Cedric D Hudgins v. The State of Texas

Houston, TX - Criminal defense attorney represented Cedric D Hudgins with an Aggravated Assault charge.

The grand jury indicted appellant for aggravated assault by intentionally

causing bodily injury to Nicholas Franklin by shooting him, while using or

exhibiting a deadly weapon, namely a firearm. See Tex. Penal Code

§ 22.02(a)(1)(2). Franklin was shot on October 7, 2016 outside of a convenience

store in Houston, Texas. Appellant pled not guilty.

Appellant testified during the guilt-innocence phase of the trial. Appellant

admitted he was at the convenience store at the time of the shooting, that he was

armed, and that he confronted Franklin with his weapon drawn, in the store's

parking lot. Appellant testified that Franklin was also armed, and the two grappled

over Franklin's weapon. However, appellant denied shooting the victim.

According to appellant, Franklin was shot during the struggle by Franklin's

nephew, Joshua Taylor, one of several bystanders in the convenience store parking

lot.

At the guilt-innocence phase charge conference, defense counsel requested

an instruction on self-defense, claiming that "[m]y client did not provoke the

situation, Your Honor, it is his perception that it was the Complainant.” The trial

court denied the request for an instruction on self-defense, observing: "At no time

did he admit to the conduct that's charged in the indictment, and that is shooting

the complaining witness with a deadly weapon, namely, a firearm.” On February

26, 2019, the jury convicted appellant of aggravated assault with a deadly weapon.

The trial court sentenced appellant to 30 years' confinement on March 4, 2019.

1 Because the parties are familiar with the facts of the case and the evidence adduced at

trial, we set forth the facts of the case necessary to advise the parties of the court's decision and

the basic reasons for it in light of the issues raised. See Tex. R. App. P. 47.1, 47.4.3

II. ANALYSIS

Appellant presents a single issue on appeal:

The trial court erred by refusing the request by Hudgins for a jury

charge on self-defense.

This issue requires us to determine whether, on this record, appellant was entitled

to have the jury so instructed.

A. CHARGE ERROR –STANDARD OF REVIEW

In reviewing alleged jury charge error, appellate courts engage in a two-step

process. Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015); Kirsch v.

State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). First, we determine whether

there was error in the charge; if not, our analysis ends. Cortez, 469 S.W.3d at 598;

Kirsch, 357 S.W.3d at 649. If we find there was error in the charge, we must then

determine whether sufficient harm resulted from the error to require reversal.

Cortez, 469 S.W.3d at 598; Kirsch, 357 S.W.3d at 649.

B. LAW GOVERNING SELF DEFENSE

Generally, a defendant is entitled to a self-defense jury instruction when the

issue 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). "A trial court errs in denying a self-defense instruction if there

is some evidence, from any source, that will support the elements of self-defense.”

Fury v. State, 607 S.W.3d 866, 875 (Tex. App.—Houston [14th Dist.] 2020, pet.

ref'd) (citing Gamino, 537 S.W.3d at 510). "A person is justified in using deadly

force against another if . . . he reasonably believes deadly force is immediately

necessary to protect himself against the other's use or attempted use of unlawful 4

deadly force.” Jordan v. State, 593 S.W.3d 340, 343 (Tex. Crim. App. 2020)

(citing Tex. Penal Code § 9.32(a)).

"Self-defense is a confession-and-avoidance defense requiring the defendant

to admit to his otherwise illegal conduct.” Jordan, 593 S.W.3d at 343 (citing

Juarez v. State, 308 S.W.3d 398, 404 (Tex. Crim. App. 2010)); see Rogers v. State,

550 S.W.3d 190, 192 (Tex. Crim. App. 2018). "He cannot both invoke selfdefense and flatly deny the charged conduct.” Jordan, 593 S.W.3d at 343 (citing

Juarez, 308 S.W.3d at 406 (confession-and-avoidance requirements satisfied

despite Juarez's inconsistent testimony alternatively admitting to the conduct and

claiming it was an accident)). Under this doctrine, "a defensive instruction is only

appropriate when the defendant's defensive evidence essentially admits to every

element of the offense including the culpable mental state but interposes the

justification to excuse the otherwise criminal conduct.” Shaw v. State, 243 S.W.3d

647, 659 (Tex. Crim. App. 2007) (emphasis in original). A defendant who denies

committing the offense, on the other hand, is not entitled to such an instruction

because he contends "he has engaged in no conduct which needs justifying.”

