IN THE COURT OF CRIMINAL APPEALS

OF TEXAS



NO. 1195-00

 

ANTHONY RANDOLPH FERREL, Appellant


v.


THE STATE OF TEXAS




ON THE STATE'S PETITION FOR DISCRETIONARY

REVIEW FROM THE FOURTEENTH COURT OF APPEALS

HARRIS COUNTY


Holcomb, J., delivered the following opinion, in which Price and Johnson, JJ., joined.



CONCURRING OPINION

 

The majority holds that the Fourteenth Court of Appeals erred in holding that appellant, Anthony Randolph Ferrel, was entitled to a jury instruction on non-deadly force self-defense under Texas Penal Code 9.31(a). I disagree.

A defendant in a criminal prosecution has the right to a jury instruction on any defensive issue that is raised by the evidence. Granger v. State, 3 S.W.3d 36, 38 (Tex.Crim.App. 1999). A defensive issue is "raised by the evidence" if there is sufficient evidence to permit a reasonable jury to find in the defendant's favor on the issue. Mathews v. United States, 485 U.S. 58, 63 (1988); 23A C.J.S. Criminal Law 1315 (1989).

At the guilt/innocence stage of appellant's trial, the State presented evidence that on August 26, 1996, appellant assaulted William Patrick McManus in a pool hall in Harris County. Appellant took the stand in rebuttal, however, and testified that he struck McManus only after it appeared to him that McManus was about to attack him. According to appellant, he and McManus had an unpleasant exchange of words and then McManus, who was "really angry," "came at" him. Appellant testified further that he was unable to retreat and that he struck McManus only "to get him away." Appellant denied any intent to harm McManus.

In addition, there was evidence that McManus was highly intoxicated at the time of the incident; that he was "really close to [appellant], being [bending?] over him" at the time of the incident; and that he was much larger than appellant. There was also expert medical testimony that as a direct consequence of being struck by the bottle, McManus suffered three minor lacerations to his lips, one fractured tooth, and six loose teeth; that the loose teeth would eventually "firm up"; and that the blow by the beer bottle was "in the wrong place to generate a significant head injury." (1)

Given this evidence, a reasonable jury could have found (1) that the blow by the beer bottle did not directly cause "serious bodily injury" to McManus, as that term is defined by statute (2); (2) that appellant in fact used non-deadly force against McManus; and (3) that appellant was justified in doing so because he reasonably believed the force was immediately necessary to protect himself against McManus' use of unlawful force. (3) Thus, the trial court erred in not giving a non-deadly force self-defense instruction to the jury. However, the trial court's error was harmless, because the jury would not have found in appellant's favor even if the trial court had given the instruction. The record reflects that the jury found that appellant used a deadly weapon (the beer bottle) in his assault on McManus. See Tex. Pen. Code 1.07(a)(17)(B). (4) In other words, the jury, after hearing and considering all of the evidence, found, in effect, that appellant used deadly force against McManus. See Tex. Penal Code 9.01(3). (5) Therefore, the jury would not have found for appellant on the issue of non-deadly force self-defense even if it had had that option.

With these comments, I join the judgment, but not the opinion, of the Court.



DELIVERED SEPTEMBER 12, 2001

PUBLISH

1. The majority makes much of the fact that appellant's medical expert witness, Dr. Robert C. Bux, testified that the lacerations to McManus' lips would constitute "serious bodily injury" if they caused scarring. Dr. Bux was never given the statutory definition of "serious bodily injury," however, so his testimony would not have prevented a reasonable jury from finding that the blow by the beer bottle did not directly cause serious bodily injury to McManus.

2. Texas Penal Code 1.07(a)(46) defines "serious bodily injury" as "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or any protracted loss or impairment of the function of any bodily member or organ."

3. The court of appeals did not hold that appellant was entitled to a deadly-force self-defense instruction under Texas Penal Code 9.32(a), so I do not reach that question.

4. Texas Penal Code 1.07(a)(17)(B) defines "deadly weapon" as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury."

5. Texas Penal Code 9.01(3) defines "deadly force" as "force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury."