TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-24-00654-CR
Randall Jackson, III, Appellant
v.
The State of Texas, Appellee
FROM THE 27TH DISTRICT COURT OF BELL COUNTY
NO. 78084, THE HONORABLE JOHN GAUNTT, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found Randall Jackson, III, guilty of aggravated assault against a public
servant. See Tex. Penal Code § 22.02(b)(2)(B). The trial court found an enhancement allegation
true and assessed punishment at twenty-five years in prison. Appellant contends that the trial
court erred by failing to instruct the jury on self-defense. See Tex. Penal Code § 9.31 (a), (c).
We will affirm the judgment.
BACKGROUND
Police in Temple received a report that a black man with a knife had threatened
people at a shelter then walked toward the Salvation Army. Temple Police Department (TPD)
Officer Koneferenisi Aumua responded in his patrol car and saw Appellant, who matched at least
three of four descriptors given in the dispatch. Aumua testified that as he drove by the Salvation
Army Appellant looked “right at [him] and [his] patrol vehicle and then started running.” Finding this behavior suspicious, Aumua made a U-turn to follow Appellant. He next saw
Appellant apparently trying to break in the door of a duplex. Aumua stopped his car and chased
Appellant on foot. Aumua said he yelled at Appellant to stop but Appellant ignored him.
TPD Officer Milton Parker joined the foot chase and was closer to Appellant than
Aumua. Parker and Aumua were both in uniform. A third officer, Travis Wolfe, also responded
and joined the chase as it proceeded down an alley; Wolfe was wearing a bulletproof vest over
plain clothes. Parker testified that, because Appellant reportedly had a knife and began reaching
for something, Parker radioed that Appellant was “reaching.” Parker said he kept some distance
to avoid being stabbed and used his taser instead of tackling Appellant. The taser either missed
or was ineffective. Appellant turned from what Parker testified was about fifteen to twenty feet
and fired a shot that Parker said was “in my face” and that Wolfe testified went “right past my
head.” Wolfe testified that he felt his life was in danger and prepared to shoot Appellant but
Aumua got in the way. Aumua and Parker returned fire. Appellant then barricaded himself
inside an unoccupied house, and a SWAT team responded. Wolfe took a position with a sniper
rifle and watched Appellant as others negotiated with Appellant. Wolfe testified that he did not
shoot Appellant because there was no ongoing threat and police were trying to save his life.
Several hours later, Appellant surrendered and was arrested.
Appellant was taken to a hospital for treatment for teargas inhalation. His mother
and TPD Detective Justin McCormick rode with him in the ambulance. McCormick’s body
camera video from the ambulance ride showed that Appellant told his mother he ran because he
wanted to avoid a violent confrontation with police. He did not know why police were chasing
him. He asked, “What am I to do?” after seeing one officer pull a taser and another officer pull a
gun. He said the only thing he could do was lift his shirt up, pull his gun out, take the safety off,
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“put one in,” and fire the weapon. He also said he ran so he could get rid of “his stuff”—
marijuana and a handgun—without the police seeing him dispose of those items. He said he did
not pose a threat to the officers because he was running away. Appellant said he feared that
police would eventually swarm the house and kill him.
TPD Detective Ashley Cunningham testified that she believed that Appellant was
not the person who was originally reported as threatening people at the food shelter with a knife.
APPLICABLE LAW
We review alleged jury charge error in two steps: first, we determine whether
error exists; if so, we then evaluate whether sufficient harm resulted from the error to require
reversal. Bluntson v. State, 728 S.W.3d 87, 142 (Tex. Crim. App. 2025); Ngo v. State,
175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Because Appellant’s complaint about jury-charge
error was preserved in the trial court, “reversal is required if there was some harm to the
defendant.” Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016).
“A defendant is entitled to an instruction on any defensive issue raised by the
evidence, whether that evidence is weak or strong, unimpeached or uncontradicted, and
regardless of how the trial court views the credibility of the defense.” Celis v. State, 416 S.W.3d
419, 430 (Tex. Crim. App. 2013) (citing Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App.
2008)). A defendant “‘bears the burden of production’ with respect to a defense,” Shaw v. State,
243 S.W.3d 647, 657 (Tex. Crim. App. 2007) (quoting Zuliani v. State, 97 S.W.3d 589, 594
(Tex. Crim. App. 2003)), and “[t]he issue of the existence of a defense is not submitted to the
jury unless evidence is admitted supporting the defense,” Kuhn v. State, 393 S.W.3d 519, 532
(Tex. App.—Austin 2013, pet. ref’d) (quoting Tex. Penal Code § 2.03(c)); see Walters v. State,
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247 S.W.3d 204, 208–09 (Tex. Crim. App. 2007) (discussing when defendant is entitled to jury
instruction on defensive issue); Shaw, 243 S.W.3d at 657 (describing “burden of production” as
“burden of making a prima facie case”).
