Joseph Bebout West, Jr. v. the State of Texas

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-25-00139-CR

JOSEPH BEBOUT WEST, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 1
Gregg County, Texas
Trial Court No. 2024-1026

Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice van Cleef
MEMORANDUM OPINION

A Gregg County jury found Appellant, Joseph Bebout West, Jr., guilty of assault, family

violence, and the trial court sentenced him to one year of incarceration. See TEX. PENAL CODE

ANN § 22.01(a)(1). West argues that (1) the trial court abused its discretion by denying his

motion for new trial on the basis that he was denied an unbiased jury, and (2) there was jury-

charge error. Because we find that West forfeited his right to complain about the juror and that

there was no jury-charge error, we affirm.

I. Motion for New Trial

We “review[] a trial court’s denial of a motion for new trial for an abuse of discretion.”

Burch v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017). We will “revers[e] only if no

reasonable view of the record could support the trial court’s ruling.” Id. This deferential

standard of review requires us to “view the evidence in the light most favorable to the trial

court’s ruling.” Id. “In determining whether the trial court abused its discretion, [we] must not

substitute [our] own judgment for that of the trial court, and [we] must uphold the trial court’s

ruling if it is within the zone of reasonable disagreement.” Id.; Hicks v. State, 606 S.W.3d 308,

314–15 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d) (citing Colyer v. State, 428 S.W.3d

117, 122 (Tex. Crim. App. 2014) (“We do not substitute our judgment for that of the trial court;

rather, we decide whether the trial court’s decision was arbitrary or unreasonable.” (quoting

Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006)))).

As our sister court in Hicks explained,

The Sixth Amendment guarantees the assistance of counsel and the right to a trial
before an impartial jury. Franklin v. State, 138 S.W.3d 351, 354 (Tex. Crim.
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App. 2004); Linnell v. State, 935 S.W.[2]d 426, 428 (Tex. Crim. App. 1996); see
U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed . . . and to have the Assistance of
Counsel for his defence.”). Part of this constitutional guarantee includes
“adequate voir dire to identify unqualified jurors.” Franklin, 138 S.W.3d at 354
(citing Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492
(1992)). The Court of Criminal Appeals has also “consistently held that essential
to the Sixth Amendment guarantees of the assistance of counsel and trial before
an impartial jury ‘is the right to question veniremembers in order to intelligently
exercise peremptory challenges and challenges for cause.’” Id. (quoting Raby v.
State, 970 S.W.2d 1, 10 (Tex. Crim. App. 1998) (Baird, J., concurring and
dissenting)). “The voir dire process is designed to insure, to the fullest extent
possible, that an intelligent, alert, disinterested, impartial, and truthful jury will
perform the duty assigned to it.” Armstrong v. State, 897 S.W.2d 361, 363 (Tex.
Crim. App. 1995) (per curiam).

Hicks, 606 S.W.3d at 315. The Houston court went on to explain,

With the exception of the second, third, and fourth challenges for cause listed in
article 35.16—that the prospective juror has been convicted of misdemeanor theft
or a felony; the prospective juror is under indictment or other accusation for
misdemeanor theft or a felony; and the prospective juror is insane—the remaining
challenges for cause are not absolute disqualifications. See Webb v. State, 232
S.W.3d 109, 112 (Tex. Crim. App. 2007) (addressing article 35.16(a)(7),
concerning prospective juror’s service on grand jury that returned indictment
against defendant); Vera v. State, 496 S.W.3d 293, 295 (Tex. App.—San Antonio
2016, pet. ref’d) (“With the exception of three specific grounds for
disqualification, the disqualification grounds listed in article 35.16 may be
waived.”); see also TEX. CODE CRIM. PROC. ANN. art. 35.19 (entitled
“absolute disqualification” and providing that, even if parties agree, prospective
juror may not be impaneled if subject to second, third, or fourth challenges listed
in article 35.16). “All grounds for challenge for cause may be forfeited,” and a
challenge for cause “is forfeited if not made.” Webb, 232 S.W.3d at 112. A
party’s failure to question the prospective jurors on that subject “constitutes a
forfeiture of the right to complain thereafter.” Id.; Ex parte Perez, 525 S.W.3d
325, 339 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (stating that “challenge
to a juror based on a non-absolute disqualification, such as county residence, is a
forfeitable right, not a waivable right” and all party has to do forfeit such
challenge is “remain silent”); Vera, 496 S.W.3d at 295 (“[W]ith three exceptions
not applicable here, the failure to make a timely objection to a juror’s

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qualifications under article 35.16 waives the right to challenge those
qualifications.”).

