Tommy Ray Arguijo v. State

Affirmed and Memorandum Opinion filed May 20, 2008 Affirmed and Memorandum Opinion filed May 20, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-06-00654-CR ____________ TOMMY RAY ARGUIJO, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal Court at Law No. 9 Harris County, Texas Trial Court Cause No. 1326140 M E M O R A N D U M   O P I N I O N Appellant Tommy Ray Arguijo appeals his conviction for assault, claiming harmful error in the trial court=s failure to charge the jury with an instruction for self-defense. We affirm. I. Factual and Procedural Background On September 5, 2005, Officer Rohling responded to a call involving assault between appellant and appellant=s girlfriend, complainant Janet Perez. Officer Rohling met Perez, who had a swollen face, a puffy eye, scratched neck and chest, torn clothing, mussed hair, and Afree-flowing@ blood from her swollen, cut lip. Perez explained to him that during a heated argument appellant struck her three times in the face and pulled her hair. Officer Rohling arrested appellant after a minor scuffle. Officer Rohling testified that during the scuffle appellant admitted hitting Perez and threatened to do it again. Perez gave Officer Rohling a written statement that appellant hit her three times and pulled her hair. Appellant was charged with assault, to which he pleaded Anot guilty.@ At trial, the State introduced Officer Rohling=s testimony and Perez=s written statement. Perez testified in appellant=s defense, stating that she denied medical treatment that night because she did not sustain any injuries. She denied having torn clothing and denied that appellant hit, slapped, choked her, or pulled her hair. Perez admitted that, at least three times, she attempted to hit appellant. Perez described how appellant tried to deflect her strikes and grabbed her arms to prevent her from hitting him, which caused both of them to fall. Perez admitted calling police, but explained that, out of anger with appellant, she lied both to Officer Rohling and in the written statement about how appellant hit her that evening. Appellant testified that his argument with Perez escalated when she attempted to hit him on the chest. Appellant admitted grabbing Perez when she attempted to hit him. Appellant testified that as he grabbed her by the arms, they both fell and hit a coffee table. Appellant denied hitting, slapping, punching, or choking Perez. Appellant admitted seeing Perez=s torn clothing as he was arrested, but he did not see blood coming from her lip. Appellant testified that if Perez had bruises, she sustained those injuries when they both fell and hit the coffee table. Appellant testified that Officer Rohling beat him during his arrest. Appellant stated that Officer Rohling lied when he testified that appellant admitted hitting Perez and threatened to harm her again. Before the trial court charged the jury, appellant objected to the jury charge and requested an instruction for self-defense. The trial court denied appellant=s request, explaining that appellant denied striking Perez. The jury found appellant guilty of assault and assessed punishment at 365 days= confinement and a fine of $1,500.00. II. Issues and Analysis In two issues, appellant claims both error and harm in the trial court=s denial of his request for a self-defense instruction in the jury charge. A defendant is entitled to an instruction on any properly requested defensive issue raised by evidence from any source, regardless of whether the evidence is strong or weak, unimpeached or contradicted, or credible or not credible. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999); Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993). When the evidence fails to raise a defensive issue, the trial court commits no error in refusing a requested instruction. Muniz, 851 S.W.2d at 254. A reviewing court must decide whether the evidence adduced by either party, when viewed in the light most favorable to appellant, is sufficient to raise the issue of self-defense. See Granger, 3 S.W.3d at 38; Lavern v. State, 48 S.W.3d 356, 360 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d) (en banc). A person is justified in using force against another person when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the other=s use or attempted use of unlawful force. Tex. Penal Code Ann. ' 9.31(a) (Vernon 2003). However, self-defense is not congruent with one=s denial of the charged conduct. Ford v. State, 112 S.W.3d 788, 794 (Tex. App.CHouston [14th Dist.] 2003, no pet.). Self-defense is a justification for one=s actions, which necessarily requires admission that the alleged conduct occurred. Id.; see Ex parte Nailor, 149 S.W.3d 125, 133 (Tex. Crim. App. 2004) (involving accused=s denial of the charges, which did not entitle accused to self-defense instruction, rather than admitting the charged elements and offering self-defense as a legal justification); Young v. State, 991 S.W.2d 835, 839 (Tex. Crim. App. 1999) (requiring an accused to admit he committed offense as alleged before offering defense of necessity as justification). To be entitled to an instruction on self-defense, an accused first must raise the issue of self-defense by admitting the conduct charged in the indictment and then offer self-defense evidence as justification for that conduct. Jackson v. State, 110 S.W.3d 626, 631 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d); see Nailor, 149 S.W.3d at132B33; Young, 991 S.W.2d at 839. In the present case, the specific conduct charged was intentionally or knowingly causing bodily injury to Perez by striking her with his hand. See Tex. Penal Code Ann. ' 22.01(a)(1) (Vernon 2003) (defining Aassault@). Perez and appellant both expressly denied that appellant hit Perez. See Ford, 112 S.W.3d at 794 (denial of conduct is inconsistent with self-defense). First, Perez adamantly denied that appellant ever struck her with his hand. Second, Perez denied sustaining injuries. Appellant denied striking Perez and admited only to grabbing Perez.[1] For the evidence to have supported submission of the self-defense instruction, appellant would have to have admitted to the offense of striking Perez. See Ford, 112 S.W.3d at 794. He did not. Because appellant expressly denied the only allegedly assaultive conduct charged, and did not admit to the offense as charged in order to subsequently offer justification for his conduct, the issue of self-defense was not raised. See Nailor, 149 S.W.3d at 133; Ford, 112 S.W.3d at 794. Viewing the evidence in the light most favorable to appellant, we conclude appellant was not entitled to the self-defense instruction and, thus, the trial court did not err in denying appellant=s request for the self-defense instruction. See Nailor, 149 S.W.3d at 133; Ford, 112 S.W.3d at 794. Accordingly, we overrule appellant=s first issue. We need not reach the merits of appellant=s second issue, in which he claims harm from the trial court=s denial of appellant=s self-defense instruction. The trial court=s judgment is affirmed. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed May 20, 2008. Panel consists of Justices Fowler, Frost, and Seymore. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Appellant cites Torres v. State, 7 S.W.3d 712 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d), for support that grabbing Perez entailed the force necessary to justify a self-defense charge. However, the appellant in Torres admitted using force that more closely tracked the charged offense of striking by admitting to grabbing, pushing, possibly hitting the complainant, and struggling with her. See id. at 714, 716. In that case, the defendant did not affirmatively deny the underlying conduct and his admitted conduct entitled him to a defensive instruction. See id. at 715B16; see also Hollomon v. State, 948 S.W.2d 349, 352 (Tex. App.CAmarillo 1997, no pet.) (entitling accused to defense instruction when he conceded striking, tussling, falling on complainant, and possibly hitting her, which closely tracked the language in the indictment and indicated participation in the underlying offense even if concession was not an outright admission).