Gilmore v. State, 44 S.W.3d 92, 97 (Tex. App. — Beaumont 2001, pet. ref'd).

A claim of self-defense must be supported by the record, and the defendant

bears the initial burden of producing evidence supporting submission of an issue

on the defense. Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018).

In reviewing this issue, we view the evidence in the light most favorable to the

defendant's requested defensive instruction. Gamino, 537 S.W.3d at 510 & n.6

(citing Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006)).

C. APPLICATION

In this case, appellant was indicted for aggravated assault, causing bodily

injury to Franklin by shooting him; the indictment also alleged the use and 5

exhibition of a deadly weapon, namely a firearm. However, appellant took the

stand in his own defense and denied shooting Franklin. Appellant testified that

Franklin's nephew shot Franklin while appellant and Franklin were struggling over

Franklin's gun. On cross examination, appellant testified as follows:

Q: So, you want this jury to believe that it wasn't you who shot

Nicholas Franklin in the neck?

A: Yes.

Q: In fact, it was another individual who shot Nicholas Franklin in

the neck?

A: It was his nephew.

Appellant presented no evidence apart from his testimony. Because appellant

failed to present defensive evidence admitting to the conduct alleged in the

indictment, he failed to carry his initial burden of showing he was entitled to an

instruction on self-defense.

Appellant relies on Gamino v. State to argue that, on this record, he was

entitled to an instruction on self-defense. Appellant's reliance on Gamino is

misplaced. In that case, the defendant was indicted for aggravated assault by

threatening imminent bodily injury while exhibiting or using a deadly weapon, a

gun. Gamino, 537 S.W.3d at 509. The defendant admitted to displaying a gun but

denied pointing it at the complainant. Id. Defendant's request for an instruction

on self-defense was denied and he was convicted. Id. On appeal, the State

contended Gamino was properly denied a defensive instruction because he did not

admit every element of the charged offense as required by the doctrine of

confession-and-avoidance. Id. at 511. The Court of Criminal Appeals disagreed.

Because Gamino also testified to shouting "stop” "get away” and "leave us alone”

while holding the gun at his side, the court explained, "[i]t would have been

reasonable, then, for the jury to infer that the words, "or else I will have to use this 6

gun to protect us,” were implied. Id. at 512. The Court of Criminal Appeals found

the requisite culpable mental state could reasonably be inferred from testimony

about the circumstances surrounding Gamino's conduct. See id.; see also Juarez,

308 S.W.3d at 405 (trial court erred in refusing necessity defense when defendant

both admitted to and denied culpable mental state of the charged conduct when it

could reasonably be inferred from testimony that defendant admitted to charged

conduct).

Recently, our court considered whether the trial court erred in denying the

defendant a self-defense instruction in his jury trial for assault on a public servant,

based on defendant's assertion that although he did not admit to the charged

conduct, the jury should have been provided a self-defense instruction because

defendant's actions were in response to the force used against him by the officer.

Fury, 607 S.W.3d at 876. In finding the appellant was not entitled to this

instruction, we again noted that appellant denied the charged conduct. Id.

Here, appellant expressly denied shooting Franklin and blamed the shooting

on Franklin's nephew, Taylor. Because appellant did not admit to shooting

Franklin as charged in the indictment, the doctrine of confession-and-avoidance is

not satisfied, and appellant is not entitled to an instruction on self-defense. See

Jordan, 593 S.W.3d at 343; Gamino, 537 S.W.3d at 511–12.

We conclude that the trial court did not err by declining to instruct the jury

on self-defense. Because the jury charge was not erroneous, it is unnecessary to

perform a harm analysis.

Appellant's sole issue is overruled.7

We affirm the judgment of the trial court.