated Assault Causing Serious Bodily Injury, Unlawful Restratint, Theft of a Firearm, and Credit Card Abuse. Prior to trial, the State abandoned its allegation of theft of a firearm and credit card abuse. On February 11, 2013, a jury found Petitioner guilty of the offenses of Aggravated Kidnapping, Aggravated Assault with a Deadly Weapon, Aggravated Assault Causing Serious Bodily Injury, and Unlaw ful Restraint. The jury appropriately acquitted Petitioner of the offense of Atte mpted Murder. The above mentioned cause was tried under Cause No. CR-12-0006, in the 22nd Judicial District Court of Hays County, Texas. Petitioner timely filed Notice of Appeal on February 21, 2013, and a Motion For New Trial on March 4, 2013 iv. which was overruled by operation of law. Appeal was timely perfected in the Third Court of Appeals, at Austin, Texas, in Appeal No. 03-13-00131-CR. On May 13, 2015, said appeal was affirmed in an unpublished opinion (Guzman v. State, No. 03-13- 00131-CR, May 13, 2015)(not designed for publication). No Motion For Rehearing was filed. Petitioner filed a motion for extension of time in which to file Petition for Discretionary Review, which was granted on May 19, 2015, and the current dead line for such filing was extended to August 11, 2015. This petition is therefore timely filed. [This space intentionally left blank] v. QUESTIONS PRESENTED FOR REVIEW: 1. Did the Court of Appeals err in finding that Petitioner's claims of Ineffective Assistance of Counsel were merely speculative and did not constitute a demonstr ation, founded in the record, that no reasonable trial strategy existed ? 2. Did the Court of Appeals err in finding that the Trial Court did not abuse its discretion in allowing irrelevant and unfairly prejudicial extraneous offense evidence to be admitted during trial ? 3. Did the Court of Appeals err in finding that the erroneous self-defense jury instruction did not harm Petitioner ? 4. Did the Court of Appeals err in finding that Petitioner did not properly preser ve his complaint of the State's improper jury arguments, thereby precluding it from being raised on appeal ? STATEMENT OF FACTS: Due to the elaborate nature of the facts of this case, the facts relevant to the issues raised will be discussed in the argument section with the respective question presented for review. A statement of facts in both places would require Petitioner to exceed the page limit mandated by Rule 68.5 of the Texas Rules of Appellate Procedure. [This space intentionally left blank] 1. QUESTION ONE: [restated]: Did the Court of Appeals err in finding that Petitioner's claims of Ineffective Assistance of Counsel were merely speculative and did not constitute a demonstrat ion, founded in the record, that no reasonable trial strategy existed? Petitioner's trial attorney rendered ineffective assistance of counsel, in at least two ways: (1) When he failed to object to the testimony of the responding officer in this case, when he testified that victim was being truthful, Petitioner was untruthful in his statements to police, and Petitioner's girlfriend's testimo ny was rehearsed; and (2) When he failed to prove up Petitioner's eligibility for probation at trial. To prevail on a claim of ineffective assistance of counsel, Petitioner must show that (1) trial counsel's representation was deficient in that it fell below an objective standard of reasonableness; and (2) counsel's deficient performance prejudiced Petitioner so that there is a reasonable probability that the result of the proceeding would have been different, but for the deficient performance of counsel. Strickland v. Washington, 466 U.S. 668 (1984); Thompson v. State, 9 S.W. 3d 808, 812 (Tex.Crim.App. 1999). Petitioner must support his claims by a prepond erance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998). Often times, the record on direct appeal is insufficient to determine if a defendant received ineffective assistance of counsel; however, where there can be no reasoned trial strategy for counsel's choices, an Appellate Court may decide the issue on the record before it. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Thompson, 9 S.W.3d at 813, 816. Petitioner contends that there can be no "reasoned trial strategy" for his trial counsel's ineffectiveness, therefore the Court of Appeals should have found counsel ineffective on the record before it. A. Counsel's failure to object to testimony of the responding officer when he testified that the victim in this case was being truthful, Petitioner was not truthful in his statements to police, and Petitioner's girlfriend's testimony was rehearsed. Counsel allowed the responding officer, Officer Cumberland, to testify without objection, that the victim's (Danielle Gay) statements to law enforcement were truthful. (RR3:112). In fact, Cumberland testified that she had "been in the Note: "RR" denotes the Reporter's Record in this case, and will be cited with the volume number ":" page number. ^[2]. business for twelve years and everything that [Gay] said, I felt she was being honest and truthful." Next, Cumberland testified that she felt Petitioner's state ments to law enforcement were untruthful and Ofelia's (Petitioner's girlfriend) initial statement to police, in which she did not inculpate herself or Petitioner, seemed "rehearsed" as if she had just spoken to Petitioner. (RR3:73, 183). While Texas Rules of Evidence 608 permits a witness to testify to the gene ral reputation of a witness for truthfulness, if that witness has personal knowle dge of the witness's reputation for such, it does not allow one witness to testify that another witness is telling the truth or lying. TEX.R.EVID. 608; Scott v. State, 222 S.W.3d 820, 825-826 (Tex.App. - Houston [14th Dist.] 2007). There can be absolutely no trial strategy in allowing a patrol officer to testify that the victim is telling the truth and your client is lying in violation of the Texas Rules of Evidence; especially when the evidence against your client is largely the testimony of the alleged victim. Counsel's performance was undenia bly harmed by counsel's deficient performance because what more damaging evidence could there be in a case in which there are two sides to a story but the testimony of a law enforcement officer that one side is telling the truth and the other is not? In that situation, a jury could not help but be swayed by testimony of this nature. That is why testimony of this kind is inadmissible under the Rules of Evi dence, to prevent an unfair outcome of a defendant's trial. See TEX.R.EVID. 608; Scott, 222 S.W.3d at 825-826. Petitioner has established that his counsel's performance was deficient in this respect, and the outcome of his trial was affected by counsel's deficient performance. Strickland, 466 U.S. at 684. A reasonable probability exists that but for counsel's errors, the outcome of Petitioner's trial would have been different, and no possible trial strategy can excuse such a tremendous error. That being the case, the Court of Appeals erred in not reversing Petitioner's convictions on his substantial claim of ineffective assistance of counsel. B. Counsel's failure to prove up Petitioner's eligibility for probation at trial. Counsel provided ineffective assistance of counsel in failing to prove up Petitioner's eligibility for probation at trial. It has long been held that a jury may not recommend probation unless the sworn motion for probation is timely filed and the evidence shows that the defendant has never been convicted of a felony in this state or anyother state. Walker v. State, 440 S.W.2d 653, 659 (Tex.Crim.App. 1969). The mere filing of application for probation is insufficient to establish probation eligibility, and the trial court is not authorized to include a probati- 3. on instruction without supporting evidence. Palasota v. State, 460 S.W.2d 137, 140-141 (Tex.Crim.App. 1970). To prove probation eligibility, the defendant need not personally take the witness stand and testify that he has never been convicted of a felony offense. Trevino v. State, 577 S.W.2d 242, 243 (Tex.Crim.App. 1979). Instead, he may obtain such evidence from others who sufficiently know him. Id. For example, a family member, employer, or close friend can testify as to a defen dant's probation eligibility and this is sufficient to show probation eligibility. Mansfield v. State, 306 S.W.3d 773 (Tex.Crim.App. 2010). At the punishment phase of trial, Defense Counsel announced that he was resting Petitioner's case without calling any witnesses. (RR7:60). The State poin ted out to the Court that without calling any witnesses, Petitioner would be waiv ing his right to have the jury consider probation as his punishment because he had not called a witness to testify that he was eligible for probation. (RR7:60-63). Defense Counsel incorrectly argued that a live witness was not necessary because he had filed sworn application for probation, and that the application alone was enough for the jury to consider probation as a punishment option. (RR7: 60-63). The Court explained to Defense Counsel that the law requires that he prod uce evidence of Petitioner's probation eligibility and that simply filing an appl ication was not sufficient. (RR7:60-63). Noting a potential "Sixth Amendment prob lem," the Court suggested re-opening the evidence so that Counsel could call a witness to testify to Petitioner's probation eligibility. (RR7:60-63). Defense Counsel asked if he could call Petitioner to testify only to his probation eligib ility, and not subject him to cross-examination on any other issues. (RR7:60-63). The Court explained that if Petitioner testified he would be subject to "wide-open" cross-examination. (RR7:60-63). Counsel then made the decision