CourtListener 10741646•Ruben Brador v. the State of Texas
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-24-00501-CR
Ruben Brador, Appellant
v.
The State of Texas, Appellee
FROM COUNTY COURT AT LAW NO. 4 OF TRAVIS COUNTY
NO. C-1-CR-21-500681, THE HONORABLE DIMPLE MALHOTRA, JUDGE PRESIDING
OPINION
Ruben Brador was charged with the offense of assault family violence. See Tex.
Penal Code § 22.01. The jury found him guilty of the charged offense. He elected to have the
trial court assess his punishment. The trial court sentenced him to one year in jail but placed him
on community supervision for two years. See id. §§ 12.21, 22.01(b). In three issues on appeal,
Brador contends that there was error in the jury charge. We will reverse the trial court’s
judgment of conviction and remand for further proceedings.
BACKGROUND
Early in the morning on June 8, 2021, Richelle Soat called 911 seeking help from
Emergency Medical Services. During the call, she stated that her face had been slammed into
her kitchen island and was bleeding. She also told the dispatcher that she had been delaying
calling 911 because she loved the person who caused her injuries and told the dispatcher that the
person who caused the injuries was intoxicated and on drugs.
In response to the 911 call, police officers drove to Soat’s apartment. When the
officers arrived, Soat had dried blood on her face, and blood was on the floor and on the door
jamb. Soat told the officers that she had not wanted to call 911. She related that Brador had
become angry during a prior interaction when his phone stopped working, that he left her
apartment, and that she decided not to chase after him. Further, she recalled that she blocked his
cellphone number in her phone after he left but that he later returned to her apartment after
realizing that she had blocked his number. Additionally, she stated that he grabbed her head and
“slammed” it on the island. After the incident, he told her he was sorry and said he loved her.
One officer asked Soat if she was on any medications or drugs because she was “all over the
place” while relating what happened, and she admitted to being on a mood stabilizer. When the
officer later asked if she was on methamphetamine or cocaine, she responded by saying she had
not taken anything “that would keep [her] from telling the truth.” While she talked with the
officers, paramedics arrived to evaluate and treat her. The police later located and arrested
Brador, and he was charged with the offense of assault family violence.
During the trial, the State called the following witnesses: Soat, one of the police
officers who responded to the 911 call, a paramedic who evaluated Soat, and a victims’ services
counselor who testified about the dynamics of domestic abuse. In his case-in-chief, Brador
elected to testify and called the following witnesses: Soat, the same police officer who testified
for the State, another officer who responded to the 911 call, and two individuals who knew both
Brador and Soat. In addition, the following exhibits were admitted into evidence: a recording of
the 911 call made by Soat, body-camera footage from one of the officers who responded to the
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911 call, photos of Soat’s apartment and her injuries taken after she called 911, a recording of a
911 call made by one of Soat’s neighbors concerning an incident in March 2021, photos of
injuries that Soat allegedly sustained during that incident, a recording Brador made with his
phone in December 2021 documenting another incident between Brador and Soat, and a report
prepared by the responding paramedics.
In her testimony, Soat explained that she was dating Brador at the time of the
alleged offense, that she was five feet eight inches tall, and that he was six feet three inches tall.
She also described the hours leading up to the incident. Specifically, she testified that she went
to meet a photographer downtown and that around midnight she felt like people were following
her. She decided to go home, and Brador came over to her apartment after she arrived. She told
him about feeling like she had been followed and was hoping that he would comfort her, but he
insulted her instead and told her she was overreacting. She started crying, and he started yelling
at her. Brador got angry after she told him to call an Uber and leave.
Soat denied hitting Brador, pushing him, or otherwise physically contacting him
that night. She testified that the argument turned physical, that he attacked her, that he grabbed
her by the back of her neck and head, and that he “spun [her] around into the kitchen island” and
forced her face onto the island. When describing the force used, she related that she was either
“grabbed and slammed” or pushed down. She denied falling before or after the assault.
According to Soat, the incident caused her nose to bleed, and Brador tossed her a paper towel
before leaving. She was scared he might retaliate against her, so she delayed calling 911 for
forty-five minutes before ultimately deciding to call.
Soat described her interaction with the police and remembered that she was
anxious and scattered at the time due to the assault. When talking with the police, she admitted
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that she had had a few drinks and had taken medication for her anxiety. She agreed that she was
not supposed to drink alcohol when taking her mental-health medication. She testified that her
medication did not affect her balance or cause her to be angry. She explained that she had panic
attacks and that they made it difficult for her to speak and think, and she admitted that alcohol
probably did not help those issues. Regarding her injuries, she related that her nose was
fractured, that she had to get stitches, and that the bruising lasted for weeks.
