## Facts

- Anthony Randolph Ferrel sat at a bar in Houston while William Patrick McManus, heavily intoxicated, spoke with bartenders and lingered near Ferrel.
- A verbal exchange began after a mistaken reference to “Randy”; Ferrel testified McManus insulted Ferrel and his family and used profanity.
- Ferrel testified he turned on his barstool and ended up backed against a bar rail with McManus standing close in front of him.
- Ferrel struck McManus in the mouth with a full beer bottle.
- McManus fell backward, hit his head on the floor, and died at the scene.
- Expert testimony indicated the fatal hemorrhage could have been caused by the bottle impact or by the head injury from the fall (or both).
- A jury convicted Ferrel of aggravated assault; the trial court denied requested jury instructions on self-defense and on the lesser-included offense of misdemeanor assault.
- The court of appeals reversed for failure to give a self-defense instruction; the State sought discretionary review.

## Issues

1. Whether Ferrel was entitled to a self-defense instruction based on use of force under Texas law when the evidence showed insults, proximity, and anger but no clear attempted or actual strike by McManus.
2. Whether Ferrel was entitled to an instruction on the lesser-included offense of misdemeanor assault where he struck McManus with a full beer bottle and serious bodily injury resulted.

## Decision

- The Texas Court of Criminal Appeals reversed the court of appeals and reinstated the conviction and sentence.
- The court held Ferrel was not entitled to a self-defense instruction because the evidence did not raise a fact issue that he reasonably believed force was immediately necessary to protect himself from McManus’s use or attempted use of unlawful force.
- The court held Ferrel was not entitled to a misdemeanor-assault lesser-included instruction because the evidence did not permit a rational finding that, if guilty, he was guilty only of misdemeanor assault rather than aggravated assault.

## Legal Principles

- A defendant is entitled to a self-defense instruction only if there is some evidence supporting the statutory elements, including a reasonable belief that force was immediately necessary to protect against another’s use or attempted use of unlawful force.
- Verbal provocation, intoxication, and close proximity—without evidence of an imminent physical attack—do not, by themselves, raise a jury issue requiring a self-defense instruction.
- A lesser-included offense instruction is required only when (1) the lesser offense is included within the charged offense and (2) some evidence would allow a rational jury to find the defendant guilty only of the lesser offense.
- When the manner of the assault and the resulting serious bodily injury support aggravated assault, the record may not support a rational misdemeanor-only verdict, and the lesser-included instruction may be denied.

## Conclusion

The Texas Court of Criminal Appeals held that the record did not raise self-defense and did not provide an evidentiary basis for a misdemeanor-assault lesser-included verdict, so the trial court properly refused both instructions and the aggravated-assault conviction was reinstated.


Ferrel v. State, 55 S.W.3d 586 (Tex. Crim. App. 2001)