to close the evide nce without calling a witness to testify about Petitioner's probation eligibility. (RR7:64). In defendaning his decision, Defense Counsel stated, "I was under the impression his sworn affidavit was sufficient to take the issue to the jury. They still have to determine whether or not they believe, based on the information, that he's eligible." (RR7:65). Defense Counsel then attempted to limit his exposu re to a claim of ineffective assistance of counsel by calling Petitioner to testi fy outside the presence of the jury that he did not want to testify. (RR7:65-67). Quite simply, Defense Counsel was not prepared to present evidence of Peti tioner's probation eligibility because he did not know he was required to do so despite the fact that that has been the law since at least 1969. See Walker v. State, 440 S.W.2d 653, 659 (Tex.Crim.App. 1969). Counsel then tried to remedy his 4. ignorance of the law by having his client unknowingly waive counsel's Constitutio nal ineffectiveness. However, Petitioner was not the only witness who could have testified to Petitioner's probation eligibility. As discussed above, a family mem ber, employer, or close friend can testify to a defendant's probation eligibility and this is sufficient to show that the defendant is, in fact, eligible for proba tion. Mansfield v. State, 306 S.W.3d 773 (Tex.Crim.App. 2010). There can be no trial strategy in depriving your client of the possibility of probation. In fact, the record in this case shows that counsel's conduct was not based on trial strat egy, but rather, on his ignorance of the law. Because Defense Counsel was not pre pared to prove up Petitioner's eligibility for probation, counsel's performance was deficient. Strickland, 466 U.S. at 684. The U.S. Supreme Court has recently upheld that Counsel's ignorance of the law does not excuse his errors. See Hinton v. Alabama, 134 S.Ct. 1081 (2014). An attorney's ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is quintessential example of unreasonableness under Strickland. See, e.g., Williams v. Taylor, 529 U.S. 362 (2000); and Kinrnekian v. Morrison, 477 U.S. 365 (1986). Petitioner was harmed by counsel's deficient performance because he waived any chance Petitioner had of receiving probation for punishment. While the State may continue to argue, and the Court of Appeals relied on, the sentence Petitioner received indicates that the jury would not have considered probation, one must remember that the State improperly argued that "60 doesn't mean 60," and that Pet itioner would receive good time, parole, and "credit after credit." (RR7:90-91). The State unfairly influenced the jury to assess a harsher punishment after Petit ioner's own attorney prevented the possibility of probation. Further, counsel rai sed the floor of what the jury could consider on the range of punishment from pro bation to five years in prison on at least two of Petitioner's sentences, indicat ing that Petitioner's sentence should be harsher than what he was originally expo sed to. Therefore, Petitioner was harmed by his counsel's deficient performance. Strickland, 466 U.S. at 684. Petitioner has met both prongs of the Strickland test in showing by a prep onderance of the evidence that his counsel's deficient performance affected the outcome of his trial. Strickland, 466 U.S. at 684. This claim of ineffective assi stance of counsel is blatant in the record, therefore the Court of Appeals erred in finding that Petitioner's claims were merely speculative and did not constitute a demonstration, founded in the record, that no reasonable trial strategy existed. 5. • QUESTION TWO: [restated]: Did the Court of Appeals err in finding that the Trial Court did not abuse its discretion in allowing irrelevant and unfairly prejudicial extraneous offense evi dence to be admitted during trial? Petitioner contends that the trial court abused its discretion in admitting evidence of alleged prior extraneous offenses. Specifically, the Court improperly allowed Gay (the alleged victim) to testify to Petitioner's alleged bad character in violation of Texas Rules of Evidence 404(b). The complained-of testimony was also irrelevant and unfairly prejudicial. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. TEX.R.EVID. 404(b). However, it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. TEX.R.EVID. 404(b). The rule excludes evidence that is offered for purpose of proving bad character and hence conduct in conformity with that bad character. De La Paz v. State, 279 S.W.3d 336, 343 (Tex.Crim.App. 2009), citing Rankin v. State, 974 S.W.2d 707, 709 (Tex.Crim.App. 1996). A trial court's ruling on the admissibility of extraneous offense evidence is reviewed under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." TEX.R.EVID. 401; Montgomery, 810 S.W.2d at 386. "Evidence which is not relevant is inadmissible." TEX.R.EVID. 402. Texas Rule of Evidence 403 states: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, conf usion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. TEX.R.EVID. 403. Gay first testified to an attack which allegedly occurred on January 1, 2010, in which Petitioner pushed her down in their home, grabbed her ponytail, and punched her in the face. (RR4:242-243). Petitioner objected to this testimony when it was offered. Gay claimed that she suffered two black eyes and a bloody nose. (RR4:243-244). Gay acknowledged that she never reported this alleged assault to law enforcement. (RR4:245). 6. Gay next testified to an assault which allegedly occurred on January 3, 2011, in which Petitioner came home after a night out and began screaming at Gay. (RR4:246). Gay claimed that Petitioner woke her up and told her to leave. (RR4: 247). Gay continued that Petitioner pushed her out of the house. (RR4:249). Gay testified that she was forced to leave with the clothes on her back and was not allowed home for at least a month. (RR4:254). Finally, Gay testified to an incid ent which allegedly occurred in February or March of 2011, in which Petitioner pulled a gun on her when she went to his home to retrieve her belongings. (RR4: 257-258). Gay claimed that Petitioner told her to leave and that she called the police. (Rr4:259). Gay was allowed to testify further that she obtained a protec tive order against Petitioner. (RR4:259). None of this "evidence" showed knowledge, intent, preparation, plan, moti ve, etc., and is, therefore, specifically excluded from Texas Rule of Evidence 404(b). All of this "evidence" was inadmissible because it did nothing more than-'' attempt to prove bad character and conduct in conformity with that bad character. De La Paz, 279 S.W.3d at 343. In addition, this "evidence" was irrelevant^ahd unfairly prejudicial because it did not tend to prove or disprove an element of the offense and only served to inflame the jury. TEX.R.EVID. 401, 402, 403. Petitioner was harmed by the erroneous admission of this^f'evidence" becau- se his substantial rights, including his right to a fair trial, were affected by the trial court's ruling. TEX.R.APP. 44.2(b). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997), citing Kotteakos v. United States, 328 U.S. 750, 776 (1946). Clearly, the admiss ion of Gay's testimony regarding extraneous offenses affected the jury's verdict because it unfairly painted Petitioner as a violent, vengeful person in violation of the Rules of Evidence. See King, 953 S.W.2d at 271. The trial court clearly abused its discretion in allowing the above menti- : oned irrelevant and unfairly prejudicial extraneous offense evidence to be admit ted during Petitioner's trial. The Court of Appeals finding otherwise was err, and Petitioner's conviction should have been reversed on thjr.S: point of error. QUESTION THREE: [restated]: Did the Court of Appeals err in finding that the erroneous self-defense jury inst ruction did not harm Petitioner? In the Court of Appeals* analysis of Petitioner's claim of an improper self 7. defense jury instruction, the Court found that the instruction was error. However, the Court went on to erroneously find that said instruction did not harm Petition er. Petitioner asserts that he was harmed by such an instruction, and said error should have elicited a reversal of his conviction from the Court of Appeals. The trial court improperly instructed the jury that Petitioner had a duty to retreat in order for the law of self-defense to apply. This instruction was clearly erroneous and Petitioner was harmed by the instruction. A claim of jury-charge error is reviewed under the procedure set out by the Honorable Court of Criminal Appeals in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.App. 1985); Barrios v. State, 283 S.W.3d 348 (Tex.Crim.App. 2009). Pursuant to the Court's analysis of Article 36.19 of the Texas Code of Criminal Procedure, if there is error in the jury charge and appellant objected to the error at trial, reversal is required if the error "is calculated to injure the rights .of the defe ndant," which has been defined to mean that there is "some harm." Id., citing Almanza, 686 S.W.2d at 171. If the error was not objected to, it must be "fundame ntal" and requires reversal only if the defendant has suffered egregious harm such that the defendant "has not had a fair and impartial trial." Id., citing Almanza, 686 S.W.2d at 171. During the charge conference, Petitioner requested the following instructi on, which is verbatim from the Texas Self-Defense statute: Upon the law of self-defense, you are instructed that a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. (RR5:120-121); See TEX.PENAL CODE § 9.31(a). In charging the jury on the law of Self-Defense, the Court instructed the jury that Self-Defense applied if Petitionee's conduct was "immediately necessary to protect the Defendant from Danielle Gay's use or attempted use of unlawful for ce; and that at such time a reasonable person in the Defendant's situation would not have retreated." (CR:40-42). Petitioner clearly objected as follows: "Judge, this talks about the duty of a defendant to retreat. That's no where in the statu te." (RR5:121). The trial court overruled Petitioner's objection. (RR5:121-122). In Morales v. State, this Honorable Court instructed that: Before 2007, the deadly-force self-defense statute contained a prov ision imposing a general duty to retreat. At that time, a jury inst ruction regarding a general duty to retreat was appropriate. But the statute no longer contains the language regarding a general duty to 8. retreat. In situations where the Legislature has not specifically negated a duty to retreat, the prosecutor can argue the failure to retreat as a relevant factor in determining the defendant's mental state and the reasonableness of his conduct, but the jury cannot be instructed regarding retreat because such an instruction would be a comment on the weight of the evidence. Morales v. State, 375 S.W.3d 1, 6 (Tex.Crim.App. 2011). In Morales, the Court found that the trial court erred in including an ins truction which required the jury to determine "whether a reasonable person would not have retreated." Id. at 6. The Court determined that the trial court's instru ction was an impermissible comment on the weight of the evidence and reversed the Court of Appeals' opinion finding otherwise. Id. The exact erroneous charge used in Morales was used in this case. Id. (CR: 40-42). Therefore, the trial court impermissibly comnented on the weight of the evidence and that error is reversible. Id. The Court of Appeals properly found that the improper jury charge was in fact error, but they somehow determined that it was harmless to Petitioner. Because Petitioner properly objected to this erroneous charge, he is only required to show "some harm." Almanza, 686 S.W.2d at 171; Barrios, 283 S.W.3d at 348. Petitioner suffered some harm because the trial court's instruction required him to show he should not have retreated when he had no duty to do so. This added requirement prevented the jury from properly considering Petitioner's defense of Self-Defense. In fact, it prevented the jury from considering self-defense at all based on the facts of the present case. Accordingly, Petitioner's conviction shou ld have been reversed on this point of error. The Court of Appeals blatantly erred in finding this to be harmless error, to the Petitioner. QUESTION FOUR: [restated]: Did the Court of Appeals err in finding that Petitioner: did not properly preserve his complaint of the State's improper jury arguments, thereby precluding it from being raised on appeal? During closing arguments at the punishment phase of trial, the prosecutor engaged in improper jury argument. Specifically, the prosecutor agrued that Petit ioner had not presented a case or any mitigating evidence and incorrectly advised the jury that Petitioner would earn sentence credits, would earn good conduct time, and would be paroled. There are four proper areas of jury argument: (1) summation of the evidence, 9. (2) reasonable deductions drawn from the evidence, (3) answer to opposing counsel's argument, and (4) plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000), cert, denied, 532 U.S. 944 (2001). During the punishment phase of trial, the State argued that Petitioner had not presented a case and had not presented any evidence to mitigate his punishment. (RR7:91). Defense counsel properly objected to the State's argument. (RR7:90-91). It is well-settled, basic, and fundamental law that the failure of an accu sed to testify may not be the subject of comment by the prosecution. Montoya v. State, 744 S.W.2d 15, 34 (Tex.Crim.App. 1987), cert, denied, 487 U.S. 1227 (1988). Comment of this nature is a violation of the privilege against sef1-incrimination contained in Article I, § 10, of the Texas Constitution and the Fifth Amendment of the United States Constitution made applicable to the states by the Fourteenth Amendment. Id. at 34; Griffin v. California, 380 U.S. 609, 611 (1965); Lopez v. State, 793 S.W.2d 738, 741 (Tex.App. - Austin 1990). A violation of this kind res ults in fundamental error. See Brown v. State, 814 S.W.2d 477, 479-480 (Tex.App. - Dallas 1991). Fundamental error requires reversal when the defendant's punishment is affected by the State's jury argument. Montoya, 744 S.W.2d at 38. In this case, Petitioner's punishment was necessarily affected by the State's argument because the jury was told that because Petitioner did not present a case or any mitigation evidence, there was no reason not to assess a high sente nce. Petitioner found himself in the exact position the Constitution prohibits: that of a defendant who is unable to respond to the State's argument and preserve his Fifth Amendment rights. Having suffered fundamental error, which negatively affected his punishment, Petitioner is entitled to a new punishment hearing. Montoya, 744 S.W.2d at 38. Next, the State argued the following: So life doesn't mean life. 60 doesn't mean 60. You heard he got - he'll get credit for his;:back time. He'll get good conduct time. He'll get parole. He*11 get credit after credit from everyone. He doesn't need anymore credit from you guys. (RR7:90-91). Whether a defendant receives good conduct time or parole is entirely specu lative. TEX.CODE CRIM.PR0C. Art. 37.07 § 4. It cannot be determined whether or not a defendant will, in fact, receive good conduct or be paroled because that determ ination is left entirely to the discretion of the parole authorities. By arguing to the jury that Petitioner would receive good conduct time and would be paroled, 10. the State unfairly influenced the jury into assessing a harsher punishment than it otherwise would have assessed. Petitioner was harmed by the State's jury argument because his substantial rights, including his right to a fair trial, were affected by the trial court's ruling. TEX.R.APP.P. 44.2(b). "A substantial right is affected vfaen the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997), citing Kotteakos v. United States, 328 U.S. 750, 776 (1946). Undoubtedly, the State's argument affect ed the jury's verdict because the State led the jury to believe that it needed to assess a harsher punishment to insure Petitioner would serve a substantial portion of the punishment assessed. See TEX.CODE CRIM.PROC. Art. 37.07 § 4; King, 953 S.W.2d at 271. The State's jury argument was improper and harmful. See Wesbrook, 29 S.W.3d at 115; Montoya, 744 S.W.2d at 38; TEX.CODE CRIM.PROC. Art. 37.07 § 4; King, 953 S.W.2d at 271. Therefore, Petitioner's convictions should have been reversed on this point of error. For the Court of Appeals to find otherwise was err. PRAYER: For the reasons stated above, Petitioner asserts that the Court of Appeals erred in not reversing his convictions. Petitioner prays this Honorable Court will GRANT discretionary review and find that the Court of Appeals erred. Petitioner further prays that the judgment of conviction in this case be reversed and remand ed for a new trial. In the alternative, Petitioner prays that the Court grant him a new punishment phase, in which he will not be subjected to a jury biased by the State. Petitioner prays for any other relief he may be entitled to. I, Edward Guzman, TDCJ # 1845822, being presently incarcerated in the Fren ch M. Robertson Unit of the Texas Department of Criminal Justice, in Jones County, Texas; do hereby verify and declare under penalty of perjury that ALL statements and other references made within this PETITION are both true and correct, as well affered in good faith. [Tex.Civ.Prac.& Rem.Code §132.0(^1-003 et seq./Title 28 U.S.C. § 1746] (A signed/dated copy of this PETHICM shall hswe the sane validity as its original) SIGNED AND EXECUTED on this the 8th day of August, 2015. RESPECTFULLY SUBMITTED, /a/ Petitioner, Pro Se Edward Guzman # 1845822 11. CERTIFICATE OF SERVICE: The above signer hereby certifies that a true and correct copy of the foreg oing PETITION FOR DISCRETIONARY REVIEW has been forwarded to ALL parties, via 1st Class U.S. Mail, Postage Pre-Paid, placed in the outgoing prison mailbox on this the 8th day of August, 2015; addressed to: • Abel Acosta, Clerk Court of Criminal Appeals P.O. Box 12308 Austin, Texas 78711 • Sherri tibbe Hays County District Attorney 712 South Stagecoach Trail San Marcos, Texas 78666 • State Prosecuting Attorney P.O. Box 12405 Austin, Texas 78711 EG/awr-File 12. APPENDIX: Memorandum Opinion of Third Court of Appeals Issued May 13, 2015 No. 03-13-00131-CR (30 Pages) TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-13-00131-CR Edward Guzman, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT NO. CR-12-0006, THE HONORABLE JACK H. ROBISON, JUDGE PRESIDING MEMORANDUM OPINION A jury convicted appellant Edward Guzman of four felony offenses—aggravated kidnapping, aggravated assault with a deadly weapon, aggravated assault causing serious bodily injury, and unlawful restraint—all arising out of an encounter between appellant and his former girlfriend.^[1] See Tex. Penal Code §§ 20.04, 22.02, 20.02. The jury assessed his punishment at confinement in the Texas Department of Criminal Justice for 60 years for the kidnapping, 20 years and 60 years for the assaults, and 10 years for the unlawful restraint. See id. §§ 12.32-34. On appeal, appellant complains about ineffective assistance of counsel, the admission of extraneous conduct evidence, error in the jury charge, and improperjury argument. Finding no reversible error, we affirm the trial court's judgments of conviction.