Hicks, 606 S.W.3d at 316–17 (alteration in original).

“[D]efense counsel has an obligation to ask questions calculated to bring out that

information which might be said to indicate a juror’s inability to be impartial and truthful.”

Armstrong, 897 S.W.2d at 363–64. Without defense counsel asking such questions, the juror did

not withhold any information. See Hicks, 606 S.W.3d at 317; Armstrong, 897 S.W.2d at 364; see

also Franklin, 138 S.W.3d at 355–56 (“Under Texas law, the defendant must show that the juror

withheld material information during voir dire, and the information is withheld despite due

diligence exercised by the defendant.” (emphasis added)); Gonzales v. State, 3 S.W.3d 915, 916–

17 (Tex. Crim. App. 1999) (noting “that error occurs where ‘a prejudiced or biased juror is

selected without fault or lack of diligence on the part of defense counsel, such counsel acting in

good faith on the juror’s responses and having no knowledge of their inaccuracy’” (quoting

Brandon v. State, 599 S.W.2d 567, 577 (Tex. Crim. App. 1979))); White v. State, 181 S.W.3d

514, 518 (Tex. App.—Texarkana 2005), aff’d, 225 S.W.3d 571 (Tex. Crim. App. 2007)

(considering whether defense counsel “used due diligence in eliciting the withheld information

omitted by the juror or jurors during voir dire”).

“There is a ‘necessity’ that defense counsel ‘ask during voir dire all of the relevant

statutory questions to determine whether a juror may be disqualified.’” Hicks, 606 S.W.3d at

317–18 (quoting Webb, 232 S.W.3d at 113 (citing Stillwell v. State, 466 S.W.3d 908, 913 (Tex.

App.—Fort Worth 2015, no pet.) (“stating that attorneys have duty ‘to determine capability or

fitness of the jurors during voir dire’”))). “During voir dire, counsel should specifically cover all
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of the grounds for challenges for cause listed in article 35.16 before counsel ‘could be held to

have used due diligence in determining the applicable challenges for cause.’” Id. at 318 (quoting

Webb, 232 S.W.3d at 114 (citing Ashton v. State, 526 S.W.3d 490, 497 (Tex. App.—Houston

[1st Dist.] 2017, pet. ref’d) (“Defense counsel must also ask specific questions, and cannot rely

on broad ones, to satisfy this due diligence obligation.”))).

West argues that the trial court clearly abused its discretion in denying his motion for

new trial after he presented evidence to the trial court that a member of the jury, juror number

six, was the Mayor of the City of Longview, Texas. According to his argument, West believes

that “the position of [M]ayor of the City of Longview is a State-enabled and sanctioned official,

there remains with that official an inherent, a priori, interest, [i]n the State prevailing in the

case.”

As it pertains to the juror, during voir dire, defense counsel specifically called upon juror

number six to inquire as to what area of law she worked in as an attorney, which was disclosed in

her questionnaire. Defense counsel posed to the entire panel how many believed that “police

officers like to have their opinions challenged”—to which defense counsel did not receive any

response. Defense counsel also argues that the mayor should have responded when asked, “Who

has the law-enforcement experience that works with police officers?” The State also posited

whether any juror would have trouble considering the testimony of a police officer more or less

credible than an average witness, to which juror number six did not respond.

Here, as in Hicks, there were no specific questions put forward by defense counsel that

would have unveiled juror number six’s position as Mayor of the City of Longview. Because

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there were no questions that would have revealed her position as mayor, we cannot say that juror

number six intentionally withheld that information. Furthermore, a challenge based on Article

35.16(a)(9) of the Texas Code of Criminal Procedure, “[t]hat the juror has a bias or prejudice in

favor of or against the defendant,”1 “must be raised to and addressed by the trial court before the

jury is empaneled and sworn; otherwise, a party forfeits the right to complain of and to rely on

those bases on appeal.” Dorsey v. State, No. 12-25-00134-CR, 2026 WL 775871, at *4 (Tex.

App.—Tyler Mar. 18, 2026, no pet. h.) (mem. op., not designated for publication). We hold that

the trial court did not abuse its discretion in denying West’s motion for new trial. We overrule

West’s first issue.

II. Jury Charge

In his second issue, West argues that “[t]here was Almanza error in the jury charge

because ample evidence of a defensive issue” was presented. See Almanza v. State, 686 S.W.2d

157 (Tex. Crim. App. 1984), superseded on other grounds by rule as stated in Rodriguez v.