In her testimony, Soat also discussed other incidents of domestic abuse. She
testified that in March 2021 Brador pulled her by her hair, dragged her across the floor, and
placed her in a chokehold that prevented her from breathing. She remembered having rug burns
on her back and bruises on her arm from that incident. Additionally, she mentioned that he
stopped abusing her when one of her neighbors called 911. A recording of the 911 call was
admitted into evidence. On the recording, a neighbor said he heard fighting in a nearby
apartment and reported that the man involved in the incident was leaving and that the woman had
been hit. Photos of Soat’s injuries from that incident were admitted into evidence and showed
abrasions on her back and arms.
Even though she admitted to defending herself against Brador in other incidents,
Soat testified that she was never the first aggressor and that she would “lay hands on him” only
when he got physical first. Further, she related that she continued to be in a relationship with
him after the incident because she felt trapped emotionally. When asked if she sent a Facebook
message to him stating that she was sorry and that she had lied, she said that she did not
remember sending that and that if she did, it was because she was not in a “right state of mind”
and felt “very alone” at the time. She agreed that she was “lying about lying” about the incident.
She also testified that she would say things that she did not mean because she wanted to be loved
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and because she feared retaliation by him. She asserted that her account of the assault at issue
was truthful.
Although Soat explained that she stopped seeing Brador in October 2021, she also
admitted that she invited him to her apartment in December 2021. She testified that she had
wanted to tell him that she had started seeing someone else. During her cross-examination, a
video recording made by Brador of their interaction in December was admitted into evidence.
On the recording, she pleaded with him to show her his phone and told him that she would give
him anything that he wanted if he would show her his phone. The video also depicts him telling
her that he was leaving and her grabbing on to him, keeping him from leaving, and trying to take
his phone from him. During this exchange, she went to the ground and grabbed and held on to
multiple parts of his body to keep him from leaving as he backed away, and she tried to pull him
down to the ground. He again told her that he was trying to leave and then said, “I am trying to
leave but she won’t let me leave. Let me go.” Quickly thereafter, he yelled, “She is biting me”
before getting away.
When discussing the recording, Soat agreed that Brador asked her multiple times
to let him leave and that she was grabbing him, but she denied trying to hit him. Further, she
acknowledged that she did not remember the incident but did remember having to post bond the
following day for an assault charge. However, she also explained that the charge against her was
later dismissed and that the recording did not show the entirety of their interaction. She believed
that he provoked her that night to record her in an attempt to get his own charges dismissed.
One of the officers who responded to the 911 call about the incident in question
testified that Soat had blood on her face, shirt, and hands, but he also explained that the blood
had dried, indicating that it had been “there for [a] certain amount of time.” When describing
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Soat, the officer recalled that she was anxious and talking fast, had difficulty expressing what
had happened, talked around the events, and could not recall what happened in chronological
order; however, he said that she spoke clearly, that he was able to understand her, that it was
common for a victim not to be calm and collected, and that she did not appear to have any issues
with her balance. The officer agreed that Soat admitted to being on a mood stabilizer, but he did
not know if she was on any other medication. Further, the officer admitted that he had agreed
with a statement made by his partner that Soat was “high as a kite” because of how she was
acting. At Soat’s apartment, the officer asked her if she was under the influence of medication
because of her behavior and because she could not directly answer the questions he asked.
Concerning Soat’s injuries, the officer testified that the laceration on her nose had
stopped bleeding but that she appeared to be in pain. Additionally, he explained that the injury
to her nose could have been caused by her head being slammed onto the countertop as Soat
claimed, but he also believed it could have been caused by her hitting the corner of an object.
Although the officer agreed that there was probable cause to arrest Brador, the officer also
admitted that he did not know if Brador caused the injury.
Another officer who responded to the scene testified that he stated that night that
Soat was “high as a kite.” Further, the officer observed Soat’s slurring her speech and being
unable to answer questions asked of her. The officer also explained that victims of domestic
abuse can seem scattered and jump around topics and that there are prescription medicines that
can cause a person to jump around as Soat did when telling a story. The officer agreed that lack
of coordination can be an effect of intoxication.
One of the responding paramedics testified that Soat told him that Brador
slammed her face into the kitchen island and that the laceration of the nose was consistent with
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Soat’s description of that event. Additionally, the paramedic related that the laceration was
Soat’s chief complaint and that she needed stitches for the wound. Further, the paramedic
explained that the medical report from the incident stated that Soat was walking on her own and
did not have an unsteady gait. The only injury listed in the report was the laceration to her nose,
and the report reflected that she was not in any distress.