that no competent attorney would have engaged in it." See Menefield, 363 S.W.3d at 592; see also Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012) ("The mere fact that another attorney might have pursued adifferent tactic at trial does not suffice to prove aclaim ofineffective assistance ofcounsel"). Accordingly, we conclude that appellant has failed to demonstrate deficient performance on the part ofhis trial counsel. SeeFrangias v. State, 450 S.W.3d 125,136 (Tex. Crim. App. 2013) ("[UTjnless there is arecord sufficient to demonstrate that counsel's conduct was not the product of an informed strategic or tactical decision, areviewing court should presume that trial counsel's performance was constitutionally adequate 'unless the challenged conduct was so However, thisassertion is a speculative claim withoutsupport in therecord. Moreover, we observe thatthedetective'sopinions werenotparticularly powerful. Giventhefact that she secured an arrest warrant for appellant and forwarded this case to the district attorney's office for prosecution after her investigation, one could logically assume that the detective found Gay credible and her allegations truthful, and that she believed appellant was not truthful in his version of the events.

Appellant also maintains that he was harmed by counsel's failure to prove his eligibility for community supervision because he "waived any chance appellant had at receiving

[community supervision] for punishment." However, in order to be eligible for community supervision, the jury would have had to return sentences often years orless. See Tex. Code Crim.

