Keasler, J., delivered the opinion of the Court, in which McCormick, P.J., Meyers,
Mansfield, Keller, and Holland, J.J., joined. Keller, J., delivered a concurring opinion,
in which Mansfield and Holland, J.J., joined. Womack, J., delivered a dissenting
opinion. Johnson, J., delivered a dissenting opinion, in which Price, J., joined.
Ervin Dickey's defense at trial was that he was attacked by multiple assailants. The trial court did not charge the jury on this defense. Today we must decide whetherthe trial court's failure to give Dickey's requested instruction on multiple assailants was harmless error. We conclude that it was.
In response to a page from Zerick Marvis, Dickey and Carlton Brown went to Marvis's apartment. After answering the door, Marvis went back inside the apartment and returned wearing a bullet proof vest. When Marvis came back outside, the three men began arguing. Marvis claimed Brown owed him money. Dickey heard Marvis cock the hammer of a gun. Dickey claimed in his confession that he thought Marvis and Brown were "about to turn on" him:
They started looking at each other and I felt they were about to turn on me.
[Marvis] had a pistol in his pants pocket and he had his hand on the gun. I
heard him cock the hammer back. [Brown] started to go for his gun that he had
in his front waist band. I thought they were going to team up on me so I pulled
my Glock .40 from my waist and fired at [Brown]. After that [Marvis] started
shooting at [Brown] who was on the ground. I was surprised because I
expected him to shoot at me.
Marvis then pointed his gun at Dickey and pulled the trigger, but the gun did not fire. After Marvis and Dickey struggled over Dickey's gun, Dickey got away. The physical evidence revealed that Brown was shot a total of ten times with two different weapons.
The trial court instructed the jury on the law of self-defense. In the application paragraph, the charge specified that if the jury found that it reasonably appeared to Dickey that he was in danger "from the words or conduct or both of Carlton Brown," then it should acquit Dickey on the grounds of self-defense. Dickey's requested multiple assailants charge said that the jury should acquit if it found that it reasonably appeared to Dickey that he was in danger "from the words or conduct or both of [Brown] or other persons with him." The trial court refused to give that instruction.
The jury convicted Dickey of murder and sentenced him to 60 years in prison.
The Court of Appeals reversed the conviction, holding that the trial court erred in failing to give the multiple assailants charge and that Dickey was harmed.(1) We granted the State's petition for discretionary review only on ground two: whether Dickey was harmed by the denial of this instruction.
Since Dickey objected to the lack of the instruction at trial, he is entitled to a reversal if he can show some harm.(2) It is Dickey's burden to prove that he suffered some actual, rather than merely theoretical, harm from the error.(3) Nevertheless, the presence of any harm, regardless of degree, is sufficient to require a reversal of the conviction.(4)
The Court of Appeals concluded that Dickey suffered some harm because the charge, though "extensive and quite detailed, . . . was based on Brown being the only assailant. It did not cover the situation that allegedly occurred here, namely, that [Dickey] believed Brown and Marvis were going to attack him, Marvis reached for his gun, and [Dickey] shot Brown."(5) Under the Court of Appeals' reasoning, every single case of multiple assailants in which the trial court failed to give the proper instruction would result in harm. We disagree that the mere fact that the charge did not cover the situation in which Marvis was the attacker is enough to constitute harm to Dickey.
The evidence in this case was less than clear. According to Dickey, he was afraid that Marvis and Brown were teaming up on him. But there is absolutely nothing in the actions of either Marvis or Brown which would indicate their collusion. Indeed, Dickey admits that he is the one that brought Brown to Marvis's home, and that Marvis was angry that Brown owed him money. Dickey states that Brown and Marvis were looking at each other, not at him. Since the only defensive evidence was Dickey's statement, there is no explanation as to why Dickey would think the other two were teaming up on him. Further, there were no witnesses to the offense to confirm Dickey's fear. This is not a case in which the evidence was clear that there were multiple assailants and the jury was unable to give effect to that evidence. Rather, the evidence reflects that Dickey and Marvis were teaming up on Brown.
Given the ambiguity of the evidence, we conclude that Dickey has failed to meet his burden of proving he suffered some actual harm by the trial court's failure to give the multiple assailants charge.
We reverse the decision of the court of appeals and affirm the trial court's judgment.
DATE DELIVERED: December 15, 1999
1. Dickey v. State, 979 S.W.2d 825 (Tex. App. -- Houston [14th Dist.] 1998).
2. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g).
3. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986).
4. Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994), citing Arline, supra.
5. Dickey v. State, 979 S.W.2d at 828.