In his testimony, Brador described Soat as wanting to control whom he talked to
and where he could go. Further, he related that he could not communicate with her when she
drank alcohol and that she made poor decisions when she was drunk. More specifically, he
testified that she would get upset with him and physically assault him by punching him on his
head. He explained that he did not call 911 during these events because he loved her.
Regarding the incident in question, Brador testified that Soat texted him at 3:00
a.m. and asked him to come over to her apartment. When he arrived, he noticed that she was
“annihilated drunk,” was stumbling, and was describing an incident from earlier in the night that
did not make sense to him. She became angry when she thought that he did not believe her,
asked him to delete contacts on his Facebook page for people she did not like, and got upset
when he refused. He decided to leave and gathered his belongings and his dog, but she pushed
him into a wall and started punching his chest before punching his head. He told her to get off
him and “went like this, she of course off balance she literally turns around, falls forwards, hits
her nose right there on the island.” He clarified that he “shoved her off” him and that she lost her
balance, stumbled, and went toward the island. He admitted that he did not have any visible
injuries from her assault.
Brador denied grabbing Soat’s head or forcing her head to hit the island. He
testified that he did not intend for her to hit the island at all, was just “pushing her off” him, and
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did not think he pushed her very hard. He also denied wanting to hurt her. While seeing her fall,
he first thought she had hit her hand rather than her head and did not see blood right away. After
he retrieved his dog from her bedroom, he noticed blood and a cut on her nose. Concerning the
events that happened next, he explained that he tried to help her clean the wound and stayed at
the apartment for an additional thirty minutes. However, he testified that he eventually had to
leave because she kept threatening him; he admitted that he did not call 911. He recalled that
Soat later told him that she called the police that day because he decided to leave her apartment.
In his testimony, Brador explained that he filmed other incidents between them
after Soat gave a false statement to the police. He denied ever being the first aggressor and
said she was the primary aggressor in the relationship and would assault him. Although he
acknowledged that he did not report the abuse, he explained that he did not do so because he did
not want to cause problems for her.
When discussing the earlier March 2021 incident in which a neighbor called the
police, Brador related that the injuries Soat sustained were not caused by him dragging her but
by her holding onto his leg while he tried to leave the apartment. He denied hitting her and
trying to choke her during the incident. He admitted that he left the scene but stated that he came
back to talk with the police. He also admitted that he was arrested and charged with assault for
that incident and that the case was still pending.
Brador discussed another incident in which Soat started hitting her head on a
window at a hotel, which resulted in the hotel staff kicking them out. Later that day, she took off
her clothes at his apartment and proceeded to “destroy” the inside of his apartment. Then she
rolled on the ground crying and screaming before she started swinging at him. The police
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arrived at his apartment, and he told them that he did not want to press charges and instead just
wanted her out of his apartment.
Next, one of Soat and Brador’s friends testified that Soat did not have a good
character and that she had a reputation for being aggressive and violent at bars. Soat’s former
employer explained that Soat was not very nice to Brador, was jealous of other girls, liked to
drink a lot, and was an aggressive person. When asked to rank Soat’s level of aggressiveness,
the employer placed Soat in the maximum possible category.
After both sides rested, the trial court submitted to the jury a charge setting out the
elements of the offense of assault family violence, applying the law to the allegations at issue in
this case, and containing instructions pertaining to self-defense. The jury found Brador guilty of
the charged offense. Following a sentencing hearing, the trial court rendered its judgment of
conviction. Brador appeals his conviction.
GOVERNING LAW
In his appellate issues, Brador contends that there were errors in the self-defense
instruction in the jury charge. Chapter Nine of the Penal Code contains several defenses to
prosecution, including the provision governing self-defense, which provides that “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.” Tex. Penal Code §§ 9.02, .31(a). “‘Reasonable belief’ means a belief that
would be held by an ordinary and prudent man in the same circumstances as the actor.” Id.
§ 1.07(a)(42). “Self-defense is a justification for otherwise unlawful conduct.” Torres v. State,
7 S.W.3d 712, 714 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).
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When preparing a jury charge, a trial court must deliver to the jury a written
charge distinctly setting forth the law applicable to the case. Tex. Code Crim. Proc. art. 36.14.
Jury instructions must apply the law to the facts adduced at trial and conform to the allegations in
the indictment. Sanchez v. State, 376 S.W.3d 767, 773 (Tex. Crim. App. 2012). “Jury charges
contain both an abstract section and an application section.” See Torres v. State, 691 S.W.3d
138, 147 (Tex. App.—Austin 2024, pet. ref’d). The abstract portion of a charge serves as a
glossary to explain the meanings of concepts and terms used in the application paragraph of the
charge but “does not authorize conviction on its own.” Id. “The application paragraph is the
portion of the jury charge that applies the pertinent penal law, abstract definitions, and general
legal principles to the facts and indictment allegations of a given case.” Id. “The application
portions allow the jury to convict a defendant of a particular offense.” Id.