“[A] defense is supported (or raised) by the evidence if there is some evidence,
from any source, on each element of the defense that, if believed by the jury, would support a
rational inference that that element is true.” Shaw, 243 S.W.3d at 657–58; see Juarez v. State,
308 S.W.3d 398, 404 (Tex. Crim. App. 2010) (“The defendant bears the burden of showing that
each element of the defense has been satisfied.”). The court views the evidence in the light most
favorable to the defendant’s requested jury instruction, Jordan v. State, 593 S.W.3d 340, 343
(Tex. Crim. App. 2020), and must rely “on its own judgment, formed in the light of its own
common sense and experience, as to the limits of rational inference from the facts proven,”
Shaw, 243 S.W.3d at 658. If the evidence fails to raise every element of a defensive issue, the
trial court may refuse to grant an instruction requested by the defendant. See Muniz v. State,
851 S.W.2d 238, 254 (Tex. Crim. App. 1993); Morganfield v. State, 696 S.W.3d 194, 197 (Tex.
App.—San Antonio 2024, no pet.); Stefanoff v. State, 78 S.W.3d 496, 500 (Tex. App.—Austin
2002, pet. ref’d).
Entitlement to a self-defense instruction relies on evidence that the user
reasonably believed such force was necessary. Generally, “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.” Id.
§ 9.31(a). Merely fleeing an officer is not force directed against an officer that constitutes
resisting arrest. See Leos v. State, 880 S.W.2d 180, 184 (Tex. App.—Corpus Christi–Edinburg
1994, no pet.). In the context of resisting an arrest that an actor “knows is being made by a peace
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officer” even if the arrest is “unlawful,” Tex. Penal Code § 9.31(b)(2), the resistor’s use of force
is not justified unless:
(1) if, before the actor offers any resistance, the peace officer (or person acting at his
direction) uses or attempts to use greater force than necessary to make the arrest or
search; and
(2) when and to the degree the actor reasonably believes the force is immediately
necessary to protect himself against the peace officer’s (or other person’s) use or
attempted use of greater force than necessary.
Id. § 9.31(c); Lopez v. State, 600 S.W.3d 43, 45 (Tex. Crim. App. 2020) (discussing court’s
construction of statute’s “plain meaning” and explaining that if reasonably possible court
construes “each word, phrase, clause, and sentence” in context and “according to the rules of
grammar and common usage”); Lang v. State, 561 S.W.3d 174, 179–80 (Tex. Crim. App. 2018)
(explaining that courts ordinarily give effect to plain meaning when interpreting statutes).
Appellant’s use of deadly force requires additional proof. “A person is justified in
using deadly force against another: (1) if the actor would be justified in using force against the
other under Section 9.31 [of the Texas Penal Code] and (2) when and to the degree the actor
reasonably believes the deadly force is immediately necessary: (A) to protect the actor against
the other’s use or attempted use of unlawful deadly force . . . .” Tex. Penal Code § 9.32(a).
A peace officer is justified in using force against another when and to the degree
the actor reasonably believes the force is immediately necessary to make or assist in the making
of an arrest. Id. § 9.51(a). A threat to use deadly force by production of a weapon is not the use
of deadly force so long as the actor’s purpose was limited to creating an apprehension that he
will use deadly force if necessary. Id. § 9.04.
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DISCUSSION
By his sole issue on appeal, Appellant complains of the trial court’s refusal to
instruct the jury on self-defense. He contends that, before he resisted a peace officer’s effort to
detain him, the peace officer used or attempted to use greater force than necessary to make the
arrest. He contends that he believed his resistance and the force of his resistance were
immediately necessary to protect himself against the peace officer’s use or attempted use of
greater force than necessary, including deadly force. He contends that his belief was reasonable
and that there was some evidence of his state of mind from his statements to his mother in
the ambulance.
Appellant was entitled to a self-defense instruction only if evidence justified his
undisputed use of deadly force against the officers. The undisputed evidence establishes that the
officers leading the chase were in uniform, that the third officer (Wolfe) pulled his gun only after
Appellant fired, and that Appellant’s use of force against Officer Parker was the deadly force of
a bullet fired at them. To justify this force, Appellant was required to show that the officers used
or attempted to use unlawful deadly force against him first. See Tex. Penal Code § 9.32(a). The
record contains no such evidence. The record shows that the officers were asked to look for a
man who had threatened people with a knife. Aumua saw Appellant, who matched three of four
descriptors and fled on foot after seeing Aumua. Aumua and others chased Appellant on foot,
Parker ineffectively used a taser, and Aumua pulled his handgun before Appellant fired at them.
