Opinion
No. 05-16-00882-CR
04-05-2017
EDGAR RICARDO VEGA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 5 Dallas County, Texas
Trial Court Cause No. F-1540923-L
MEMORANDUM OPINION
Before Justices Evans, Stoddart, and Boatright
Opinion by Justice Boatright
A jury found appellant guilty of assaulting his wife. The trial court assessed appellant's punishment at one year's confinement in county jail, probated for two years. In a single issue, appellant argues the trial court erred by refusing to instruct the jury on the law of self-defense. We affirm the trial court's judgment.
Background
Appellant arrived home one Friday evening and told his wife, Vanessa, that he had been drinking at work. He soon fell asleep. Vanessa examined his phone and found a video of appellant and others drinking at a restaurant; the video had been taken by a woman. Vanessa woke appellant, demanding he leave the house because he had lied to her. She then threw appellant's phone against the wall in their bedroom. Appellant got up and flipped his metal bed frame and mattress over in the direction of his wife's bed, where their young son was sleeping. Vanessa pushed the bed back over. As the bed landed, the metal frame struck appellant in the head. Appellant punched Vanessa in the face. She fell to the floor, and he kicked her in the side and punched her thigh and her knee. Their son woke up. Appellant carried him back to his own bed and, at the same time, Vanessa heard their daughter crying in another room. Vanessa picked her up and carried her into the parents' bedroom. Appellant thumped Vanessa with his fingers hard enough to cause both Vanessa's and the daughter's heads to jerk back. Vanessa tried to leave the room, but appellant pinned her against the wall and started choking her, demanding she give him their daughter. She eventually let appellant take the child, and Vanessa went to the kitchen. Appellant followed her, grabbed the glass top to a pot, and threw it at her; the glass shattered on the countertop. Vanessa went to her son's bedroom. Appellant went into the parents' room and fell asleep again. Vanessa tried to talk to a 911 operator, but she did not summon the police that night. Eventually, she went to sleep in their bedroom as well.
Vanessa did contact the police on Sunday. They arrested appellant, and he was indicted for family violence assault, including a charge of impeding his wife's breathing. The jury convicted him of simple assault.
Self-Defense
Appellant contends the trial court erroneously denied his request for an instruction on self-defense in the jury charge. Our initial question in any jury-charge issue is whether error exists. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). A defendant is entitled to an instruction on self-defense if the issue is raised by the evidence, "whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense." Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001). A defense is supported or raised by the evidence if there is some evidence on each element of the defense that would support a rational jury finding on that element. Shaw v. State, 243 S.W.3d 647, 657-58 (Tex. Crim. App. 2007). In making this determination, we view the evidence in the light most favorable to the defendant. Ferrel, 55 S.W.3d at 591. Whether a defense is raised by the evidence is a sufficiency issue, reviewable on appeal as a question of law. Shaw, 243 S.W.3d at 658.
A person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against another's use or attempted use of unlawful force. TEX. PENAL CODE ANN. § 9.31 (West 2011). To merit a self-defense instruction, an appellant must have adduced some evidence of his state of mind at the time he used the force at issue. Reed v. State, 703 S.W.2d 380, 384 (Tex. App.—Dallas 1986, pet. ref'd) (per curiam). The evidence must show the appellant was "in some immediate apprehension or fear" of receiving the purportedly unlawful force by the complainant. Smith v. State, 676 S.W.2d 584, 585 (Tex. Crim. App. 1984). "[A] defensive instruction is only appropriate when the defendant's defensive evidence essentially admits to every element of the offense including the culpable mental state, but interposes the justification to excuse the otherwise criminal conduct." Shaw, 243 S.W.3d at 659.
Vanessa used force once, to flip the bed back that appellant had flipped toward her and their son. Appellant introduced no evidence he reasonably believed that punching, kicking, thumping, and grabbing Vanessa was immediately necessary to protect him from that use of force. He offered nothing about an immediate apprehension or fear. On the contrary, the evidence shows that every time Vanessa retreated—to their children's rooms, to a corner of their bedroom, and to the kitchen—appellant followed her. The only evidence of appellant's state of mind at the time of the incident is Vanessa's testimony that appellant was "angry," "mad," "enraged," and "going crazy." A rational juror could not find that appellant reasonably believed it was immediately necessary to punch, kick, thump, and grab his wife to protect himself against an unlawful use of force.
Viewing the evidence in the light most favorable to the defendant, we conclude the evidence did not raise self-defense. Accordingly, the judge correctly refused to instruct the jury on that issue. We decide appellant's single issue against him.
Conclusion
We affirm the trial court's judgment.
/Jason Boatright/
JASON E. BOATRIGHT
JUSTICE Do Not Publish
TEX. R. APP. P. 47 160882F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 5, Dallas County, Texas
Trial Court Cause No. F-1540923-L.
Opinion delivered by Justice Boatright. Justices Evans and Stoddart participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 5th day of April, 2017.