Opinion filed June 21, 2018




                                      In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-16-00163-CR
                                  __________

                          JAMIE WILSON, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee

                     On Appeal from the 32nd District Court
                            Mitchell County, Texas
                          Trial Court Cause No. 7564

                      MEMORANDUM OPINION
      The jury convicted Jamie Wilson of the felony offense of assault on a public
servant. See TEX. PENAL CODE ANN. § 22.01(b)(1) (West Supp. 2017 ). Appellant
pleaded “true” to a prior felony alleged for enhancement purposes. The jury assessed
Appellant’s punishment at confinement for a term of twenty years in the Institutional
Division of the Texas Department of Criminal Justice and a fine of $10,000. In two
issues on appeal, Appellant alleges two instances of jury charge error. We affirm.
                                  Background Facts
      On July 17, 2013, Correctional Officer Edward James Peterson was escorting
Appellant in hand restraints to administrative segregation when Appellant bit him
on the left index finger. Officer Peterson testified that Appellant stopped him to ask
for help on a case, and Appellant became irritated and agitated after Officer Peterson
informed him that he was unable to help. Concerned about Appellant’s disruptive
behavior, which included yelling profanities, Officer Peterson testified that he
threatened to take Appellant to “Ad Seg,” to which Appellant responded, “Good[,]
lock me up.” Officer Peterson testified that Appellant voluntarily submitted to the
hand restraints and appeared happy to go to “Seg” because it was air-conditioned.
      While en route, Appellant again asked Officer Peterson for help.
Officer Peterson testified that things escalated quickly after he declined Appellant’s
request for the second time. Officer Peterson testified that Appellant turned around
and tried to head butt him, which prompted Officer Peterson to try to put Appellant
“on the wall.” During the struggle, Officer Peterson’s left hand went in front of
Appellant’s face, and Appellant bit Officer Peterson’s left index finger down to the
bone. Officer Peterson testified that he could not reach his mace because he is left-
handed and the mace was on his left side. Officer Peterson shouted to Appellant to
“let go” multiple times, but Appellant did not comply with the order. Unable to
extract his finger from Appellant’s mouth, Officer Peterson struck Appellant
approximately three to five times in the left side of the head with a closed fist before
Appellant released his finger. Two additional officers witnessed the incident and
helped get Appellant to the ground.
      Appellant took the stand in his own defense. Appellant testified that he tried
to speak with Officer Peterson, who was unsympathetic to Appellant’s request.
Appellant testified that Officer Peterson told him to “put [his] hands behind [his]
back” even though Appellant was not being disruptive and had complied with
                                           2
Officer Peterson’s prior request to produce his ID.          Appellant testified that
Officer Peterson was being “extremely rough” during the escort. Appellant testified
that he told Officer Peterson that Officer Peterson was “doing [him] a favor by
locking [him] up” and that Officer Peterson told Appellant to “shut the f--k up,”
pushed him into the wall, and punched him in the face. Appellant claimed that he
was scared for his life after Officer Peterson’s second punch and that he bit the end
of Officer Peterson’s finger out of self-defense. Appellant claimed that, after he bit
Officer Peterson and told him, “[D]on’t hit me no more,” he released
Officer Peterson’s finger and the alleged assault stopped.
                                              Analysis
      In two issues on appeal, Appellant alleges two instances of jury charge error.
We review a claim of jury charge error using the procedure set out in Almanza v.
State.1 State v. Ambrose, 487 S.W.3d 587, 594 (Tex. Crim. App. 2016). Our first
duty in analyzing a jury charge issue is to decide whether error exists. Arteaga v.
State, 521 S.W.3d 329, 333 (Tex. Crim. App. 2017) (citing Barrios v. State, 283
S.W.3d 348, 350 (Tex. Crim. App. 2009)). If error exists, we must determine
whether the error caused sufficient harm to warrant reversal. Id.
      If a timely objection was lodged at trial, reversal is required if the error
resulted in “some harm” to the defendant. Elizondo v. State, 487 S.W.3d 185, 204
(Tex. Crim. App. 2016). Conversely, when the error was not objected to, reversal is
proper only if the error caused actual, egregious harm to the defendant. Arrington v.
State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015). Because we conclude that the
charge was not erroneous in this case, we do not conduct a harm analysis of either
issue. See Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015) (citing
Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012)).



