COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

ROBERTO CASTILLO,

Appellant,

v. THE STATE OF TEXAS,

Appellee. §

§ § § § § No. 08

- 11

- 00142

- CR

Appeal from County Court at Law No. 4 of El Paso County, Texas (TC # 20100C03071)

O P I N I O N Roberto Castillo appeals from his c onviction for the misdemeanor offense of assault causing bodily injury

-- family violence

. O n appeal, Appellant complains of the trial court ’ s refusal to submit a jury instruction as to defense of property. See T EX .P ENAL C ODE A NN
. §§ 9.02 , 9.41(a), (b) (West 20 11 )(providing that protection of one ’ s own property as a justification defense to prosecution fo r assault ). For the reasons that follow, w e affi rm . FACTUAL BACKGROUND Appellant w as charged by information with the misdemeanor offense of assault causing bodily injury

- family violence. Specifically, the information alleged that, on or about November 20, 2009, Appellant intentionally, knowingly, and recklessly caused bodily injury to Karla Castillo (his spouse) by “ squeezing Karla Castillo ’ s arm with [Appellant ’ s] hand

. ”- 2

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At the trial, Ms. Castillo testified regarding the incident giving rise to the charges. On November 20, 2009 , she met Appellant at Wal

- Mart because he was to give her some money to pay bills and purchase diapers for their son

. Appellant brought her some diapers but when h e told her that he was unable to give her any money , Ms. Castillo became upset and t he ir conversation escalated into an argument. At some point during the argument , Ms. Castillo sat in Appellant ’ s vehicle. Appellant asked her to get out, but she refused because Appellant had taken the keys to her vehicle and attached them to his own key ring. Appellant then attempted to dr ive off with Ms. Castillo still sitting in his vehicle while the passenger door was open. Once Appellant stopped, Ms. Castillo reached ove r and remo ved the entire set of keys from the ignition. Appellant became upset, got out of the vehicle , and walked around to the
passenger side to get the keys

. Ms. Castillo was holding the keys in her right hand with a finger through one of the rings. Appellant started pulling at the keys, trying to remove them f rom Ms. Castillo ’ s finger. Despite the pain, Ms. Castillo resisted. Appellant then grabbed Ms. Castillo ’ s

arm “ and he squeezed it with force. ” She asked Appellant to let go because he was hurting her, but Appellant refused

. Ms. Castillo then relented and releas ed the keys. Ms. Castillo explained that if Appellant had asked her nicely and offered to drive her back to her vehicle, she would have handed over his car keys. But he n ever asked nicely and instead only yelled before grabbing her arm. Her ha nd was swollen and she had scratches as well as a bruise on her arm. Photographs of Ms. Castillo ’ s injuries were admitted into evidence. During the charge conference, defense counsel objected to the jury charge and requested

a n instruction regarding defense of property which the trial court denied

. The jury found Appellant guilty as charged. The trial court subsequently sentenced Appellant to serve 365 days- 3

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in the county jail and ordered him to pay a $4,000 fine. The jail sentence and $3,500 of his fine were probated, and Appellant was placed on community supervision for twelve months. CHARGE E RROR? In his sole issue for review , Appellant contends he was entitled to an instruction on the justific ation defense of the use of force to protect one ’ s own property because the defensive issue was raised by the evidence. T he State counter s that because the instruction addressed a justification defense, Appellant was required to admit to the charged offen se before he could
assert the defense. Alternatively, the State contends the trial court did not err because there was no evidence showing that Appellant reasonably believed that force was immediately necessary to recover the property

- - a required elemen t of proof of the protection of one ’ s own property defense

. Standard of Review Appellate review of alleged jury charge error involves a two

- step process. Abdnor v.
State , 871 S.W.2d 726, 731 (Tex.Crim.App. 1994) ; Almanza v. State , 686 S.W.2d 157, 174 (Tex.Crim.App. 1984) (op. on reh ’ g) ; See Sakil v. State , 287 S.W.3d 23, 25

– 26 (Tex.Crim.App. 2009). W e must determine whether error occurred. Abdnor , 871 S.W.2d at 732. If so , we must then analyze whether sufficient harm resulted from the error to requir e reversal

. Ngo v. State , 175 S.W.3d 738, 743 (Tex.Crim.App. 2005). T he degree of harm necessary for reversal depends on whether the appellant properly preserved the error by objection. Id ., citing Middleton v. State , 125 S.W.3d 450, 453 (Tex.Crim.App. 2003). Whe re , as here, error in the charge is preserved for review, reversal i s required if the error caused “ some harm

. ” Almanza , 686 S.W.2d at 171.- 4

- Entitlement to Instruction We begin our analysis by determining whether Appellant was entitled to the i nstruction on defense of property under Section 9.41(a). W hile Section 9.41 does address the use of force to protect one ’ s own property, Appellant ’ s reliance on subsection (a) is misplaced

