No. 05-03-00606-CR.
Opinion issued March 3, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, No. 2, Dallas County, Texas, Trial Court Cause No. F02-47439-I. Affirmed.
Before Justices JAMES, BRIDGES, and LANG-MIERS.
TOM JAMES, Justice.
Mark Donaldson Smith appeals his conviction for aggravated assault. A jury found appellant guilty, and the court sentenced appellant to confinement for twenty years. Appellant raises two issues on appeal contending the court erred by: (1) denying appellant's requested jury charge on deadly force to protect property; and (2) allowing the State to impeach appellant with a prior conviction for which appellant had been released from confinement more than ten years prior to the current trial. We affirm the trial court's judgment.
Background
Dallas Police Officers Judy Fries and Deborah Easton were working in a covert capacity with two other officers investigating reports of motor vehicle burglaries being committed by someone in a black jeep. The officers spotted the jeep and observed the driver, appellant, park next to a white Buick, exit his jeep, and get into the Buick. Appellant removed a black bag from the Buick, placed it in his vehicle, and returned to the Buick with a screwdriver. He intended to steal the stereo. Easton radioed for a patrol officer to come to the scene to effectuate an arrest of appellant. Officer Ronald Hubner drove to the parking lot. Meanwhile, Fries, who was parked close to the jeep and Buick, alerted her fellow officers she was going to remove the keys from appellant's jeep to prevent him from fleeing the scene; it was misting rain and Fries wanted to prevent a possible automobile chase. Fries leaned into the jeep and removed the keys. Appellant, seeing Fries near his car, approached Fries. According to Hubner and Fries, appellant was carrying the screwdriver and a knife he had found in the Buick. Fries had already closed the door to the jeep and turned to walk away. However, appellant was in front of her when she turned around, and he pushed Fries against the jeep, raising the knife and screwdriver above his head. Fries held his arm away from her, fearing he would stab her with the knife or screwdriver. Hubner hit appellant with the side of Hubner's firearm, "took" appellant to the ground, and placed him under arrest. Appellant testified he had dropped the screwdriver before approaching Fries, hid the knife in his hand because it would not close, and never raised his arm or hand in a threatening manner. Defense of Property
In his first issue, appellant argues the court erred by denying a requested charge on deadly force in defense of property. Before the charge was read to the jury, appellant requested a charge on defense of property. The court concluded that because appellant completely denied displaying the knife or making any threat, no charge was warranted. A defendant is entitled to an instruction on any defensive issue raised by the evidence, regardless of the strength of the evidence or whether it is controverted. Granger v. State, 3 S.W.3d 36, 38 (Tex.Crim.App. 1999); Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App. 1996). If the evidence does not raise an issue on the defense, an instruction is not required. See Dyson v. State, 672 S.W.2d 460, 463 (Tex.Crim. App. 1984). For a defense of deadly force to protect property under section 9.42, the actor must reasonably believe deadly force is immediately necessary to prevent the other's act and he reasonably believes either (A) the property "cannot be protected or recovered by any other means" or (B) "the use of force other than deadly force . . . would expose the actor or another to a substantial risk of death of serious bodily injury." See Tex. Pen. Code Ann. § 9.42(3) (Vernon 2003). Appellant testified he did not use force or threaten Fries, showing he did not reasonably believe any force was necessary. The State presented testimony showing Fries had just turned away from the jeep when appellant pushed her against the side of the jeep and raised the knife and screwdriver above her. We have found no evidence in the record — and appellant directs us to none-indicating appellant reasonably believed there was no other means by which to protect his keys or that using less than deadly force would expose him to any risk of death or substantial injury. Accordingly, we conclude the evidence did not raise an issue on the defense of property. See Dyson, 672 S.W.2d at 463. Furthermore, when a defendant categorically denies committing the charged offense, his argument does not present evidence of a justification defense. See Young v. State, 991 S.W.2d 835, 839 (Tex.Crim.App. 1999) (defense of necessity); East v. State, 76 S.W.3d 736, 738 (Tex. App.-Waco 2002, no pet.) (self-defense); Gilmore v. State, 44 S.W.3d 92, 96 (Tex. App.-Beaumont, 2001 pet. ref'd) (self-defense) ("The logical corollary to being entitled to an instruction informing the jury that the charged conduct was excusable under the law is that the accused admit to having committed the charged conduct in the first place."). Defense of property is a justification defense under chapter 9 of the penal code. See Tex. Pen. Code Ann. § 9.42 (contained in chapter nine, entitled "Justification Excluding Criminal Responsibility"). Appellant testified: "I did not want to scare anybody. I did not want to threaten anybody." When asked, "Did you ever at any point put the knife in your hand, blade extending downward in your fist and raise your fist above your head?" appellant responded, "Never." Accordingly, having denied committing any offense, the court did not err in denying appellant's requested charge on defense of property. We resolve appellant's first issue against him. Evidence of Prior Conviction
In his second issue, appellant contends the court erred by allowing the State to impeach his testimony with evidence of a prior conviction. Before appellant testified, the court granted appellant's motion in limine to prevent the State from introducing information about appellant's 1987 felony convictions. Appellant had been released from confinement for that conviction in 1991, more than ten years earlier. See Tex. R. Evid. 609(b). During his direct examination, appellant testified, "I was trying to make some money stealing a stereo. . . . I don't do that all the time." When asked by his counsel, "But in retrospect the theft, attempted burglary, was that a good choice?" appellant responded, "No, sir, it wasn't. It wasn't. And I don't live that type of lifestyle. I don't life [sic] that kind of life." In a sidebar discussion initiated by the State, the court found appellant left a false impression by saying he did not "live that kind of lifestyle." The court ruled the State would be allowed to question appellant about the 1987 burglary of a habitation conviction. We will not reverse the trial court's decision regarding the admissibility of evidence of prior convictions unless a "clear abuse of discretion" is shown. Theus v. State, 845 S.W.2d 874, 881 (Tex.Crim.App. 1992). If the trial court's decision was within the zone of reasonable disagreement, we will not disturb it. Id. Rule 609 provides that evidence of a witness's prior conviction shall be admitted for purposes of impeachment if the crime was a felony or a crime of moral turpitude and the court determines that the probative value of admitting the evidence of the conviction outweighs its prejudicial effect. Tex. R. Evid. 609(a). However, such evidence is not admissible if more than ten years has elapsed since the date of the conviction or the witness's release from confinement, whichever is later, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. Tex. R. Evid. 609(a). Included in finding an exception to the limitations in Rule 609 is the situation of a witness, by his direct testimony, leaving a false impression of any trouble he has had with the police. See Delk v. State, 855 S.W.2d 700, 704 (Tex.Crim.App. 1993) ("Where the witness creates a false impression of law abiding behavior, he `opens the door' on his otherwise irrelevant past criminal history and opposing counsel may expose the falsehood."). More than ten years had elapsed since appellant's release from confinement for the 1987 conviction. But when asked about his decision to commit burglary, appellant responded he did not "live that type of lifestyle." We conclude it was within the zone of reasonable disagreement whether appellant's statement left with the jury a false impression allowing the admission of his 1987 conviction. See Delk, 855 S.W.2d at 704. The conviction in question was a felony conviction for burglary, and appellant had denied living a lifestyle of committing thefts or burglaries. Accordingly, we hold the court did not abuse its discretion. See Theus, 845 S.W.2d at 881. We resolve appellant's second issue against him. We affirm the trial court's ruling.