When addressing an issue regarding an alleged jury-charge error, appellate
courts must first decide whether there is error before addressing whether the alleged error
resulted in any harm. See Thanh Cuong Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App.
2005). In reviewing a charge for alleged error, we examine the charge as a whole rather than as
a series of isolated and unrelated statements. Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim.
App. 1995).
DISCUSSION
In three issues on appeal, Brador contends that the trial court erred by (1) failing
to properly instruct the jury on the burden of proof for self-defense and when an acquittal is
warranted, (2) including a provocation instruction, and (3) failing to include an instruction on the
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definition of provocation. Further, he contends that these errors were harmful and should result
in a reversal of his conviction.1
Self-defense
The relevant parts of the abstract pertaining to self-defense provided as follows:
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 believes the force is immediately
necessary to protect himself against the other person’s use or attempted use of
unlawful force.
When a person is attacked, or an attempt is made to attack such person, with
unlawful force and there is created in the mind of such person a reasonable
expectation of fear of some bodily injury, then the law excuses or justifies such
person in resorting to force to the degree reasonably believed to be immediately
necessary, viewed from the actor’s standpoint at that time, to protect themselves
from attack or attempted attack.
1
In its brief, the State suggests that Brador’s attorney’s participation in helping to prepare
the charge and failure to object to any alleged errors should preclude this Court from addressing
these issues. The Court of Criminal Appeals has indicated that judicial estoppel can prevent a
party from arguing on appeal about a jury-charge error when the record shows that the defendant
requested the instruction and then indicated his agreement when it was explained that the
instruction had been included. See Ruffins v. State, 666 S.W.3d 636, 643 (Tex. Crim. App.
2023); see also Druery v. State, 225 S.W.3d 491, 506 (Tex. Crim. App. 2007) (concluding that
defendant could not present jury-charge issue when he “induced the alleged error on which he
now complains” by requesting that instruction not be given). Similarly, the Court of Criminal
Appeals has concluded that a defendant was prohibited from presenting an appellate claim
concerning the inclusion in the charge of instructions for an unindicted offense where the record
showed that “appellant had some responsibility for the jury instruction” by helping “prepare
the charge, including” the instruction at issue. See Woodard v. State, 322 S.W.3d 648, 659 (Tex.
Crim. App. 2010). However, nothing in the record reflects that an analogous set of exchanges
occurred in this case. In the charge conference, the trial court stated that both sides had “a copy
of the final charge with the amendments that have been agreed upon,” but the record does not
reflect what the amendments were or whether they were made at Brador’s suggestion. Although
Brador did state that he had no objection to the final charge, the Court of Criminal Appeals has
explained that an “affirmative denial of objection” to a jury charge is “equivalent to a failure to
object” and does not prevent appellate review of a jury-charge issue. Bluitt v. State, 137 S.W.3d
51, 53 (Tex. Crim. App. 2004). Failures to object typically elevate the harm that must be shown
to warrant a reversal but do not preclude appellate courts from addressing jury-charge issues.
See Torres v. State, 691 S.W.3d 138, 147 (Tex. App.—Austin 2024, pet. ref’d). Accordingly,
Brador is not estopped from presenting his appellate claims.
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...
[T]he term “reasonable belief” as used herein [] mean[s] a belief that would be
held by an ordinary or prudent person in the same circumstances as the
Defendant.
The application portion of the charge provided as follows:
Now if you find and believe from the evidence beyond a reasonable doubt that the
Defendant Ruben Brador, on or about the 8th day of June 2021, in Travis County,
Texas did then and there intentionally, knowingly or recklessly cause bodily
injury to Richelle Soat, a family or household member or an individual with
whom the Defendant had a dating relationship, by seizing Richelle Soat on and
about the head with the Defendant’s hand or by pushing Richelle Soat on or about
the head with the Defendant’s hand, but you further find from the evidence that at
the time the Defendant was under attack or attempted attack from the complainant
Richelle Soat and that the Defendant reasonably believed that such force as he
used was immediately necessary to protect himself against such attack or
attempted attack and so believing, he pushed Richelle Soat on or about the head
with the Defendant’s hand and that such force was not deadly force used by the
Defendant, then you will acquit the Defendant and say by your verdict not guilty.
When asserting that there was error in the portions of the jury charge pertaining to
self-defense, Brador argues that the charge did not properly and fully instruct the jury concerning
when they should acquit a defendant. Although Brador acknowledges that the charge directed
the jury to acquit him if it “found from the evidence” that he acted in self-defense, he emphasizes
that neither the abstract nor the application sections instructed the jury about the State’s burden
concerning self-defense or specified that the jury must acquit if it had “a reasonable doubt
thereof” regarding whether he acted in self-defense. He contends that failing to include
instructions concerning these concepts constituted jury-charge error.
