Opinion
No. 05-06-00107-CR
Opinion Filed January 8, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 2 Dallas County, Texas, Trial Court Cause No. F04-58572-PI.
Before Chief Justice THOMAS and Justices FITZ GERALD and FRANCIS.
OPINION
A jury convicted appellant of murder and assessed punishment at fifty years' imprisonment. In one point of error, appellant contends the trial court erred by failing to include in the jury charge an instruction applying the law of self-defense to the lesser included offense of manslaughter. We affirm. On November 22, 2004, appellant and Roderick Hardman got into a fight. Although there was conflicting evidence about the extent of appellant's injuries, Hardman was the winner of the altercation. Shortly after the fight was over, appellant shot Hardman in the mouth, killing him. Appellant testified he shot Hardman in self-defense. The jury charge included instructions on both murder and manslaughter, but applied the law of self-defense only to murder. Appellant's only contention on appeal is the trial court erred by failing to apply the law of self-defense to the lesser included offense of manslaughter. When reviewing a complaint about the charge, we determine if error actually exists in the charge and, if we find error, whether it harmed appellant. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g). We use different standards for analyzing error in the charge, depending on whether the defendant objected at trial. Olivas v. State, 202 S.W.3d 137, 143-44 (Tex.Crim.App. 2006); Almanza, 686 S.W.2d at 731-32. If the defendant preserved error by objecting, we analyze for actual harm. However, if the defendant did not object, we will reverse for the charge error only if the record shows egregious harm to the defendant. Olivas, 202 S.W.3d at 144 (citing Almanza, 686 S.W.2d at 171). T he trial court included in the first draft of the charge instructions on murder and self-defense. Appellant objected to the language of the self-defense instruction and requested an instruction on the lesser included offense of manslaughter. After the charge was revised by the trial court, appellant again objected to the self-defense instruction as to murder and requested the trial court instruct the jury the State was required to disprove self-defense beyond a reasonable doubt. Appellant did not object to the trial court's failure to apply the law of self-defense to the lesser included offense of manslaughter. Therefore, appellant must demonstrate egregious harm. See Barrera v. State, 982 S.W.2d 415, 416 (Tex.Crim.App. 1998). Assuming, without deciding, that the trial court erred in failing to apply self-defense to the manslaughter charge, appellant has failed to demonstrate egregious harm. To cause egregious harm, the error must affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. Almanza, 686 S.W.2d at 172. We review the entire record to determine if appellant suffered actual, not theoretical, harm. Id. at 171. We consider the entire jury charge; the state of the evidence, including the contested issues and the weight of the probative evidence; arguments of counsel; and any other relevant information revealed by the record of the trial as a whole. Olivas, 202 S.W.3d at 144; Almanza, 682 S.W.2d at 171. The trial court applied the law of self-defense to murder. By convicting appellant of murder, the jury impliedly rejected appellant's self-defense theory. Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). Further, the jury was instructed to consider manslaughter only if it acquitted appellant of murder. Accordingly, the conviction for murder nullified "any possible harm that may have derived from the defective [manslaughter] instruction." Saunders v. State, 913 S.W.2d 564, 569 (Tex.Crim.App. 1995); see Starks v. State, 127 S.W.3d 127, 133 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd, untimely filed) (although defendant was entitled to self-defense instruction for lesser included offense, error was harmless because jury did not reach issue after convicting defendant on greater offense). We overrule appellant's sole point of error and affirm the conviction.