Proc. art. 42.12, § 4(a), (d)(1). The juryonly did soin theunlawful restraint case, and in that case

the ten-year sentence was the maximum. The other sentences returned bythe jury—60 years for the first degree aggravated kidnapping, 60 years for the first degree aggravated assault causing serious

bodily injury, and 20 years for the second degree aggravated assault with adeadly weapon (also the maximum for that offense)—indicate that the jury was seeking to impose harsh sentences for

appellant's conduct.^[4] Nothing in the record suggests that the jury was inclined to return the more lenient punishment ofcommunity supervision evenhad such an option been available.5 Appellant's suggestion that the purported waiver ofcommunity supervision subjected him to harsher sentences than he was originally exposed to is a speculative claim not supported by the record. An accused is not entitled to entirely errorless representation, and we look to the

totality of the representation in gauging the adequacy of counsel's performance. Frangias, 450 S.W.3d at 136. The record in this case reveals that trial counsel ably and adequately presented the defense strategy, which involved attacking the credibility of Gay's version of events, emphasizing the biased and incomplete nature ofthe police investigation, and raising self-defense. During guilt-innocence, counsel focused on the bias ofthe State's witnesses, the inconsistencies in the testimony, the inadequate and one-sided police investigation, and the lack of corroborating evidence. Also, through the State's evidence, he asserted a claim of self-defense. During punishment, counsel focused on the mitigating factor of appellant's age and asked for aminimal sentence often years in all four cases. The fact that these strategies ultimately proved unsuccessful does not render counsel's assistance ineffective.

On the record before us, appellant has failed to demonstrate deficient performance on the part ofhis trial counsel or that he suffered prejudice because ofthe alleged errors ofcounsel. Thus, he has not shown himself entitled to reversal based on ineffective assistance of counsel. We overrule appellant's first and fifth points of error.

Extraneous Conduct Evidence

In its case-in-chief in the guilt-innocence phase oftrial, the State offered evidence during Gay's testimony of appellant's extraneous abusive conduct toward her during their relationship. She detailed three instances ofappellant's abusive conduct: aphysical altercation on New Year's Eve of 2010, an incident on appellant's birthday on January 3, 2011, and an occasion

in February or March of2011 where appellant pointed agun at her.6 In his second point oferror, appellant asserts that the trial court erred in permitting this testimony because it was inadmissible character-conformity evidence.