. S ubsection (a) applies when an actor in lawful possession of property is using force to prevent another ’ s

“ trespass on the land or unlawful interference with the property. ” T EX .P ENAL C ODE A NN
. §9.41(a). S ubsection (b) provides: (b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if th e actor uses the force immediately or in fresh pursuit after the dispossession and: (1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or (2) the other accomplished the dispossession by using force, threat, or fraud against the actor.
T EX .P ENAL C ODE A NN
. § 9.41(b ). Here, Appellant had already been dispossessed of the car keys and was attempting to regain possession at the time force was used. Accordingly, subsection (b)

a pplies. See T EX .P ENAL C ODE A NN
. § 9.41(a), (b); s ee e.g. Ordonez v. State , No. 14

- 10

- 00132

- CR, 2010 WL 5395808, at *3 (Tex.App.

-- Houston [14th Dist.] December 21, 2010, no pet.)(not designated for publication)(noting that because “ the alleged owner of property already had been disposses sed of property and was attempting to regain possession at the time force was used, it is not section 9.41(a) but section 9.41(b) of the Penal Code that applies ). In any event , Appellant was not entitled to the instruction because he did not admit to having committed any of the physically abusive conduct for which he was ch arged.- 5

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A defendant is entitled, upon a timely request, to an instruction on any defensive issue raised by the evidence, provided that (1) the defendant timely requests an instruction on that specific theory and (2) the evidence raises that issue. Rogers v. State , 105 S.W.3d 630, 639 (Tex.Crim.App. 2003) ; see also Shaw v. State , 243 S.W.3d 647, 662 (Tex.Crim.App. 2007)(recognizing the rule that when a defensive theory is raised by the evidence from any source and a charge is properly requested, it must be submitte d to the jury). A defendant is entitled to such an instruction regardless of whether the evidence supporting the defensive issue is strong, feeble, unimpeached , or contradicted. Walters v. State , 247 S.W.3d 204, 209 (Tex.Crim.App. 2007). This is true ev en when the trial court thinks that the testimony is not worthy of belief. Id.; see also Granger v. State , 3 S.W.3d 36, 38 (Tex.Crim.App. 1999) (reiterating the well

- settled rule that a defendant is entitled to an instruction on any defensive issue raised by the evidence without regard to the strength or credibility of the evidence raising it) . This rule is designed to insure that the jury, not the judge, will decide the relative credibility of the evidence. Miller v. State , 815 S.W.2d 582, 585 (Tex.Crim .App. 1991). However, defense of property is a justification defense. See T EX .P ENAL C ODE A NN
. § 9.02 ( providing a defense to criminal responsibility in circumstances where the criminal conduct is “ justified ” ) ; § 9.41 (defense of property). “ This justi fication, by definition, does not negate any element of the offense, including culpable intent; it only excuses what would otherwise constitute criminal conduct. ” Shaw , 243 S.W.3d at 659. Therefore, a defendant is not entitled to an instruction on a justification defense when he denies committing the conduct with which he is charged. See Ex parte Nailor , 149 S.W.3d 125, 132

- 33 (Tex.Crim.App. 2004) (defendant alleged that he did not strike victim with hand and that her injury was accidental); McGarity v. State , 5 S.W.3d 223, 226

- 27 (Tex.App.

-- San Antonio 1999, no pet.) (defendant charged with assault by- 6

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hitting victim in face, but claimed he threw victim on bed but did not hit her). For the defendant to be entitled to an instruction, there must be some defensive testimony to the effect that the defensive issue applies. See VanBrackle v. State , 179 S.W.3d 708, 715 (Tex.App.

-- Austin 2005, no pet.); see also Maldonado v. State , 902 S.W. 2 d 708, 712 (Tex.App.

-- El Paso 1995, no pet.) (noting that “ [o] ne canno t establish that an act is justified without first identifying, or admitting to the commission of, the predicate act. ” ). Appellant was charged with intentionally, knowingly, or recklessl y causing bodily injury to Ms. Castillo by squeezing her arm. Ms. Ca stillo testified that Appellant did in fact grab her arm and squeeze it, causing her arm to bruise. A ppellant did not testify. His failure to do so, or to otherwise admit to the conduct upon which he was charged , prevents him from benefiting from the def

ense of property

. See Maldonado , 902 S.W.2 d at 712 (finding that where Appellant did not testify or oth erwise admit his crimes prevented him from benefitting from the defense of necessity , a justification defense). Finding no error, w e overrule Appellant ’ s sole point and affirm the trial court ’ s judgment.
July 24, 2013 ANN CRAWFORD McCLURE, Chief Justice Before McClure, C.J., Rivera, and Antcliff, JJ. Antcliff, J., not participating (Do Not Publish)