State, 758 S.W.2d 787 (Tex. Crim. App. 1988). “We review claims of jury charge error under

the two pronged test set out in Almanza v. State . . . .” Gomez v. State, 459 S.W.3d 651, 660

(Tex. App.—Tyler 2015, pet. ref’d) (citing Almanza, 686 S.W.2d at 171 (op. on reh’g); Kuhn v.

State, 393 S.W.3d 519, 524 (Tex. App.—Austin 2013, pet. ref’d); Swearingen v. State, 270

S.W.3d 804, 808 (Tex. App.—Austin 2008, pet. ref’d)). “We first determine whether error

exists.” Id. (citing Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Swearingen, 270

S.W.3d at 808). “If error exists, we next evaluate the harm caused by the error.” Id. (citing Ngo,

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See TEX. CODE CRIM. PROC. ANN. art. 35.16(a)(9).
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175 S.W.3d at 743; Swearingen, 270 S.W.3d at 808). “The degree of harm required for reversal

depends on whether that error was preserved in the trial court.” Id. (citing Kuhn, 393 S.W.3d at

524). “[W]here no objection is made to charge error, reversal is required only if the error

resulted in ‘egregious harm.’” Id. (citing Neal v. State, 256 S.W.3d 264, 278 (Tex. Crim. App.

2008)).

A. Consent Instruction

West argues on appeal that he was entitled to an instruction on consent in the jury charge.

“The victim’s effective consent or the actor’s reasonable belief the victim consented to the

actor’s conduct is a defense to assault if the conduct did not threaten or inflict serious bodily

injury.” Miller v. State, 312 S.W.3d 209, 212 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d)

(sub. op.) (citing TEX. PENAL CODE ANN. § 22.06(a)(1)). “An accused has the right to an

instruction on any defense raised by the evidence, whether that evidence is weak or strong,

unimpeached or contradicted, and regardless of what the trial court thinks about the credibility of

the evidence.” Id. (citing Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999)). “This rule

was designed to ensure that the jury, not the judge, decides the credibility of the evidence. Id.

(citing Granger, 3 S.W.3d at 38; Woodfox v. State, 742 S.W.2d 408, 409–10 (Tex. Crim. App.

1987)).

“When considering whether an instruction was warranted, we are concerned only with

whether the evidence supports the defense of consent, not whether the evidence is believable.”

Id. (citing Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984)). “If the evidence,

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viewed in a light favorable to the appellant, supports the defense of consent, then an instruction

is required.” Id. (citing Granger, 3 S.W.3d at 38; Dyson, 672 S.W.2d at 463).

B. Evidence of Consent

West and Jamey Bowen, the complainant, were in a romantic relationship for about ten

years at the time of trial. Bowen testified that on March 17, 2024, she called the police to her

home in Longview to report a physical altercation with West. Bowen explained that she and

West got into an argument related to her missing wallet. West began yelling at her, and he got in

her face and was “spitting.” West then “shoved” Bowen onto the base of the bed, and she stated

that she “tr[ied] to get away from him and fight with him.” Bowen was unable to get up because

West was pushing her back down and put a pillow over her face. Bowen stated that she knew

she needed to “get out and get away from him.” Bowen went into the garage and got into her

vehicle, where she was able to call 9-1-1. Bowen also testified to prior times when West became

physical with her by throwing things at her, pouring food on her, and pressing a fork “into [her]

cheek.”

On cross-examination, Bowen agreed that there were times when a possession of hers

seemed to be missing, and she mistakenly accused West of taking or moving the items, only to

later learn that they were misplaced and she would apologize. She also believed that West would

take her things or allow others into their home to take or move her belongings. On the date of

the underlying incident, Bowen stated that her wallet appeared to be missing. She admitted that

it had just been misplaced and said that she apologized to West for getting upset about it being

missing. Bowen agreed that she pushed West but explained that she pushed him out of her space

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and was trying to get away from him. When asked if the argument only became physical after

she pushed him, she disagreed and stated that West was “coming at [her], and he was over [her],

yelling at [her] in [her] face, this close (indicating), spit coming out of his mouth, and doing what

he’s doing.” Bowen also stated that she only pushed West because “he came at [her], yelling at

[her], and pushing [her] down.” On re-direct, Bowen stated that she had not “instigated any

violence with” West. She “felt pinned in” by West and attempted to push past him to get away

from the situation because she was worried for her safety. On re-cross examination, she

disagreed with defense counsel’s assertion that she had started the physical altercation, though

she did agree that she “pushed him away” first.

