Full Opinion (html_with_citations)

Affirmed as Modified and Memorandum Opinion filed December 18, 2014.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-13-01088-CR

                        RUFUS LEE GILDER, Appellant

                                          V.
                       THE STATE OF TEXAS, Appellee

             On Appeal from County Criminal Court at Law No. 2
                           Harris County, Texas
                       Trial Court Cause No. 1829432

                  MEMORANDUM                       OPINION


      Appellant Rufus Lee Gilder appeals his conviction for assault challenging
the trial court’s jury instruction on self-defense and the amount of court costs
assessed in the judgment. Finding the trial court’s instruction sufficient, but finding
the amount of court costs assessed in the judgment differs from the amount listed
in the bill of costs, we modify the trial court’s judgment to reflect court costs of
$332, and affirm the judgment as modified.
                                     I. BACKGROUND

       The complainant, Blackmon Powell, testified that on the date of the offense
he went to the fish market to pick up food, which has been his routine for
approximately fifteen years. Powell, a truck driver, had previously worked for
appellant. While waiting for his food, Powell saw appellant at the fish market and
they had a conversation about truck driving that Powell described as “shop talk.”

       Approximately fifteen minutes later Powell’s food was ready and he left the
fish market. Appellant followed Powell to his vehicle. Powell described his
conversation with appellant as follows: “Yeah, I think he said something about my
truck was raggedy and I didn’t have anything. And I told him, you don’t have
anything, either. I say, I heard that house that you were living in up there in
Atascocita wasn’t yours, you were leasing the house.” Powell placed his food in
the car and got into the driver’s seat. Appellant said to Powell: “You don’t have
nothing either. Said, Look at that slick tire on this van.” After making that
statement, appellant hit Powell in the face, breaking his nose. Powell stepped out
of the van and asked appellant what he was doing. Appellant responded by running
toward Powell and smashing him against the side of Powell’s van.

       Appellant’s mother came out of the fish market and told appellant to stop.
Rather than stop, appellant hit Powell in the face again. Appellant walked to his
pickup truck and retrieved a stick, which Powell described as a walking cane.
Appellant hit Powell in the head with the cane, said “This is for Ms. Brenda,” and
“If you say another word I’ll kill you.”1 Powell did not fight back, but attempted to
hold appellant in a “bear hug” hoping he would stop. After threatening to kill
Powell, appellant walked back to his truck, placed the cane in the back, and drove

       1
           At the time of trial Powell was in the midst of a divorce from Brenda Devaughn, who
later testified for appellant.

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away.

        Powell used his mobile phone to call 911. Appellant’s mother asked who
Powell was calling. When Powell told her he was calling the police, she responded,
“You can call if you want to. . . . I’m going to tell them that you hit him first.”

        Juan Garcia, one of the responding officers, testified that when he arrived he
took a statement from Powell and attempted to talk with appellant’s mother.
Appellant’s mother was uncooperative. There were no other witnesses in the area.
An investigator followed up with appellant’s mother who told him that Powell hit
appellant first. The investigator was unable to locate any other witnesses to the
assault.

        Martie Brooks-Gilder, appellant’s mother, works part-time as a cook at the
fish market. She testified that Powell came into the fish market cursing and
taunting appellant. When Brooks-Gilder heard Powell say he was “going to fuck
him up,” she walked out of the kitchen to see what was happening. Brooks-Gilder
testified that Powell hit appellant before appellant hit Powell, and the two men “got
into a tussle.” She admitted she might not have seen the beginning of the fight
because she had to ask someone to watch the fish that she had been cooking.
Brooks-Gilder said she did not see appellant get a stick out of his truck and hit
appellant with it. Two other witnesses testified that Powell was the aggressor.

        At the conclusion of guilt-innocence there were no objections to the court’s
charge. The record reflects that appellant did not request a self-defense charge, but
the trial court gave the self-defense charge sua sponte. The jury found appellant
guilty of assault and the court assessed appellant’s punishment at confinement for
100 days in the Harris County Jail.




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                                    II. ANALYSIS

      A. There was no error in the trial court’s jury charge.

      In his first issue, appellant argues that the trial court erred in submitting a
jury charge that failed to instruct the jury that the State carried the burden of
disproving self-defense, and failed to specifically instruct the jury to acquit if they
held a reasonable doubt on self-defense. The State responds that the charge
properly instructed the jury on its burden and instructed the jury to find appellant
not guilty if it held a reasonable doubt on self-defense. We conclude that no error
existed in the jury charge.