      1
          686 S.W.2d 157, 171 (Tex. Crim. App. 1985).
                                                  3
      Appellant asserts in his first issue that the trial court erred by failing to sua
sponte provide the jury with an instruction that the State had the burden to prove
beyond a reasonable doubt that Appellant did not act in self-defense. Appellant did
not object to this alleged omission in the court’s charge. Appellant contends that he
was egregiously harmed by the trial court’s alleged error.
      Under Article 36.14 of the Texas Code of Criminal Procedure, the trial court
is required to deliver to the jury “a written charge distinctly setting forth the law
applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007);
Taylor v. State, 332 S.W.3d 483, 486 (Tex. Crim. App. 2011). This duty exists even
when defense counsel fails to object to inclusions or exclusions in the charge and,
thus, may require the trial court to sua sponte instruct the jury on the law applicable
to the case. Taylor, 332 S.W.3d at 486.
      Self-defense is a fact issue to be determined by the jury, and a jury verdict of
guilt is an implicit finding that it rejected a defendant’s self-defense theory.
Saxton v. State, 804 S.W.2d 910, 913–14 (Tex. Crim. App. 1991). For self-defense
claims, the defendant has the burden of producing some evidence to support the
claim. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); see Saxton,
804 S.W.2d at 913–14 (contrasting self-defense from affirmative defenses and
explaining how burdens shift for self-defense). If the defendant produces some
evidence, the State has the “burden of persuasion to disprove the raised defense.”
Zuliani, 97 S.W.3d at 594. The State’s burden does not require the production of
any additional evidence; instead, “it requires only that the State prove its case beyond
a reasonable doubt.” Id.; see Saxton, 804 S.W.2d at 913.
      In this case, the self-defense portion of the charge did not specifically identify
who had the burden to prove or disprove Appellant’s self-defense claim.
The application portion of the jury charge regarding self-defense stated as follows:


                                           4
             If you find from the evidence beyond a reasonable doubt that on
      or about the 17th day of July, 2013, in Mitchell County, Texas, the
      defendant, Jamie Wilson, did then and there intentionally, knowingly,
      or recklessly cause bodily injury to Edward Peterson by biting the index
      finger on Edward Peterson’s left hand, and the defendant knew that
      Edward Peterson was a public servant, to-wit: Texas Department of
      Criminal Justice Correctional Officer, and that Edward Peterson was
      lawfully discharging an official duty to wit: escorting the defendant
      through the Wallace Unit, or you find, beyond a reasonable doubt, the
      defendant, Jamie Wilson, did then and there intentionally, knowingly,
      or recklessly cause bodily injury to Edward Peterson by biting the index
      finger on Edward Peterson’s left hand, but you further find, or have a
      reasonable doubt thereof, that any force used by Edward Peterson was
      unlawful and you further find that the defendant was justified in using
      force against Edward Peterson when and to the degree he reasonably
      believed the force was immediately necessary to protect himself against
      Edward Peterson’s use of unlawful force, you will find the defendant
      not guilty.
(Emphasis added).
      Appellant asserts that the charge should have contained a “more clearly
articulated burden of proof for self-defense,” like the Pattern Jury Charge instruction
for self-defense, which provides as follows: “The defendant is not required to prove
self-defense. Rather, the state must prove, beyond a reasonable doubt, that self-
defense does not apply to the defendant’s conduct.” Comm. on Pattern Jury Charges,
State Bar of Tex., Texas Criminal Pattern Jury Charges: Criminal Defenses PJC
31.17 (2015). The Houston Court of Appeals addressed a similar contention in
Savoy v. State, No. 14-15-00637-CR, 2016 WL 6809168, at *5 (Tex. App.—
Houston [14th Dist.] Nov. 17, 2016, pet. ref’d) (mem. op., not designated for
publication). We agree with our sister court that this language, while preferable, was
not necessary when viewed in light of the entire charge. See Savoy, 2016 WL
6809168, at * 5; see also Goodson v. State, No. 05-15-00143-CR, 2017 WL
1360193, at *10–12 (Tex. App.—Dallas Apr. 12, 2017, pet. ref’d) (mem. op., not
designated for publication).
                                          5
       The charge provided that Appellant was entitled to a presumption of
innocence and that the “burden of proof in all criminal cases rests upon the State
throughout the trial, and never shifts to the defendant.” Furthermore, the charge
stated, “The law does not require a defendant to prove his innocence or produce any
evidence at all.” When read together, the charge cannot be said to have placed the
burden on Appellant to prove that he acted in self-defense. See Luck v. State, 588
S.W.2d 371, 375 (Tex. Crim. App. 1979) (“Clearly, when the charge is viewed as a
whole, it placed the burden on the State to show beyond a reasonable doubt that
appellant was not acting in self-defense.”). Accordingly, the trial court did not err
in failing to sua sponte give the instruction. Appellant’s first issue is overruled.
       In his second issue, Appellant asserts that the trial court erred by providing a
partial Geesa2 instruction on reasonable doubt over his objection. The court’s charge
contained the following language:
              It is not required that the prosecution prove guilt beyond all
       possible doubt; it is required that the prosecution’s proof excludes all
       “reasonable doubt” concerning the defendant’s guilt. In the event you
       have a reasonable doubt as to the defendant’s guilt after considering all
       the evidence before you, and these instructions, you will acquit him and
       say your verdict “not guilty.”
Appellant objected to this portion of the charge on the basis that “reasonable doubt
is not to be defined in the Court’s Charge, and that this sentence included in the
Court’s Charge shifts the burden of proof to the Defense to raise reasonable doubt.”
On appeal, Appellant contends that this charge defined reasonable doubt because
“[e]xplaining what something is not, is essentially defining what it is.”