C. Analysis

We must view the evidence in the light most favorable to West and determine whether

there was any evidence to show that either (1) Bowen effectively consented to the assault, i.e.,

whether there was any evidence that Bowen assented in fact, either expressly or apparently; or

(2) West reasonably believed that Bowen effectively consented. See TEX. PENAL CODE ANN.

§ 1.07 (Supp.), § 22.06(a). In support of his argument that an instruction on consent was

required, West contends that there were “several times” that Bowen “admitted that she was the

person who initiated the assaultive conduct when she pushed” West. The evidence supports that

Bowen did, in fact, push West and possibly was the first to engage in physical contact.

However, even in viewing the evidence in the light most favorable to West for a consent

instruction, we cannot conclude that there was evidence that Bowen assented, expressly or

impliedly, to the assaultive conduct of West, nor can we conclude that there was evidence that

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West believed Bowen had consented. On these facts, specifically, we conclude that Bowen’s

actions in pushing West away, “at most, rose to the level of provocation and [could have] entitled

[West] to a self-defense instruction.” See Nick v. State, No. 12-24-00177-CR, 2025 WL 657293,

at *7 (Tex. App.—Tyler Feb. 28, 2025, no pet.) (mem. op., not designated for publication)

(citing Garza-Ramirez v. State, Nos. 04-15-00420-CR & 04-15-00421-CR, 2016 WL 1128277,

at *3 (Tex. App.—San Antonio Mar. 23, 2016, no pet.) (mem. op., not designated for

publication) (“holding that victim’s testimony that she hit defendant and continued to hit him as

they pushed each other was no evidence of consent and defendant was not entitled to consent

instruction”); Agbor v. State, No. 02-12-00401-CR, 2013 WL 1830679, at *4 (Tex. App.—

Fort Worth May 2, 2013, no pet.) (per curiam) (mem. op., not designated for publication)

(“holding that when evidence showed ‘bad blood’ and history of verbal altercations between

appellant and victim, and victim pushed Appellant’s finger away during argument and struck

appellant first, evidence supported instruction on self-defense but did not support instruction on

consent”); Skipper v. State, No. 14-00-00484-CR, 2001 WL 893291, at *2 (Tex. App.—Houston

[14th Dist.] Aug. 9, 2001, pet. ref’d) (not designated for publication) (“holding that when

evidence showed that victim yelled, called appellant names, pushed him, and threw food at him,

consent instruction was not required because ‘victim’s actions . . . rise to, at best, provocation,

entitling appellant to a defensive instruction on self-defense, which he received’”); Carlson v.

State, No. B14-92-00173-CR, 1994 WL 64940, at *1 (Tex. App.—Houston [14th Dist.] Mar. 3,

1994, no pet.) (not designated for publication) (“concluding that when evidence showed that

victim initiated fight by throwing water on appellant and taking first swing, self-defense

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instruction was required but consent instruction was not”); but see Allen v. State, 253 S.W.3d

260, 267 (Tex. Crim. App. 2008) (“holding that when victim taunted defendant by verbally

encouraging defendant to strike her, evidence raised issue of consent and required submission of

consent instruction to jury”); Miller, 312 S.W.3d at 212, 214 (“holding that when victim testified

that he wanted to provoke defendant into striking him and victim struck first blow, consent

instruction was required”)). However, to receive a self-defense instruction submission, the

defendant must admit to his illegal conduct, which West did not do. See Jordan v. State, 593

S.W.3d 340, 343 (Tex. Crim. App. 2020) (citing Juarez v. State, 308 S.W.3d 398, 404 (Tex.

Crim. App. 2010)). “In sum, viewing the evidence in the light most favorable to [West], we

conclude that because the evidence did not raise the defense of consent, the trial court [was not

required] to instruct the jury regarding consent.” Nick, 2025 WL 657293, at *7 (citing TEX.

PENAL CODE ANN. §§ 2.03(c), 22.06(a)(1); Shaw v. State, 243 S.W.3d 647, 657–58 (Tex. Crim.

App. 2007); Harper v. State, 508 S.W.3d 461, 465 (Tex. App.—Fort Worth 2015, pet. ref’d)).

Accordingly, we overrule West’s second issue.

III. Conclusion

We affirm the trial court’s judgment.

Charles van Cleef
Justice

Date Submitted: March 25, 2026
Date Decided: April 27, 2026

Do Not Publish
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