      1. Standard of review

      We review a claim of jury charge error using the two-step procedure set out
in Almanza v. State,
686 S.W.2d 157, 171
 (Tex. Crim. App. 1985). See Barrios v.
State,
283 S.W.3d 348, 350
 (Tex. Crim. App. 2009). We first determine whether
there is error in the charge. Barrios,
283 S.W.3d at 350
 (citing Ngo v. State,
175 S.W.3d 738, 743
 (Tex. Crim. App. 2005)). Then, if error is found, we analyze that
error for harm. Celis v. State,
416 S.W.3d 419, 423
 (Tex. Crim. App. 2013) (citing
Kirsch v. State,
357 S.W.3d 645, 649
 (Tex. Crim. App. 2012)).

      2. The trial court’s jury charge

      The court’s charge instructed the jury:

      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 person’s use or attempted use of unlawful
      force. A person is under no obligation to retreat to avoid the necessity
      of repelling or defending, with force less than deadly force, against an
      attack or threatened attack.



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                                      *****
      Therefore, if you find and believe from the evidence beyond a
      reasonable doubt that on the occasion in question the defendant,
      RUFUS LEE GILDER, did assault BLACKMON POWELL, BY
      STRIKING HIM WITH HIS HAND, as alleged, but you further find
      from the evidence, or you have a reasonable doubt thereof, that
      viewed from the standpoint of the defendant at the time, from the
      words or conduct, or both, it reasonably appeared to the defendant that
      his person was in danger of bodily injury and there was created in his
      mind a reasonable expectation or fear of bodily injury from the use of
      unlawful force at the hands of BLACKMON POWELL and that
      acting under such apprehension and reasonably believing that the use
      of force on his part was immediately necessary to protect himself
      against BLACKMON POWELL’S use or attempted use of unlawful
      force, the defendant STRUCK BLACKMON POWELL WITH HIS
      HAND, to defend himself,
      OR
      if you have a reasonable doubt as to whether or not the defendant was
      acting in self-defense on said occasion and under the circumstances,
      then you should give the defendant the benefit of that doubt and say
      by your verdict not guilty.

      3. The charge properly instructed the jury on the State’s burden of
proof.
      Appellant argues that the self-defense instruction failed to instruct the jury
that the State carried the burden of proving appellant did not act in self-defense.
Appellant argues that the charge could be understood to mean that appellant bore
the burden of proving self-defense beyond a reasonable doubt.

      A defendant bears the burden of producing some evidence in support of a
claim of self-defense. Zuliani v. State,
97 S.W.3d 589, 594
 (Tex. Crim. App.
2003); Saxton v. State,
804 S.W.2d 910, 913
 (Tex. Crim. App. 1991). Once the
defendant produces such evidence, the State bears the burden of persuasion to
disprove the raised defense. Zuliani,
97 S.W.3d at 594
; Saxton, 804 S.W.2d at
913–14. The burden of persuasion is not one that requires the production of
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evidence; rather, it requires only that the State prove its case beyond a reasonable
doubt. Zuliani,
97 S.W.3d at 594
; Saxton,
804 S.W.2d at 913
.

      Self-defense is a defense under section 2.03 of the Texas Penal Code. See
Tex. Penal Code § 2.03; Saxton,
804 S.W.2d at 912
 n. 5. “If the issue of the
existence of a defense is submitted to the jury, the court shall charge that a
reasonable doubt on the issue requires that the defendant be acquitted.” Tex. Penal
Code § 2.03(d). In examining the charge for possible error, reviewing courts must
examine the charge as a whole instead of a series of isolated and unrelated
statements. Vasquez v. State,
389 S.W.3d 361, 366
 (Tex. Crim. App. 2012).

      The abstract portion of the charge properly instructed the jury that, “The
prosecution has the burden of proving the defendant guilty and it must do so by
proving each and every element of the offense charged beyond a reasonable doubt
and if it fails to do so, you must acquit the defendant.” Additionally, the
application portion of the charge properly instructed the jury to find appellant not
guilty if there was a reasonable doubt as to whether appellant was acting in self-
defense. Specifically, the court instructed the jury, “if you have a reasonable doubt
as to whether or not the defendant was acting in self-defense on said occasion and
under the circumstances, then you should give the defendant the benefit of that
doubt and say by your verdict not guilty.”