We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Sandoval v. State, 409 S.W.3d 259, 297 (Tex. App.—Austin 2013, no pet.). Atrial court abuses its discretion only if its determination "lies outside the zone ofreasonable disagreement." Martinez, 327 S.W.3d at736;

Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). Atrial court's decision to admit evidence ofan extraneous offense is generally within this zone if the evidence shows that (1) an

6More specifically, Gay testified that during an altercation in their home on New Year'sEve appellant threatened her (by making aslashing motion across his neck), pushed her, punched her in the face at least three times, grabbed her by the back ofher neck and ponytail, and threw her down on the floor. She stated that as a result ofthis incident, she had two black eyes and a bloody and swollen nose. Regarding the birthday incident, Gay testified that when appellant returned from celebrating his birthdaywith friends, he came home angry and began screaming ather, demanding that she leave. When she went to the bedroom to collect her things, he kicked open the bedroom door and hit her in the middle ofher body, knocking her backwards. Then, when she tried to get her daughter to leave, appellant took the child from her and took the child into the bedroom. He then forcibly removed Gay from their home by grabbing her at theback of her neck and around the waist and dragging her out of the house. Gay was without any of her things and ended up moving in with appellant's aunt next door. According to Gay's testimony, amonth or two later, appellantindicated in amessage through his aunt that Gay could return to their home to collect her belongings. When she was inside the house, appellant became agitated when she began asking about the location ofcertainpersonal items (such as her driver's license and social security card) and told her to get out. When she reminded appellant that he had told her she could come get her things, he stomped off to the bedroom and returned with a gun. He pointed the gun directly at her and repeated his demand that she leave their home.

extraneous transaction is relevant to a material, non-propensity issue, and (2) the probative valueof that evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading ofthe jury. DeLa Pazv. State, 279 S.W.3d 336,344 (Tex. Crim. App. 2009). Ifthe trial court's evidentiary ruling iscorrect on any theory oflaw applicable to that ruling, we will uphold that decision. Id.; Sandoval, 409 S.W.3d at 297.

Texas Rule ofEvidence 404(b) prohibits the admission ofextraneous conduct (other

crimes, wrongs, or acts) to prove aperson's character or to show that the person acted in conformity with that character. See Tex. R. Evid. 404(b). However, extraneous conduct evidence may be

admissible when ithas relevance apart from character conformity. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). Extraneous conduct may be admissible for some other purpose, such as to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence ofmistake oraccident. See Tex. R. Evid. 404(b); Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex. Crim.

App. 1991) (op. on reh'g). This list is illustrative—the exceptions are neither mutually exclusive nor collectively exhaustive. See De La Paz, 279 S.W.3d at 343. Extraneous conduct evidence may also be admissible to rebut defensive theories raised bythe defense. See Williams, 301 S.W.3d at

687 (rebuttal of defensive theory is "one of the permissible purposes for which [relevant] evidence may be admitted under Rule 404(b)"). Further, "'Rule 404(b) is arule of inclusion rather than exclusion.'" DeLa Paz, 279 S.W.3d at 343 (quoting United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000)). "The rule excludes only that evidence that is offered (or will be used) solely for the purpose ofproving bad character and hence conduct in conformity with that bad character." Id. (emphasis added) (citing Rankin v. State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996)).

• >

Throughout the course of trial, appellant advanced several defensive theories—he denied causing Gay's injuries, he challenged Gay's version of the events, he attacked the police investigation, and he asserted self-defense—all premised on his claim that he acted that night to protect himselffrom Gay when she fired shots athim. He first made this claim during his phone call to the detective the morning afterthe incident whenGaywas in the hospital (a recording of which was admitted into evidence andpublished to thejury). He thenmade similar comments during his interview withthe detective laterthatday(arecording ofwhichwasalso admitted into evidence and published to the jury). Appellant's counsel alluded to it during jury selection when questioning the venire panel about contradictory testimony and theuse ofself-defense in any setting, even within a close personal relationship. He developed it through cross-examination of the State's witnesses, particularly the police detective, when he highlighted the fact that she took no actions to investigate appellant's claims regarding Gay's alleged threats toward him and Ofelia and when he sought the detective's confirmation thatappellant's comments to herreflected that he acted in self-defense. TheStateoffered theevidence ofappellant'sextraneous abusive conduct toward Gay, in part, to rebut appellant's theory that she was the first aggressor and that he acted in self-defense as well as to rebut appellant's explanation that Gay's injuries were self-inflicted during their struggle over the gun. Based on the evidence before it,the trial court could have concluded that the evidence of appellant's extraneous prior abusive conduct toward Gay rebutted the defensive theories presented to the jury. Consequently, we cannot say that the trial court's admission of the complained-oftestimony was an abuse ofdiscretion. We overrule appellant's second point oferror.

Jury Charge Error In this case, on appellant's request, the trial court included an instruction on self-defense in the court's jury charge. In the abstractportion of the court's charge, the trial court instructed the jury as follows:

Upon the law ofselfdefense [sic] you are instructed that a person isjustified in using force against another when and to the degree he reasonably believes the force isimmediately necessary toprotect himselfagainst the other'suseorattempted use of unlawful force. A person is justified in using force against another: (1) if he would be justified in using force against the other; and (2) if a reasonable person in the defendant's situation would not have retreated; and (3) when and to the degree he reasonably believes the force is immediately necessary toprotect himselfagainst the other's use or attempted use of unlawful force. "Reasonable belief' means a belief that would be held by an ordinary and prudent personin the same circumstances as the defendant.

During the charge conference, appellant requested an additional instruction to explain self-defense.^[7] The State objected, maintaining that the instruction was already reflected inthe charge. Appellant next complained that the self-defense jury instruction "talk[ed] about the duty of a defendant to

retreat. That's nowhere in thestatute." Both theprosecutor andthe trial court maintained thatthe duty to retreat "[is] in the law." The court overruled appellant's request for his submission and retained the language relating to the duty to retreat in the charge. In his third point oferror, appellant argues that the trial court erroneously instructed the jury that appellant had a duty to retreat in order for the law of self-defense to apply. He further maintains that the incorrect instruction on self-defense caused him harm.

We review alleged jury charge error in two steps: first, we determine whether error exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal.