The chase itself was not a use of greater force than necessary or the use or
attempted use of unlawful deadly force. “‘Deadly force’ means force that is intended or known
by the actor to cause, or in the manner of its use or intended use is capable of causing, death or
serious bodily injury.” Id. § 9.01. The chase occurred in the city of Temple in public areas,
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walkways, and an alley. It began when Appellant moved away from Aumua, and there is no
indication that Appellant was endangered by the act of running. There is no evidence that the
chase in this case constituted greater force than necessary or unlawful deadly force or the
attempted use thereof.
There is no evidence that the taser was greater force than necessary or the use or
attempted use of deadly force. While a taser can be used to cause serious bodily injury or death, 1
here, there is no evidence that the taser caused any physical effect whatsoever on Appellant.
There is no evidence that the use of the taser in this case was the use of greater force than
necessary or the use or attempted use of unlawful deadly force. See Navarro v. State,
649 S.W.3d 603, 621 n.2 (Tex. App.—Houston [1st Dist.] 2022) (noting that tasing was no
evidence of excessive force when defendant who disobeyed officer’s commands and resisted
handcuffing could not testify how often he was tased except “more than once”), aff'd on other
grounds, 726 S.W.3d 436 (Tex. Crim. App. 2025).
Further, Aumua’s pulling out of his handgun was not evidence of the use of
greater force than necessary or the use or attempted use of unlawful deadly force. Consistent
with the statutory provision that a threat to cause death or serious bodily injury by the production
of a weapon does not ordinarily constitute the use of deadly force, so long as the intent is limited
to creating an apprehension that force will be used only if necessary, see Tex. Penal Code § 9.04,
the First District Court of Appeals has held, “One may not assume that the threatened use of
force by a peace officer will become more than a threat or that the use of such force will be
1 See Moody v. State, No. 01-03-00685-CR, 2004 WL 1472216, at *3 n.1 (Tex. App.— Houston [1st Dist.] July 1, 2004, no pet.) (mem. op., not designated for publication) (noting testimony that “under the proper circumstances, a stun gun can cause death, broken bones, pulled tendons, blindness, or seizures”).
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greater than necessary to effect an arrest.” Porteous v. State, 259 S.W.3d 741, 748 (Tex. App.—
Houston [1st Dist.] 2007), pet. dism’d improvidently granted, 253 S.W.3d 288 (Tex. Crim. App.
2008). In Porteous, an officer approached the defendant’s car, identified himself as a police
officer, and instructed the defendant to show his hands. Id. at 748. When the defendant did not
respond, the officer pulled out his firearm in a “low ready position.” Id. The defendant shot the
officer three times. Id. Though the defendant told a witness that he feared the officer was going
to shoot him, he presented no evidence that the officer used greater force than necessary to arrest
him. Id. The court of appeals affirmed the trial court’s refusal to instruct the jury on
self -defense to the offense of attempted capital murder of a police officer and aggravated
assault. Id. Here, there is no evidence that Aumua or any other officer aimed or otherwise
attempted to use his firearm against Appellant before Appellant fired at them. See Tex. Penal
Code § 9.31(c)(1) (providing that use of force to resist is justified “if, before the actor offers any
resistance, the peace officer . . . uses or attempts to use greater force than necessary” (emphasis
added)); Navarro v. State, 726 S.W.3d 436, 455 (Tex. Crim. App. 2025) (“limited right to
resistance” under Section 9.31(c) is denied “if the person being arrested resisted first”). There is
no evidence that the police used greater force than necessary against Appellant.
Appellant said in the ambulance that he feared that police would eventually
swarm the house and kill him, but that describes his fear of their conduct after he shot at the
officers. His fears after using deadly force against the officers are not evidence to justify his
previous use of deadly force against them.
Appellant argues on appeal that he responded to “police violence with his own
only after he was targeted by a TASER. A reasonable inference may be made that [Appellant]
not only feared being tased again but also anticipated a higher likelihood of being shot by
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pursuers wielding guns.” But the reasonableness of Appellant’s state of mind prompting him to
use deadly force against the officers matters only if police used greater force than necessary first
—here, a use or attempted use of unlawful deadly force against him. See id. §§ 9.31(c)(1),
9.32(a)(2)(A). And, as held in Porteous, Appellant was not entitled to presume that the mere
threatened use of force will transform into something more for purposes of the self-defense
instruction. See 259 S.W.3d at 748.
Even when viewed most favorably to Appellant, there is no evidence that the
officers used or attempted to use greater force than necessary on him before he fired his gun at
Officer Parker. Because there is no evidence of an essential element of his defense, Appellant
was not entitled to an instruction on the justification of his use of deadly force in self-defense in
resisting an arrest or search. See Tex. Penal Code §§ 9.31(c), 9.32(a); Muniz v. State,
851 S.W.2d 238, 254 (Tex. Crim. App. 1993). The trial court did not err by denying the
requested instruction.
CONCLUSION
We overrule Appellant’s issue and affirm the judgment.
Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Kelly and Ellis
Affirmed
Filed: October 9, 2026
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