Opinion
No. 05-18-00313-CR
05-29-2019
CARLA GAY JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court No. 10 Dallas County, Texas
Trial Court Cause No. MA17-40154-L
MEMORANDUM OPINION
Before Justices Myers, Molberg, and Carlyle
Opinion by Justice Carlyle
Carla Gay Johnson was convicted of misdemeanor assault causing bodily injury, family violence. She appeals from her conviction, contending the trial court erred by failing to instruct the jury on self-defense. She also contends the trial court erred in assessing a $150 public-defender fee as court costs. We affirm the trial court as modified in this memorandum opinion. See TEX. R. APP. P. 47.4.
I. Background
Johnson moved in with her sister, Debbie David, after living arrangements with other relatives became unworkable. Johnson—who has suffered two aneurysms in her frontal lobe—frequently complains about seeing bugs that no one else can see. While living with David, Johnson took various actions aimed at getting rid of the (apparently imaginary) bugs in David's house. On the morning of January 4, 2017, David awoke to find Johnson had placed her comforter, sheets, pillows, and pillow cases out on the patio furniture because of the bugs. Johnson also spent more than an hour that day vacuuming her bedroom to remove the bugs.
The next day, David confronted Johnson when she again started vacuuming her bedroom in an effort to get rid of the bugs. That confrontation was the subject of the trial. According to David, she told Johnson to stop vacuuming because there were no bugs. Johnson responded by saying that David could not tell her she could not vacuum. David responded: "Yes, I can because you've done it enough. There's no reason. You've got to stop this obsession." The two continued arguing about whether David could stop Johnson from vacuuming. At some point, David reached toward the vacuum and said, "Yes, I can stop this." This is where accounts of the confrontation diverge.
According to David, before she could reach the vacuum, Johnson grabbed her hard by both wrists and shoved her backwards. David initially struggled to get free, but Johnson overpowered her, and she stopped resisting. At that point, Johnson briefly let go of David's wrists before grabbing David by the throat, pushing her into a chest of drawers, and pressing her elbow against David's chest while saying: "I can take you out. I can knock you out. You know I can. I can knock you out." David again stopped resisting, and Johnson let her go.
After calling her brother for advice, David called 911 to report the alleged assault. Two officers responded to the scene and were eventually joined by a third. The officers interviewed both David and Johnson, and they took photographs of David's injuries. Although the officers also noted scratches on Johnson's arms, they did not photograph Johnson's injuries, apparently believing they were self-inflicted. Ultimately, the officers arrested Johnson, concluding she was the physical aggressor.
The officers believed David verbally instigated the confrontation, but they concluded Johnson used unlawful physical force in response.
Johnson was charged with assault causing bodily injury, family violence—a Class A misdemeanor. Specifically, the information alleged that Johnson injured David by grabbing her, forcing her against a wall, and by scratching her with her hands. Johnson pleaded not guilty and proceeded to a jury trial.
At the trial, David provided her account of the confrontation, and one of the arresting officers testified about the investigation into the incident. Along with photographs of David's injuries, the officers' body camera footage was admitted into evidence. Although Johnson did not testify, her account of the incident was provided to jurors through the officers' body camera footage.
In addition to the photographs taken by the officers, photographs taken by David herself were introduced to demonstrate some of her alleged injuries. Specifically, the State introduced a photograph taken from David's cell phone, which appeared to show bruising on David's throat.
According to Johnson, David attacked her after confronting her about the vacuuming. She alleged that David grabbed the vacuum and threw it at her, pushed her into a chair, and hit her in the face. Johnson specifically denied grabbing David by the throat and trying to choke her. She insisted she merely put her hands up in a defensive posture, telling David to stay back. At one point, Johnson told officers: "I have a right to defend my property," but she did not explain what she meant by that. She also appears to have vaguely admitted in the footage that she may have gently brushed David aside while telling her to stay back and get out of her bedroom. But she categorically denied injuring David, and she claimed David's injuries were entirely self-inflicted.
The jury found Johnson guilty, and she was sentenced to three days in jail (with credit for time served). The trial court made an affirmative finding of family violence and, in its judgment, indicated Johnson was responsible for paying an unspecified amount of court costs. Nevertheless, the trial court indicated it was waiving court costs on its docket sheet. And the bill of costs, which includes a $150 fee for Johnson's public defender, reflects a zero balance.
