Summary
holding when evidence showed defendant initiated the altercation and did not abandon or attempt to abandon the encounter, trial court did not err in refusing self-defense instruction
Summary of this case from Mayes v. StateOpinion
No. 05-11-00386-CR
07-13-2012
LISA MICHELLE TAYLOR, Appellant v. THE STATE OF TEXAS, Appelle
AFFIRM; Opinion Filed July 13, 2012.
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1060327-M
MEMORANDUM OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice Lang
Lisa Michelle Taylor appeals her jury conviction for injury to an elderly individual, her mother. In a single issue, she contends the trial court erred in refusing to charge the jury on the issue of self-defense. We decide Taylor's issue against her and affirm the trial court's judgment.
I. Background
Taylor was charged by indictment that alleged she "intentionally and knowingly caused bodily injury to [her mother], an elderly individual, by forcing her onto a bed with arms causing [her] to fall onto a table or the floor." See Tex. Penal Code Ann. § 22.04(a)(3) (West Supp. 2011). Taylor's mother, Karen Taylor, testified at trial that Taylor had been living with her for about six years and was unemployed. On the day of Taylor's arrest, Taylor and Karen were drinking coffee in the living room and talking about Taylor's job search. Taylor became upset and threw coffee at Karen. Although the coffee did not hit Karen, Karen went to her bedroom to call the police. As Karen reached for the phone, Taylor "came up behind [her,] . . . grabbed [her] arms and held [her] real, real, real tight, trying to get the cell phone away from [her]." Karen testified it felt like Taylor "was squeezing [her] to death" and she could not breathe. As the two struggled, they fell onto a bed. Karen testified her arms were still pinned to her side when they fell onto the bed, but she was able to get "[an] arm up and put it across [Taylor's] neck as a defense." The two continued to struggle until they fell onto the floor, at which point Taylor let go. Taylor went to her room and Karen went to the living room. Karen called the police when she noticed blood and bruises on her arms.
Dallas police officer Heather McGovern testified she responded to the call and found Karen "upset, visibly shaken . . . [and] stressed." McGovern noticed "torn skin up and down" Karen's arms and also observed "[a] minor scratch" on Taylor. According to McGovern, Taylor "was very on edge" and said she "was upset with her mother because she felt that her mother was always bothering her about her employment."
Testifying in her defense, Taylor denied she became upset because of conversation about her job search. Instead, Taylor testified she became upset because her mother called her a vulgar name. Taylor testified she threw the coffee at the coffee table and that angered her mother. When her mother went to call the police, Taylor became "terrified" and ran to get the phone and talk to her mother. Taylor testified that her mother thought she "was attacking her." As the two struggled over the phone, Karen bit Taylor on the arm, "began . . . strangling [her] and pulling [her] hair and scratching [her] scalp." Hoping to get her mother to stop, Taylor "pinned her [mother's] arms." The two then fell on the bed. Karen "tug[ged] her forearm and beg[a]n to crush [Taylor's] larynx." As they continued to struggle, they fell onto the floor where Taylor "threw her [mother] off." Taylor noticed blood on her shirt and "concluded" her mother "had to be bleeding." Taylor testified she was worried for both herself and her mother and was in shock because she "couldn't believe [her mother] tried to strangle [her] and crush [her] larynx." Taylor also testified her mother had bruises on her arms before the incident, but she "reopened them, in self-defense after being strangled, bitten, . . . and scratched and hair pulled."
At the conclusion of Taylor's testimony, Taylor's counsel requested a jury instruction on self- defense. The trial court denied the request, and the jury returned a verdict of guilty. The trial court then assessed a five-year sentence, suspended for five years, and a $500 fine. The trial court also made an affirmative finding of family violence.
II. Jury Instruction
In her sole issue, Taylor asserts the trial court erred in refusing to charge the jury on the issue of self-defense. In arguing this issue, she directs our attention to her testimony that (1) as she and her mother struggled over the phone, her mother bit her on the arm, began to strangle her, pulled her hair, and scratched her scalp; and (2) she pinned her mother's arms hoping it would stop her mother from attacking her. Taylor maintains this evidence shows her "use of force was justified to protect herself." In response, the State argues the use of force was not justified because Taylor initiated the altercation.
A. Applicable Law
A defendant is entitled to an instruction on self-defense if some evidence, even if weak, contradicted, or incredible, exists that he reasonably believed the force was immediately necessary to protect himself against the other's use or attempted use of unlawful force. See Tex. Penal Code Ann. § 9.31(a) (West 2011); Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001). The evidence may be from any source, including the defendant alone, but must include an admission that the offense occurred. Shaw v. State, 243 S.W.3d 647, 657-58, 659 (Tex. Crim. App. 2007); Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987) (op. on reh'g). The use of force against another is generally not justified if the defendant verbally provoked the other, or physically provoked the other and did not abandon or attempt to abandon the encounter. See Tex. Penal Code Ann. § 9.31(b)(1),(4); Kennedy v. State, 193 S.W.3d 645, 654 (Tex. App.-Fort Worth 2006, pet. ref'd).
B. Standard of Review
A reviewing court examines a trial court's ruling on a requested jury instruction under the standards set forth in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). In analyzing a jury-charge issue, the reviewing court must first determine whether error actually occurred. Id. at 350. The court examines the charge as a whole and looks to see if it sets forth the law applicable to the case as determined by the allegations in the indictment and evidence presented at trial. See Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007); Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007); Ferrel, 55 S.W.3d at 591. In reviewing the evidence to determine whether a defendant is entitled to a defensive instruction, the court views the evidence in the light most favorable to the defendant. Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006). When, as here, error has been preserved, the reviewing court will reverse the conviction upon a showing of some harm. Almanza, 686 S.W.2d at 171.
C. Application of Law to Facts
In arguing the trial court erred in refusing to charge the jury on the issue of self-defense, Taylor does not dispute she pinned her mother's arms, caused her mother to fall onto the bed and floor, and caused injury to her mother's arms. However, she claims she did so only because her mother was attacking her. In making this argument, however, Taylor ignores her own testimony that, before her mother "attacked her," Taylor had become upset at her mother, threw her coffee at the coffee table which was close to where her mother was sitting, ran to get the phone from her mother, and struggled with her mother over the phone. This testimony was consistent with her mother's testimony and demonstrates Taylor initiated the altercation, as the State argues. Additionally, nothing in the record shows that Taylor, after attempting to grab the phone from her mother, abandoned or attempted to abandon "the encounter." In fact, the record reflects Taylor did not let go of her mother until after she and her mother fell onto the floor.
To have been entitled to the requested instruction on self-defense, evidence was required that showed her mother acted unprovoked, or if provoked, evidence showing Taylor abandoned or attempted to abandon "the encounter." See Tex. Penal Code Ann. § 9.31(a), (b)(1),(4). Viewing the evidence in the light most favorable to the defendant, we conclude the evidence did not raise self- defense and the trial court did not err in refusing to charge the jury on that issue. See Lockhart v. State, 847 S.W.2d 568, 574-75 (Tex. App. 1992) (concluding self-defense not raised in capital murder case where evidence showed appellant initiated altercation that led to officer's death and did not stop struggling with officer until officer was shot twice). We decide Taylor's issue against her.
III. Conclusion
Having decided Taylor's sole issue against her, we affirm the trial court's judgment.
DOUGLAS S. LANG
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110386F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
LISA MICHELLE TAYLOR, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00386-CR
Appeal from the 194th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F- 1060327-M).
Opinion delivered by Justice Lang, Justices Bridges and FitzGerald participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 13, 2012.
DOUGLAS S. LANG
JUSTICE