We agree. Self-defense is a defense to prosecution. Saxton v. State, 804 S.W.2d
910, 912 n.5 (Tex. Crim. App. 1991); see also Tex. Penal Code § 9.31 (setting out elements of
defense). The Penal Code requires that jury instructions pertaining to defenses to prosecution
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include language stating “that a reasonable doubt on the issue requires that the defendant be
acquitted.” Tex. Penal Code § 2.03(d). Further, the defendant has only the burden of producing
evidence that raises self-defense; the State still has the “burden of persuasion to disprove the
raised defense.” Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003).
Consistent with the law set out above, the pattern jury charge for self-defense
suggests that the abstract portion of the charge include a burden-of-proof instruction stating 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.” See
Committee on Pattern Jury Charges, State Bar of Tex., Texas Criminal Pattern Jury Charges:
Justification Defenses (“CPJC”) ch. 9.10 (2024); see also Lozano v. State, 706 S.W.3d 429, 458
(Tex. App.—Austin 2024, no pet.) (relying on pattern jury charges when addressing jury-charge
error). Regarding the application section, the pattern jury charge recommends including an
instruction requiring the jury to consider whether the State has proved beyond a reasonable doubt
that “the defendant did not believe his use of force was immediately necessary to protect himself
against [name]’s use . . . of unlawful force” or that “the defendant believed his use of force was
immediately necessary to protect himself, but the defendant’s belief was not reasonable” and
then include an instruction specifying that the jury “must find the defendant ‘not guilty’” if
the jury “find[s] that the state has failed to prove, beyond a reasonable doubt, either element.”
CPJC, ch. 9.10.
Arguably there is likely much overlap between an instruction that requires a jury
to acquit if it had a reasonable doubt as to whether self-defense applied and an instruction
specifying that the State had to prove beyond a reasonable doubt that self-defense did not apply.
See Luck v. State, 588 S.W.2d 371, 375 (Tex. Crim. App. 1979) (determining that there was no
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error from omission of instruction stating that State had to disprove beyond reasonable doubt that
self-defense applied where charge did include instruction that jury had “to acquit appellant if
they believed that he was acting in self-defense or . . . had a reasonable doubt thereof”). In fact,
the Court of Criminal Appeals has explained that the effect of requiring the jury charge to direct
the jury to acquit if it has a reasonable doubt about self-defense is to require the State to disprove
self-defense. Id. However, as Brador points out, the jury charge in this case neither instructed
the jury that the State had to disprove self-defense beyond a reasonable doubt nor that the jury
had to acquit if it had a reasonable doubt as to self-defense.
Viewing the charge as a whole, we conclude that the trial court erred by failing to
include instructions specifying either that reasonable doubt concerning self-defense must result
in the jury acquitting Brador or that the State had the burden to show beyond a reasonable doubt
that self-defense did not apply. See Scott v. State, No. 05-22-00113-CR, 2024 WL 445942, at *3
(Tex. App.—Dallas Feb. 6, 2024, no pet.) (mem. op., not designated for publication) (noting that
charge failed to include “instruction that properly places the burden of proof on the State to
show beyond a reasonable doubt that appellant was not acting in self-defense”); Rivas v. State,
486 S.W.3d 640, 651 (Tex. App.—San Antonio 2016, pet. ref’d) (concluding that jury charge
was erroneous because it failed to include instruction that jury must acquit defendant if it had
reasonable doubt on issue of self-defense); Russell v. State, 834 S.W.2d 79, 82 (Tex. App.—
Dallas 1992, pet. ref’d) (same).
Having determined that there was error in the jury charge, we must now consider
whether Brador was harmed by the error. See Torres, 691 S.W.3d at 151. The amount of harm
needed for a reversal depends on whether a complaint regarding “that error was preserved in the
trial court.” Swearingen v. State, 270 S.W.3d 804, 808 (Tex. App.—Austin 2008, pet. ref’d).
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If no objection was made, as in this case, a reversal is warranted only if the error “resulted
in ‘egregious harm.’” See Neal v. State, 256 S.W.3d 264, 278 (Tex. Crim. App. 2008) (quoting
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)).
In assessing harm, appellate courts “consider: (1) the jury charge as a whole,
(2) the arguments of counsel, (3) the entirety of the evidence, and (4) other relevant factors
present in the record.” See Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).
