Full Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-24-00654-CR Randall Jackson, III, Appellant v. The State of Texas, Appellee FROM THE 27TH DISTRICT COURT OF BELL COUNTY NO. 78084, THE HONORABLE JOHN GAUNTT, JUDGE PRESIDING MEMORANDUM OPINION A jury found Randall Jackson, III, guilty of aggravated assault against a public servant. See Tex. Penal Code § 22.02(b)(2)(B). The trial court found an enhancement allegation true and assessed punishment at twenty-five years in prison. Appellant contends that the trial court erred by failing to instruct the jury on self-defense. See Tex. Penal Code § 9.31 (a), (c). We will affirm the judgment. BACKGROUND Police in Temple received a report that a black man with a knife had threatened people at a shelter then walked toward the Salvation Army. Temple Police Department (TPD) Officer Koneferenisi Aumua responded in his patrol car and saw Appellant, who matched at least three of four descriptors given in the dispatch. Aumua testified that as he drove by the Salvation Army Appellant looked “right at [him] and [his] patrol vehicle and then started running.” Finding this behavior suspicious, Aumua made a U-turn to follow Appellant. He next saw Appellant apparently trying to break in the door of a duplex. Aumua stopped his car and chased Appellant on foot. Aumua said he yelled at Appellant to stop but Appellant ignored him. TPD Officer Milton Parker joined the foot chase and was closer to Appellant than Aumua. Parker and Aumua were both in uniform. A third officer, Travis Wolfe, also responded and joined the chase as it proceeded down an alley; Wolfe was wearing a bulletproof vest over plain clothes. Parker testified that, because Appellant reportedly had a knife and began reaching for something, Parker radioed that Appellant was “reaching.” Parker said he kept some distance to avoid being stabbed and used his taser instead of tackling Appellant. The taser either missed or was ineffective. Appellant turned from what Parker testified was about fifteen to twenty feet and fired a shot that Parker said was “in my face” and that Wolfe testified went “right past my head.” Wolfe testified that he felt his life was in danger and prepared to shoot Appellant but Aumua got in the way. Aumua and Parker returned fire. Appellant then barricaded himself inside an unoccupied house, and a SWAT team responded. Wolfe took a position with a sniper rifle and watched Appellant as others negotiated with Appellant. Wolfe testified that he did not shoot Appellant because there was no ongoing threat and police were trying to save his life. Several hours later, Appellant surrendered and was arrested. Appellant was taken to a hospital for treatment for teargas inhalation. His mother and TPD Detective Justin McCormick rode with him in the ambulance. McCormick’s body camera video from the ambulance ride showed that Appellant told his mother he ran because he wanted to avoid a violent confrontation with police. He did not know why police were chasing him. He asked, “What am I to do?” after seeing one officer pull a taser and another officer pull a gun. He said the only thing he could do was lift his shirt up, pull his gun out, take the safety off, 2 “put one in,” and fire the weapon. He also said he ran so he could get rid of “his stuff”— marijuana and a handgun—without the police seeing him dispose of those items. He said he did not pose a threat to the officers because he was running away. Appellant said he feared that police would eventually swarm the house and kill him. TPD Detective Ashley Cunningham testified that she believed that Appellant was not the person who was originally reported as threatening people at the food shelter with a knife. APPLICABLE LAW 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. Bluntson v. State, 728 S.W.3d 87, 142 (Tex. Crim. App. 2025); Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Because Appellant’s complaint about jury-charge error was preserved in the trial court, “reversal is required if there was some harm to the defendant.” Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016). “A defendant is entitled to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or uncontradicted, and regardless of how the trial court views the credibility of the defense.” Celis v. State, 416 S.W.3d 419, 430 (Tex. Crim. App. 2013) (citing Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008)). A defendant “‘bears the burden of production’ with respect to a defense,” Shaw v. State, 243 S.W.3d 647, 657 (Tex. Crim. App. 2007) (quoting Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003)), and “[t]he issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense,” Kuhn v. State, 393 S.W.3d 519, 532 (Tex. App.