       2
        Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991), overruled in part by Paulson v. State, 28
S.W.3d 570, 573 (Tex. Crim. App. 2000).


                                                   6
       The language in the court’s charge quoted above combines paragraphs three
and six of the Geesa instruction.3                 Both at trial and on appeal, Appellant is
challenging the first sentence of the charge by the trial court that tracks the third
paragraph of the Geesa charge. In other words, Appellant is not challenging the
second sentence of the charge instructing the jury to acquit Appellant if it has a
reasonable doubt of his guilt, which is the sixth paragraph of the Geesa charge.
       Appellant acknowledges that this court has held that the first sentence of the
complained-of language does not define reasonable doubt, and he asks us to
reconsider our decision. See Daughtry v. State, No. 11-01-00329-CR, 2003 WL
22146391, at *4 (Tex. App.—Eastland 2003, no pet.) (not designated for
publication). Following our decision, the Texas Court of Criminal Appeals held in

       3
         Under Geesa, trial courts were required to define reasonable doubt in their jury charges by
including the following six-paragraph jury instruction:
       [1] All persons are presumed to be innocent and no person may be convicted of an offense
       unless each element of the offense is proved beyond a reasonable doubt. The fact that a
       person has been arrested, confined, or indicted for, or otherwise charged with, the offense
       gives rise to no inference of guilt at his trial. The law does not require a defendant to prove
       his innocence or produce any evidence at all. The presumption of innocence alone is
       sufficient to acquit the defendant, unless the jurors are satisfied beyond a reasonable doubt
       of the defendant’s guilt after a careful and impartial consideration of all the evidence in the
       case.
       [2] The prosecution has the burden of proving the defendant guilty and it must do so by
       proving each and every element of the offense beyond a reasonable doubt and if it fails to
       do so, you must acquit the defendant.
       [3] It is not required that the prosecution prove guilt beyond all possible doubt; it is required
       that the prosecution’s proof excludes all “reasonable doubt” concerning the defendant’s
       guilt.
       [4] A “reasonable doubt” is a doubt based on reason and common sense after a careful and
       impartial consideration of all the evidence in the case. It is the kind of doubt that would
       make a reasonable person hesitate to act in the most important of his own affairs.
       [5] Proof beyond a reasonable doubt, therefore, must be proof of such a convincing
       character that you would be willing to rely and act upon it without hesitation in the most
       important of your own affairs.
       [6] In the event you have a reasonable doubt as to the defendant’s guilt after considering
       all the evidence before you, and these instructions, you will acquit him and say by your
       verdict “Not guilty.”
Geesa, 820 S.W.2d at 162.
                                                      7
two cases that a trial court did not abuse its discretion in giving the same instruction.
Mays v. State, 318 S.W.3d 368, 389 (Tex. Crim. App. 2010); Woods v. State, 152
S.W.3d 105, 115 (Tex. Crim. App. 2004). Accordingly, we decline to revisit this
issue. See Matthews v. State, 478 S.W.3d 781, 783 (Tex. App.—Fort Worth 2015,
no pet.) (holding that “instructing the jury what the term ‘reasonable doubt’ does not
mean is not providing a definition of what the term does mean”). We overrule
Appellant’s second issue.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                                   JOHN M. BAILEY
                                                                   JUSTICE


June 21, 2018
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.4




        4
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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