However, “[t]he purpose of the egregious-harm inquiry is to ascertain whether the defendant has
incurred actual, not just theoretical, harm,” Swearingen, 270 S.W.3d at 813, and “reversal for an
unobjected-to erroneous jury instruction 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). “Egregious
harm is a difficult standard to meet.” Sandoval v. State, 665 S.W.3d 496, 528 (Tex. Crim. App.
2022) (quoting Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016)). For the
reasons set out below, we conclude that Brador was egregiously harmed by the omission.
Jury Charge as a Whole
As set out above, nothing in the jury charge specifically directed the jury to acquit
if it had a reasonable doubt about the issue of self-defense or specifically addressed the State’s
burden with respect to self-defense; instead, the charge allowed the jury to acquit Brador
only if it affirmatively found from the evidence that self-defense applied. See Allen v. State,
263 S.W.3d 168, 173 (Tex. App.—Houston [1st Dist.] 2007) (explaining that error in jury charge
that omitted language requiring jury to acquit if it had reasonable doubt about defense
“effectively shifted the burden to appellant to prove the defense”), vacated on other grounds by
253 S.W.3d 260 (Tex. Crim. App. 2008); see also Scott, 2024 WL 445942, at *3 (concluding
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that inaccurate jury instruction requiring conviction if self-defense was not proven beyond
reasonable doubt “impermissibly shifted the burden on the issue of self-defense from the State
to appellant”).
The charge also generally stated that “the burden of proof is on the State” and that
“[a]ll persons are presumed to be innocent.” Although the Court of Criminal Appeals noted
similar instructions when it determined that a trial court did not err by failing to include an
instruction that the State had to disprove self-defense beyond a reasonable doubt, the Court
primarily emphasized that the charge did include an instruction directing the jury to acquit if they
believed the defendant was acting in self-defense or if they “had a reasonable doubt thereof.”
See Luck, 588 S.W.2d at 375. There is no similar instruction here. Moreover, neither the burden
nor the presumption instructions were linked to self-defense. Additionally, the charge included
more specific instructions pertaining to those concepts that linked them to the elements of the
charged offense. Specifically, the charge stated that no person can be convicted of an offense
“unless each element of the offense is proved beyond a reasonable doubt,” that the State “has the
burden of proving the Defendant guilty and . . . must do so by proving each and every element of
the charged offense beyond a reasonable doubt,” and that if the State failed “to do so,” the jury
“must acquit the Defendant.”
The charge also included an arguably more broadly worded reasonable-doubt
instruction imbedded between the instructions above. That instruction stated that “[t]he
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 careful and impartial
consideration of all the evidence in the case.” The Court of Criminal Appeals has determined
that paragraphs containing these types of instructions “apply to the elements of the State’s
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case, not to confession-and-avoidance types of defensive issues such as self-defense.” Allen,
253 S.W.3d at 265. “They do not amount to an abstract instruction that any reasonable doubt as
to a defensive issue must be resolved in the appellant’s favor.” Id.
For these reasons, we must conclude that the entirety of the charge “does not
ameliorate the deficiency” in the self-defense instructions and that this factor weighs in favor of
egregious harm. See id. (“Nothing in the balance of the jury instructions inspires confidence that
the jury would somehow glean that it must acquit the appellant in the event it should have
a reasonable doubt with respect” to her asserted defense, “despite the deficiency in the . . .
instruction.”); see also Alcoser v. State, 663 S.W.3d 160, 169 (Tex. Crim. App. 2022) (“When
self-defense is law applicable to the case, the trial court must inform the jury under what
circumstances it should acquit a defendant of an offense based on self-defense.”). But see
Johnson v. State, No. 01-15-00101-CR, 2016 WL 4536954, at *9 (Tex. App.—Houston
[1st Dist.] Aug. 30, 2016, pet. ref’d) (mem. op., not designated for publication) (determining that
entirety of charge weighed against egregious harm from omission of instruction requiring
acquittal if jury had reasonable doubt about defense).
Arguments of Counsel
In the last portion of his closing, Brador commented on the State’s burden
concerning self-defense by stating as follows: “And once we raised self-defense it is now on the
State to show that self-defense was not justified in this instance.” However, he did not explain
that the jury should acquit if it had a reasonable doubt about whether self-defense applied or that
the State had to disprove self-defense beyond a reasonable doubt. See Allen, 253 S.W.3d at 266
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(noting that defense counsel argued that “the State carried the ‘onerous burden’ to explain” why
defense did not apply and that “defenses have to be disproved beyond a reasonable doubt”).