—Austin 2013, pet. ref’d) (quoting Tex. Penal Code § 2.03(c)); see Walters v. State, 3 247 S.W.3d 204, 208–09 (Tex. Crim. App. 2007) (discussing when defendant is entitled to jury instruction on defensive issue); Shaw, 243 S.W.3d at 657 (describing “burden of production” as “burden of making a prima facie case”). “[A] defense is supported (or raised) by the evidence if there is some evidence, from any source, on each element of the defense that, if believed by the jury, would support a rational inference that that element is true.” Shaw, 243 S.W.3d at 657–58; see Juarez v. State, 308 S.W.3d 398, 404 (Tex. Crim. App. 2010) (“The defendant bears the burden of showing that each element of the defense has been satisfied.”). The court views the evidence in the light most favorable to the defendant’s requested jury instruction, Jordan v. State, 593 S.W.3d 340, 343 (Tex. Crim. App. 2020), and must rely “on its own judgment, formed in the light of its own common sense and experience, as to the limits of rational inference from the facts proven,” Shaw, 243 S.W.3d at 658. If the evidence fails to raise every element of a defensive issue, the trial court may refuse to grant an instruction requested by the defendant. See Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993); Morganfield v. State, 696 S.W.3d 194, 197 (Tex. App.—San Antonio 2024, no pet.); Stefanoff v. State, 78 S.W.3d 496, 500 (Tex. App.—Austin 2002, pet. ref’d). Entitlement to a self-defense instruction relies on evidence that the user reasonably believed such force was necessary. Generally, “a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.” Id. § 9.31(a). Merely fleeing an officer is not force directed against an officer that constitutes resisting arrest. See Leos v. State, 880 S.W.2d 180, 184 (Tex. App.—Corpus Christi–Edinburg 1994, no pet.). In the context of resisting an arrest that an actor “knows is being made by a peace 4 officer” even if the arrest is “unlawful,” Tex. Penal Code § 9.31(b)(2), the resistor’s use of force is not justified unless: (1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and (2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s (or other person’s) use or attempted use of greater force than necessary. Id. § 9.31(c); Lopez v. State, 600 S.W.3d 43, 45 (Tex. Crim. App. 2020) (discussing court’s construction of statute’s “plain meaning” and explaining that if reasonably possible court construes “each word, phrase, clause, and sentence” in context and “according to the rules of grammar and common usage”); Lang v. State, 561 S.W.3d 174, 179–80 (Tex. Crim. App. 2018) (explaining that courts ordinarily give effect to plain meaning when interpreting statutes). Appellant’s use of deadly force requires additional proof. “A person is justified in using deadly force against another: (1) if the actor would be justified in using force against the other under Section 9.31 [of the Texas Penal Code] and (2) when and to the degree the actor reasonably believes the deadly force is immediately necessary: (A) to protect the actor against the other’s use or attempted use of unlawful deadly force . . . .” Tex. Penal Code § 9.32(a). A peace officer is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to make or assist in the making of an arrest. Id. § 9.51(a). A threat to use deadly force by production of a weapon is not the use of deadly force so long as the actor’s purpose was limited to creating an apprehension that he will use deadly force if necessary. Id. § 9.04. 5 DISCUSSION By his sole issue on appeal, Appellant complains of the trial court’s refusal to instruct the jury on self-defense. He contends that, before he resisted a peace officer’s effort to detain him, the peace officer used or attempted to use greater force than necessary to make the arrest. He contends that he believed his resistance and the force of his resistance were immediately necessary to protect himself against the peace officer’s use or attempted use of greater force than necessary, including deadly force. He contends that his belief was reasonable and that there was some evidence of his state of mind from his statements to his mother in the ambulance. Appellant was entitled to a self-defense instruction only if evidence justified his undisputed use of deadly force against the officers. The undisputed evidence establishes that the officers leading the chase were in uniform, that the third officer (Wolfe) pulled his gun only after Appellant fired, and that Appellant’s use of force against Officer Parker was the deadly force of a bullet fired at them. To justify this force, Appellant was required to show that the officers used or attempted to use unlawful deadly force against him first. See Tex. Penal Code § 9.32(a). The record contains no such evidence. The record shows that the officers were asked to look for a man who had threatened people with a knife. Aumua saw Appellant, who matched three of four descriptors and fled on foot after seeing Aumua. Aumua and others chased Appellant on foot, Parker ineffectively used a taser, and Aumua pulled his handgun before Appellant fired at them. The chase itself was not a use of greater force than necessary or the use or attempted use of unlawful deadly force. “‘Deadly force’ means 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.” Id. § 9.01. The chase occurred in the city of Temple in public areas, 6 walkways, and an alley. It began when Appellant moved away from Aumua, and there is no indication that Appellant was endangered by the act of running. There is no evidence that the chase in this case constituted greater force than necessary or unlawful deadly force or the attempted use thereof. There is no evidence that the taser was greater force than necessary or the use or attempted use of deadly force. While a taser can be used to cause serious bodily injury or death, 1 here, there is no evidence that the taser caused any physical effect whatsoever on Appellant. There is no evidence that the use of the taser in this case was the use of greater force than necessary or the use or attempted use of unlawful deadly force. See Navarro v. State, 649 S.W.3d 603, 621 n.2 (Tex. App.