Kirschv. State,357 S.W.3d645,649 (Tex. Crim. App. 2012);Ngo v. State, 175 S.W.3d738,743-44

(Tex. Crim. App. 2005). The trial court must charge the jury on the "law applicable to the case," which requires that the jury be instructed on each element of the offense charged. See Tex. Code

Crim. Proc. art. 36.14; see alsoDinkins v. State, 894 S.W.2d 330,339 (Tex. Crim. App. 1995). The trial court is also required to instruct the jury on statutory defenses, affirmative defenses, and justifications when they are raised by the evidence and requested by the defendant. Walters v. State, 247 S.W.3d 204, 208-09 (Tex. Crim. App. 2007).

Under the Texas self-defense statute, a person may use deadly force ifhe reasonably

believes such force is immediately necessary to protect himself from another person's use or attempted use of deadly force. See Tex. Penal Code § 9.32. Before 2007, the deadly-force self-defense statute contained a provision imposing a general duty to retreat, providing that the use of deadly force was justified only "if a reasonable person in the actor's situation would not have

retreated." See Act of May 16, 1995, 74th Leg., R.S., ch. 235, § 1, 1995 Tex. Gen. Laws 2141, 2141-42 (amended 2007) (current version at Tex. Penal Code § 9.32); Morales v. State, 357 S.W.3d 1, 6 (Tex. Crim. App. 2011). However, effective September 1, 2007, the Legislature ' >

amended the statute to delete the language regarding a general duty to retreat. Morales, 357 S.W.3d at 4-5; McBride v. State, 359 S.W.3d 683, 694 (Tex. App.—Houston [14th Dist.] 2011, pet. refd). Because this general duty to retreat was removed from the self-defense statute in 2007, the self-defenseinstruction given here—indicating that appellant had a duty to retreat—was erroneous. See Morales, 357 S.W.3d at 6. Ifthe trialjudge charges on a defensive issue but fails to do so correctly, this is charge errorsubjectto reviewunderAlmanza. Vegav. State, 394 S.W.3d514,519 (Tex.Crim.App. 2013); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g) (setting forth analysis for determining whetherjury charge error requires reversal). UnderAlmanza, if the jury charge error has been properlypreservedby an objection or request for instruction, as in this case, reversal is required if the appellant has suffered "some harm" from the error. Vega, 394 S.W.3d at 519;Almanza, 686 S.W.2d at 171. We assess whether the appellant has suffered actualharm "in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Vega, 394 S.W.3d at 521 (quoting Almanza, 686 S.W.2d at 171). We engage in this assessment to illuminate the actual, not just theoretical, harm to the accused. Almanza, 686 S.W.2d at 174; see Cornet v. State, All S.W.3d 446, 449 (Tex. Crim. App. 2013) ("This means that the trial record must demonstrate that there is some actual harm and not just a theoretical complaint."). Beginning with the jury charge itself, we observe that in addition to erroneously instructing the jury in the abstract portion of the charge that a person was justified in using force against another only ifareasonable person in the defendant's situation would not have retreated, the trial court included the duty to retreat in each ofthe self-defense application paragraphs.8 Thus, the jury charge, in four different places—the abstract portion of the charge and three self-defense application paragraphs—impermissibly instructed thejury to determine whether there was ageneral duty to retreat. See Morales, 357 S.W.3d at 5-6 (jury instruction on general duty to retreat constituted comment on weight ofevidence). Nothing in the remainder ofthe charge instructed the jury that it should not determine, as ageneral matter, whether aduty to retreat existed. See id. at 6. Accordingly, the remainder of the jury charge did not alleviate the harm caused by the incorrect self-defense instruction. Thus, consideration ofthe entirety ofthe jury charge weighs in favor ofa finding of harm.

Next, we must consider the state ofthe evidence and determine whether the jury charge error related to acontested issue. Appellant did not testify at trial. The defensive theories spresented through the State's evidence—primarily the recording ofappellant's interview with werei

8After the application paragraph for the attempted murder, the courtprovided the following application paragraph for self-defense: Selfdefense [sic] Now, if you find and believe from the evidence that on the occasion in question the Defendant reasonably believed thathis conductofgrabbing and twisting Danielle Gay's head at the neck was immediately necessary to protect the Defendant from Danielle Gay's use or attempted use ofunlawful force; and that at such time a reasonable person in the Defendant's situation would not have retreated, you will acquit the defendant and say by your verdict not guilty as to Count II. Similar application paragraphs applying self-defense were given following the application paragraphs for aggravated assault with adeadly weapon and aggravated assault causing senous bodily injury.

the detective—and the cross examination of the State's witnesses. During his interview with the detective, appellant gave his version ofthe events. He indicated that when he and Ofelia picked up his daughter that evening for his visitation, Gay askedhim to staybut he declined and went home with Ofelia and his daughter. According to appellant, Gay then showedup at his house in Kyle at

about4:00 in the morning. She knocked on his window and said that if he wantedto gethis stuff, he needed to come and get it now. When he told Gay that he did not have anygas in his car, she offered to buythe gas to fill his car. Appellant saidthat they thenwent to the gas station andfilled up the cars with gas—he and Gay inhercar, Ofelia and his daughter inhis car.^[9] After filling up, they went to Gay's house. When he realized it was going to take time to sort outwhat things he could take, he sentOfelia home, telling herthatGaywould just drop himoff. Appellant toldthedetective that eventually he gottired of waiting for Gay to decide what he could take, so he told Gay tojust

take him home. He said that when they were in her car, she pulled her gun out of her pocket and threatened to kill him and Ofelia. According to appellant, theystruggled over the gunand fell out ofhercarduring the struggle. Hesaid that hehad his arms wrapped around Gay from behind when she fired the gun multiple times. Appellant told the detective that hegot away from Gay and called

Ofelia to come pick him up. He showed the detective aninjury he had onhis thumb where either the hammer of the gun pinched him or the flash from the gunshot burnedhim.