Similarly, in its closing argument, the State did not inform the jury that it should
acquit Brador if it had a reasonable doubt about whether self-defense applied or that the State
had the burden of disproving self-defense. The State emphasized that it had the burden to prove
the occurrence of the offense and went over the evidence it presented to help establish the
elements of the offense, but it also made arguments seemingly indicating that Brador had the
burden to prove self-defense. See Whiting v. State, 797 S.W.2d 45, 48 (Tex. Crim. App. 1990)
(explaining that it was error for State to make misstatements regarding “the burden of proof on
the issue of self-defense” by telling jury that State had to prove only elements of charged
offense); see also Torres v. State, 751 S.W.2d 705, 707 (Tex. App.—Corpus Christi-Edinburg
1988, pet. ref’d) (“Since a defense of self-defense requires the accused to admit the commission
of the offense, proof merely that appellant intentionally or knowingly killed his victim will not
suffice to prove that the act was not done in self-defense.”). After talking about self-defense
generally in its first closing argument, the State put the burden of proving that defense on Brador,
arguing, “[W] don’t have that here. . . . We don’t have proof from the defendant that he was
attacked first.” In its rebuttal, the State again gave the impression that Brador was required to
prove self-defense: “So this self-defense argument that they’re trying to put forward you guys,
makes no sense.” (Emphasis added.) While making statements indicating that Brador had the
burden to prove self-defense, the State emphasized that he did not provide any photos or videos
“to prove self-defense” despite having years “to gather that evidence.”
Moreover, Brador’s “case relating to the offense itself centered on the
complainant’s propensity for violence and whether the appellant’s conduct was reasonable under
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the circumstances given the complainant’s actions.” See Mendez v. State, 515 S.W.3d 915, 927
(Tex. App.—Houston [1st Dist.] 2017), aff’d by 545 S.W.3d 548 (Tex. Crim. App. 2018). And
nothing in the parties’ arguments clarified when the jury should acquit based on that defense.
See Russell, 834 S.W.2d at 82 (determining that there was harm from omission of instruction
directing jury to acquit if it had reasonable doubt as to self-defense because there was sufficient
evidence to raise issue of self-defense and because arguments of counsel did not explain that jury
must acquit if it had reasonable doubt regarding self-defense).
In light of the preceding, we conclude that the arguments of counsel did not help
to ameliorate the jury-charge error and that this factor also weighs in favor of egregious harm.
See id.; see also Scott, 2024 WL 445942, at *6 (noting that arguments concerning State’s burden
to prove guilt beyond reasonable doubt did not refer to burden to prove or disprove self-defense,
which was “the burden at issue”). But see Johnson, 2016 WL 4536954, at *11-12 (determining
that parties’ arguments did not weigh in favor of egregious harm where defendant’s attorney
extensively argued self-defense and applied it to facts of case).
Entirety of the Evidence
As set out above, Brador admitted to shoving Soat and thereby causing her
injuries. See Botello v. State, No. 04-01-00262-CR, 2002 WL 662155, at *2 (Tex. App.—
San Antonio Apr. 24, 2002, no pet.) (op., not designated for publication) (concluding that
admission that defendant pushed wife during fight was sufficient to raise self-defense). However,
“there was conflicting evidence on the ‘hotly disputed’ evidence of self-defense.” See Mendez,
515 S.W.3d at 927 (quoting Burd v. State, 404 S.W.3d 64, 73 (Tex. App.—Houston [1st Dist.]
2013, no pet.)). Brador testified that Soat was controlling and would become violent when
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drinking alcohol and would assault him. He also gave testimony concerning incidents of alleged
abuse by her and explained that she was arrested for one of those incidents.
Regarding the night in question, Brador explained that Soat was very intoxicated
when he arrived at her apartment, that she was stumbling, that she became upset after he arrived,
that he tried to leave, that she pushed him against a wall, that she punched his chest and head,
that he shoved her to get her off him, that she stumbled, and that she hit the edge of the kitchen
island. One of the investigating officers testified that Soat’s injuries could have been caused by
her head hitting the edge of an object, and the paramedics’ report reflected that Soat was not in
any apparent distress. The only injury listed in the medical records admitted into evidence was
the laceration to Soat’s nose. Moreover, Brador explained that he tried to help her after he
noticed the injury but that he left because she kept threatening him. He testified that she later
admitted to him that she decided to call the police because he left her apartment.
Additionally, a recording of a subsequent interaction between Brador and Soat
was admitted into evidence and showed her preventing him from leaving her apartment,
attempting to grab his phone, violently grabbing and holding on to various parts of his body, and
attempting to pull him down to the ground. On the video, he also exclaimed that she bit him.
