Texas Stamp


PD-0039-19 05/01/2019

1. "Is a defendant entitled to a jury instruction on self-defense when he testifies that he did not commit the charged offense and, at most, he admits to committing a separate lesser-included offense?"

 2. "Does an appellate court correctly apply the standard of review for harm when it fails to consider significant evidence of guilt and the defensive theory put forth at trial, which was that the defendant did not commit the charged offense, not that he committed it in self-defense?"

Foster was charged with aggravated assault by causing serious bodily injury to the victim by pulling her hair and cutting her with a knife. Part of the back of the victim’s scalp was sliced off during the incident between her and Foster; at trial, this was the only evidence of serious bodily injury.  According to the victim, Foster punched and strangled her, cut her scalp and hair with a serrated knife, and laughed when she briefly struggled over possession of the knife and had the knife at his neck.  Photographs showed Foster had a laceration on his neck that night, and later he had a scar near his armpit. He testified that, during an argument, the victim cut off her own hair and then attacked him with the knife. According to Foster, he believed she was going to try to kill him and a struggle ensued. He hit her and tried to hold her down by the neck.  Because she was holding the knife so close to her chin, her chin was cut.  He testified that he did not scalp her or cut her hair.  After the State played a recording of him admitting he had cut her hair, Foster retook the stand and said some of her hair got cut in the struggle.  When asked, “Did you cut her hair with a knife,” Foster initially began “Technically---” and then ultimately said “Yes, it happened.”  The trial court denied the self-defense instruction, and he was convicted of aggravated assault.

On appeal, Foster challenged the denial of the instruction, and the court of appeals reversed his conviction.  It found that Foster arguably admitted to causing an injury to her scalp; even if his testimony didn’t go that far, it was enough for him to say that his actions resulted in the victim being cut with a knife (which is what the indictment alleged).  The court of appeals reiterated that under Gamino v. State, 537 S.W.3d 507 (Tex. Crim. App. 2017), the defendant is not required to concede the State’s version of events to be entitled to an instruction.  It found the error harmful because, not having been instructed on the defense, the jury had no option of acquitting Foster in light of his admissions. Also, self-defense was a focus of voir dire and the defense’s opening statement.

The State argues that the court of appeals impermissibly plucked certain statements (that the victim’s hair and chin were cut) out of Foster’s testimony that he unequivocally did not cause the scalp injury.  According to Foster, the victim caused the scalp injury to herself, even before the struggle.  Moreover, because there was no evidence that cutting the victim’s hair and chin resulted in serious bodily injury, at most this was an admission to a separate lesser-included offense, not the conduct Foster was charged with.  Unlike Gamino, the element of causing serious bodily injury cannot be inferred from Foster’s testimony since he explicitly denied this proposition.  The State also contends that the harm analysis was erroneous.  It argues that, because Foster never testified to committing the offense, this was not a typical denial-of-self-defense-instruction situation where the omission of the instruction leaves the jury without a vehicle to acquit a defendant who has admitted all the elements.  The State also argues the harm analysis failed to consider that the actual defensive theory was that Foster did not commit the offense and that the entire record of the case included significant evidence of guilt.                    

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