      Read as a whole, the jury charge properly placed the burden of proof on the
State in the abstract portion, and instructed the jury in the application portion to
acquit the defendant if the State did not meet that burden. The trial court did not
commit error in the charge with regard to the State’s burden of proof. See Luck v.
State,
588 S.W.2d 371, 375
 (Tex. Crim. App. 1979) (viewing the charge as a
whole, charge placed the burden on the State to show beyond a reasonable doubt
that appellant was not acting in self-defense).

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      4. The charge properly instructed the jury to acquit if they held a
reasonable doubt regarding appellant’s use of self-defense.
       Appellant argues that the charge failed to instruct the jury that if it has a
reasonable doubt on the issue of self-defense the defendant must be acquitted.
Specifically, appellant argues the “‘then you will acquit the defendant’ language
was omitted between the words ‘to defend himself,’ at the end of the first
paragraph and before the word ‘OR.’”

       A review of the court’s charge shows that, read logically, the paragraph
following the word “OR” is a continuation of the sentence preceding the word
“OR.” While the preceding sentence is lengthy, read logically, a jury could
understand that the phrase, “say by your verdict not guilty,” applies to the
instructions before and after the word “OR.”

       Appellant cites Barrera v. State,
982 S.W.2d 415, 416
 (Tex. Crim. App.
1998), for the proposition that it is error for the trial court to fail to instruct the jury
to acquit appellant if it found in favor of the self-defense charge. In Barrera, the
trial court included the self-defense instruction in the abstract portion of the charge,
but omitted it in the application section.
Id.
 The Court of Criminal Appeals
determined it was error for the court to fail to instruct the jury in the application
paragraph to acquit if they held a reasonable doubt on self-defense.
Id.

       This case is distinguishable from Barrera in that the trial court properly
included language in the application paragraph that required the jury to find
appellant “not guilty” if it had a “reasonable doubt as to whether or not the
defendant was acting in self-defense on said occasion and under the
circumstances.” We cannot agree that a reasonable jury would have been confused
or misled by the instruction.

       While the instruction in this case is sufficient, the Texas Pattern Jury Charge

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contains a more clear charge on self-defense. See Comm. on Pattern Jury Charges,
State Bar of Tex., Texas Criminal Pattern Jury Charges: Defenses §B14.4 (2013).2
Because we find the trial court did not abuse its discretion in submitting the charge
on self-defense, we overrule appellant’s first issue.

    B. Assessment of court costs in the judgment is modified to reflect the
amount due on the bill of costs.
      In his second issue appellant argues the court costs assessed in the judgment
exceed the amount due on the later-issued bill of costs, and requests reformation of
the judgment accordingly.

      The trial court assessed $337 in court costs in its judgment. The sum of the
itemized costs in the cost bill prepared after the judgment was signed is $332. We
review the assessment of court costs on appeal to determine if there is a basis for
the costs, not to determine whether there was sufficient evidence offered at trial to
prove each cost. Johnson v. State,
423 S.W.3d 385, 390
 (Tex. Crim. App. 2014).
Traditional sufficiency-of-the-evidence standards of review do not apply.
Id.

      We conclude that the trial court’s assessment of costs does not accurately
reflect the amount of costs for which there is a basis in the record. An appellate
court may reform a trial court’s judgment to accurately reflect the record when it
has the necessary data and information to do so. Nolan v. State,
39 S.W.3d 697
,


      2
          The suggested language in the Pattern Jury Charge is as follows:
      If you have found that the state has proved the offense beyond a reasonable doubt,
      you must next decide whether the state has proved that the defendant’s conduct
      was not justified by self-defense.
      To decide the issue of self-defense, you must determine whether the state has
      proved, beyond a reasonable doubt, one of the following:
      1.      The defendant did not believe his conduct was immediately necessary to
      protect himself against [name]’s use [or attempted use] of unlawful force; or
      2.       The defendant’s belief was not reasonable.

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698 (Tex. App.—Houston [1st Dist.] 2001, no pet.); see also Tex. R. App. P.
43.2(b). In accordance with the cost bill in the record, we modify the trial court’s
judgment to reflect court costs of $332.

                                 III. CONCLUSION

      We modify the trial court’s assessment of costs to $332 to reflect the cost
bill contained in the record, and affirm the trial court’s judgment as modified.




                                       /s/       Tracy Christopher
                                                 Justice



Panel consists of Justices Christopher, Donovan, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




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