Two individuals who knew Brador and Soat testified that Soat was an aggressive person, and one
of the individuals also testified that Soat had a reputation for violence at bars. See id. (noting
that “[a]ppellant’s self-defense theory did not rest solely upon his own testimony” and that it also
relied on testimony from witnesses explaining that alleged victim had reputation for acting
violently). Although evidence concerning other possible explanations was admitted, one of the
responding officers testified that Soat seemed to be altered by an intoxicating substance when the
police arrived. A recording of her interaction with the police admitted into evidence showed that
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she had difficulty maintaining her focus and described herself as not being on any drugs that
would keep her from telling the truth. She admitted to going out and drinking that night and told
the officers she took a mood stabilizer, which she was not supposed to take with alcohol.
In contrast, the State presented evidence through Soat’s testimony that Brador
became aggressive when she told him to leave her apartment, grabbed her by her neck and head,
and slammed her head onto the kitchen island. Additionally, she related that he left the
apartment after the incident. Moreover, she explained that her nose was fractured during the
incident and that she had to get stitches for the laceration on her nose. She denied hitting him or
otherwise touching him before he assaulted her. Further, she told the 911 operator, the
paramedic, and the responding police officers that Brador slammed her head onto the kitchen
island. The paramedic testified that her injuries were consistent with the described assault.
Additionally, one of the responding officers and the paramedic testified that Soat did not have
any issues with her balance shortly after the alleged assault. Photos and the recording of her
interaction with the police showed that there was dried blood on her face and in her apartment.
Moreover, Soat testified regarding an earlier incident in March 2021 in which
Brador assaulted her. She related that he dragged her by the hair and placed her in a chokehold.
A recording of a 911 call made by a neighbor captured the neighbor saying that a fight had
occurred and that a woman had been hit. Photos of Soat shortly after the incident showed
abrasions on her back and arms. Brador admitted that he was arrested following this incident
and that the charge was still pending.
“[B]ecause of the conflicting evidence on the self-defense issue, this factor also
weighs in favor of finding egregious harm.” Id. at 928; see Johnson, 2016 WL 4536954, at *11
(concluding that this factor did not weigh in favor of egregious harm where no evidence
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corroborated defendant’s testimony that he acted in self-defense); see also Scott, 2024 WL
445942, at *5 (rejecting claim that evidence factor weighed against finding of egregious harm
because it was impossible to determine whether jury convicted because it disbelieved appellant’s
version or instead convicted because it concluded that appellant failed to prove self-defense as
erroneously instructed in charge); Torres v. State, No. 08-12-00096-CR, 2014 WL 4639401,
at *5 (Tex. App.—El Paso Sept. 18, 2014, pet. ref’d) (op., not designated for publication)
(determining in case in which defendant claimed he pushed victim away after she slapped him
that there was egregious harm from error in self-defense instruction, in part, because “[t]he jury
was required to determine the credibility of the witnesses and resolve these conflicts in the
evidence in light of the erroneous instruction which required the jury to reject Appellant’s claim
of self-defense if he failed to prove it” and because “the charge did not permit the jury to acquit
Appellant if they had a reasonable doubt as to whether he acted in self-defense”).
Remainder of the Record
The record does not reference any jury notes asking about how to apply the law of
self-defense to the facts of this case or about when the defense should result in an acquittal.
During voir dire, the trial court instructed the panel members that the State had to “prove all
elements for a conviction” but did not discuss self-defense. Like the trial court, both the State
and Brador explained to the panel that the State’s burden was beyond a reasonable doubt but
limited those discussions to the elements of the offense. The State mentioned self-defense by
stating that “[n]ow it is possible, right, that a defendant may have a defense in certain instances,”
but seemed to place the burden of proving the defense on the defendant by stating that “there are
certain things that must be met in order to meet and show this defense of self-defense.” Neither
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party discussed how juries should acquit defendants if they have a reasonable doubt about
whether the defendants acted in self-defense.
Accordingly, we conclude that this factor is either neutral or weighs in favor of a
finding of egregious harm.
Self-defense was a vital defensive issue in this case, for which the burden of proof
was never sufficiently explained to the jury, whether in the charge or elsewhere. The error in
the charge “was not clarified by the jury arguments.” See Mendez, 515 S.W.3d at 928. The
evidence pertaining to the vital defense was hotly contested. See id. Accordingly, after
considering the relevant factors, we conclude that the charge error egregiously harmed Brador by
vitally affecting his defensive theory. See id.
For these reasons, we sustain Brador’s first issue on appeal. Because we have
sustained his first issue, we need not address his remaining appellate issues. See Tex. R. App.
P. 47.1.
CONCLUSION
Having sustained Brador’s first issue, we reverse the trial court’s judgment of
conviction and remand the case for further proceedings consistent with this opinion.
__________________________________________
Karin Crump, Justice
Before Chief Justice Byrne, Justices Crump and Ellis
Reversed and Remanded
Filed: November 14, 2025
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