While giving his version of the events, appellant said that he was "fighting for his life" and was "just trying to get away from [Gay]." However, he adamantly maintained that he did not cause her injuries. He repeatedly denied ever hitting or kicking Gay. In fact, even as he conceded that Gay "might have" been hurt during the struggle over the gun, he still insisted he

"never hit her."10 Further, when the detective showed appellant photographs of Gay's injuries and asked if he could explain them, he said that they were probably self-inflicted. When the detective directly asked appellant if he "did this" (caused the injuries depicted in the photographs), he

responded, "No." When the detective admonished appellant that he needed to be honest and expressed her opinion thatmorehappened thanhe was telling her, appellant insisted thathe "didn't do anything" to Gay.

There was but the barest scintilla of evidence that during his encounter with Gay, appellant was "fighting for [his] life" and thus may have unintentionally injured Gay during his attempts to protect himself from her. However, appellant's primary defense was that he did not causeGay's injuries at all,thattheywereself-inflicted, andthat theevents hadnot transpired as Gay claimed. The secondary defense was that if she was injured duringthe struggle, it was not his fault because he was acting in self-defense. The self-defense theory applied only to three of the five charges, and it was a marginal theory at best. A comparison of the photographs ofGay'sextensive injuries and appellant's minimal injuries demonstrates the unlikelihood that Gay's injuries were

self-inflicted andrefutes appellant's repeated claim thathe "didn't doanything" to Gay. Under the circumstances, we cannot conclude that, given the weak evidence of self-defense combined with appellant's adamant denial that he caused Gay's injuries, the state ofthe evidence demonstrates that t •*• K

the trial court's erroneous instructions on the general duty to retreat caused appellant harm. Thus, afterreviewingthe evidence in the record,we concludethat the state of the evidence weighsagainst a finding of harm. Concerning jury argument, boththe State andappellant's counsel brieflymentioned self-defense inclosing arguments. However, neither side emphasized theerroneous juryinstruction orappellant's purported duty toretreat butinstead only referred generally to the concept ofwhether appellant's conduct wasjustified because hewasacting in self-defense. The prosecutor argued that as the aggressor, appellant did notact in self-defense." Appellant's trial counsel reminded the jury that appellant told the detective in the interview that he "had to fight for his life." Also during his argument, appellant's counsel referred the juryto the court's self-defense instruction inthe charge.^[12] However, he did not emphasize the erroneous portion regarding the general duty to retreat but C ««. » j.

referred to the fact that it was "immediately necessary" for appellant to react as he did to protect himself from Gay. Overall, in the context of the entire jury argument, neither side focused on self-defense andneither side argued that appellant had a dutyto retreat. Thus,we conclude that the arguments of counsel do not weigh in favor of a finding of harm. Finally, with regard to the final factor, we consider the fact that appellant was not actually entitled to a jury instruction on self-defense in this case to be relevant information in evaluating harm. A defendant is entitled to a self-defense instruction if the issue is raised by the evidence, regardless ofwhether that evidence is weak orstrong, unimpeached orcontradicted, and regardless of what the trial court may think about the credibility of the witnesses or the viability of the defense. Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008); Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001). However, because self-defense is justification for one's actions, the assertion of thedefense necessarily requires anadmission thatthealleged conduct occurred. Anderson v. State, 11 S.W.3d 369,372 (Tex. App.—Houston [IstDist.] 2000, pet.refd); seeShaw v. State, 243 S.W.3d 647,659 (Tex. Crim. App. 2007) ("[A] defensive instruction is only appropriate when the defendant's defensive evidence essentially admits to every element of the offense including the culpable mental state, but interposes the justification to excuse the otherwise criminal conduct."). Assertion of self-defense is inconsistent with a denial of the conduct. Ford v. State, 112 S.W.3d 788,794 (Tex. App.—Houston [14th Dist.] 2003, nopet.). Thus, a defendant is not entitled to an instruction on self-defense if "he claims that he did not perform the assaultive acts alleged, or that he did not have the requisite culpable mental state, or both." VanBrackle v. State, 179 S.W.3d 708, 715 (Tex. App.—Austin 2005, no pet.) (citing Ex parte Nailor, 149 S.W.3d 125, 134 (Tex. Crim. App. 2004)).

In this case, although appellant admitted that he struggled with Gay for the gun, he didnot admitthathe committed the assaultive conductalleged.^[13] Appellantrepeatedly deniedever

hitting or kicking Gay, adamantly maintained that he did not cause her injuries, asserted that the injuries were self-inflicted by Gay, and suggestedthat the injuries were caused by other objects (such as the mailboxes) during their struggle over the gun. Thus, because appellant did not admit to committing the alleged conduct, he was not entitled to an instruction on self-defense. See Maxwell v. State,No. 03-06-00473-CR, 2007 WL 2274883, at *2 (Tex. App.—Austin Aug. 6,2007, no pet.)

(mem. op., not designated for publication) ("A defendant must sufficiently admit to the commission of the offense for which the defensive instruction is requested."). We conclude that the fact that appellant was not entitled to a self-defensejury instruction under these circumstances weighs against a finding of harm.

In sum, except for the jury charge itself, the factors discussed above militate against a finding ofharm. Accordingly, after reviewing the record and considering the relevant factors, we A. va; K _> ..(*. M -> - •*v. «4 > »*l «<!* **»•<•.» EDWARD GUZMAN # 1845822 FRENCH M. ROBERTSON UNITES 12071, F.M. 3522 ABILENE, TEXA —PM PM- -PM AUG ll AUG 11 § jllSSSSERSss&g I 2015 'AUG 11 SK»:*KasS!S2ffS BSTffi I 2015 ;fdte»w-.--«w 9'*S*91«:' i ,«mr".r "r'"T33H!WSS«""-ttf.r - »'"«i~ ,«,„ *KWHra«(WBBK»^^ :^:r^*^^%^d^£^^^^ ABEL ACOSTA, CLERK TEXAS COURT OF CRIMINAL APPEALS P.O. BOX 12308 CAPITOL STATION AUSTIN, TEXAS 78711