—Houston [1st Dist.] 2022) (noting that tasing was no evidence of excessive force when defendant who disobeyed officer’s commands and resisted handcuffing could not testify how often he was tased except “more than once”), aff'd on other grounds, 726 S.W.3d 436 (Tex. Crim. App. 2025). Further, Aumua’s pulling out of his handgun was not evidence of the use of greater force than necessary or the use or attempted use of unlawful deadly force. Consistent with the statutory provision that a threat to cause death or serious bodily injury by the production of a weapon does not ordinarily constitute the use of deadly force, so long as the intent is limited to creating an apprehension that force will be used only if necessary, see Tex. Penal Code § 9.04, the First District Court of Appeals has held, “One may not assume that the threatened use of force by a peace officer will become more than a threat or that the use of such force will be 1 See Moody v. State, No. 01-03-00685-CR, 2004 WL 1472216, at *3 n.1 (Tex. App.— Houston [1st Dist.] July 1, 2004, no pet.) (mem. op., not designated for publication) (noting testimony that “under the proper circumstances, a stun gun can cause death, broken bones, pulled tendons, blindness, or seizures”). 7 greater than necessary to effect an arrest.” Porteous v. State, 259 S.W.3d 741, 748 (Tex. App.— Houston [1st Dist.] 2007), pet. dism’d improvidently granted, 253 S.W.3d 288 (Tex. Crim. App. 2008). In Porteous, an officer approached the defendant’s car, identified himself as a police officer, and instructed the defendant to show his hands. Id. at 748. When the defendant did not respond, the officer pulled out his firearm in a “low ready position.” Id. The defendant shot the officer three times. Id. Though the defendant told a witness that he feared the officer was going to shoot him, he presented no evidence that the officer used greater force than necessary to arrest him. Id. The court of appeals affirmed the trial court’s refusal to instruct the jury on self -defense to the offense of attempted capital murder of a police officer and aggravated assault. Id. Here, there is no evidence that Aumua or any other officer aimed or otherwise attempted to use his firearm against Appellant before Appellant fired at them. See Tex. Penal Code § 9.31(c)(1) (providing that use of force to resist is justified “if, before the actor offers any resistance, the peace officer . . . uses or attempts to use greater force than necessary” (emphasis added)); Navarro v. State, 726 S.W.3d 436, 455 (Tex. Crim. App. 2025) (“limited right to resistance” under Section 9.31(c) is denied “if the person being arrested resisted first”). There is no evidence that the police used greater force than necessary against Appellant. Appellant said in the ambulance that he feared that police would eventually swarm the house and kill him, but that describes his fear of their conduct after he shot at the officers. His fears after using deadly force against the officers are not evidence to justify his previous use of deadly force against them. Appellant argues on appeal that he responded to “police violence with his own only after he was targeted by a TASER. A reasonable inference may be made that [Appellant] not only feared being tased again but also anticipated a higher likelihood of being shot by 8 pursuers wielding guns.” But the reasonableness of Appellant’s state of mind prompting him to use deadly force against the officers matters only if police used greater force than necessary first —here, a use or attempted use of unlawful deadly force against him. See id. §§ 9.31(c)(1), 9.32(a)(2)(A). And, as held in Porteous, Appellant was not entitled to presume that the mere threatened use of force will transform into something more for purposes of the self-defense instruction. See 259 S.W.3d at 748. Even when viewed most favorably to Appellant, there is no evidence that the officers used or attempted to use greater force than necessary on him before he fired his gun at Officer Parker. Because there is no evidence of an essential element of his defense, Appellant was not entitled to an instruction on the justification of his use of deadly force in self-defense in resisting an arrest or search. See Tex. Penal Code §§ 9.31(c), 9.32(a); Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993). The trial court did not err by denying the requested instruction. CONCLUSION We overrule Appellant’s issue and affirm the judgment. __________________________________________ Darlene Byrne, Chief Justice Before Chief Justice Byrne, Justices Kelly and Ellis Affirmed Filed: October 9, 2026 9