II. Discussion
A. Self-defense
In her first issue, Johnson contends the trial court erred by refusing to provide an instruction on self-defense. A defendant is entitled to a self-defense instruction if the issue of self-defense is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense. Gamino v. State, 537 S.W.3d 507, 510 (Tex. Crim. App. 2017) (cleaned up). In reviewing the denial of a self-defense instruction, we must "view the evidence in the light most favorable to the defendant's requested submission." Id. An instruction is warranted "if there is some evidence, from any source, when viewed in the light most favorable to the defendant, that will support the elements of self defense." Id. Thus, a defendant is generally entitled to a self-defense instruction where "there is some evidence that [s]he intended to use force against another and [s]he did use force, but [s]he did so only because [s]he reasonably believed it was necessary to prevent the other's use of unlawful force." Ex parte Nailor, 149 S.W.3d 125, 132 (Tex. Crim. App. 2004); see also TEX. PENAL CODE § 9.31(a) ("[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.").
Metzler, Theodore, Cleaning Up Quotations, 18 J. of App. Prac. & Process 143 (2017) (discussing and explaining the "cleaned up" parenthetical, a way to shorten unnecessarily lengthy citations); see Cadena Comercial USA Corp. v. Tex. Alcohol & Beverage Comm'n, 518 S.W.3d 318, 341 n.18 (Tex. 2017) (Willett, J., dissenting); see also United States v. Reyes, 866 F.3d 316, 321 (5th Cir. 2017); Robinson v. Home Owners Mgmt. Enters., Inc., 549 S.W.3d 226, 231 (Tex. App.—Ft. Worth 2018, pet. filed).
Self-defense is nevertheless subject to the confession-and-avoidance doctrine—that is, to avoid criminal liability on the ground of self-defense, the defendant must generally confess to all elements of the otherwise criminal conduct before claiming that the conduct was legally justified. See Ex parte Nailor, 149 S.W.3d at 133-34 & n.33. Although a defendant is "not required to concede the State's version of the events," Gamino, 537 S.W.3d at 512, she must at least acknowledge "perform[ing] the actions the State alleged." Ex parte Nailor, 149 S.W.3d at 134.
Here, Johnson did not confess to using force to cause David bodily injury, denied initiating any contact with David, and claimed David's injuries were entirely self-inflicted. Accordingly, the trial court did not err by withholding a self-defense instruction. See Ex parte Nailor, 149 S.W.3d at 134; see also VanBrackle v. State, 179 SW.3d 708, 715 (Tex. App.—Austin 2005, no pet.) ("[A] defendant is not entitled to a jury instruction on self-defense if, through h[er] own testimony or the testimony of others, [s]he claims that [s]he did not perform the assaultive acts alleged . . . .").
B. Court costs
In her second issue, Johnson contends the trial court erred in assessing a $150 cost for her court-appointed attorney. The trial court previously concluded Johnson was indigent, and Johnson was likewise determined to be indigent for purposes of appeal. See TEX. CODE CRIM. PROC. art. 26.04(p). There was no evidence presented to demonstrate a material change in Johnson's financial circumstances following the trial court's initial determination of her indigency. See id. Thus, we agree with Johnson that there was no record basis to support a finding that Johnson could pay the $150 charge. See id. art. 26.05(g); Cates v. State, 402 S.W.3d 250, 251-52 (Tex. Crim. App. 2013); Bahle v. State, Nos. 05-10-01057-01058-CR, 2012 WL 1382568, at *5 (Tex. App.—Dallas Apr. 23, 2012, no pet.) (not designated for publication).
As the State points out, however, Johnson likely suffered no harm, because the trial court appears to have waived all court costs on its docket sheet, and the bill of costs reflects a zero balance. Nevertheless, to remove any ambiguity, we modify the trial court's judgment to delete the phrase ordering Johnson to pay "expenses of legal services provided by the court appointed attorney or public defender in this cause."
III. Conclusion
We affirm the trial court's judgment as modified in this opinion.
/Cory L. Carlyle/
CORY L. CARLYLE
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
180313F.U05
JUDGMENT
On Appeal from the County Criminal Court No. 10, Dallas County, Texas
Trial Court Cause No. MA17-40154-L.
Opinion delivered by Justice Carlyle. Justices Myers and Molberg participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
The phrase "expenses of legal services provided by the court appointed attorney or public defender in this cause" is deleted from the portion of the judgment ordering payments from Johnson. As REFORMED, the judgment is AFFIRMED. Judgment entered this 29th day of May, 2019.