Opinion filed June 12, 2014

In The

Eleventh Court of Appeals __________

No. 11-12-00038-CR

__________

DAVID BOCANEGRA, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 4

Travis County, Texas

Trial Court Cause No. C1CR11205953

M E M O R A N D U M O P I N I O N

David Bocanegra, Jr. appeals his conviction by a jury of assault-family 

violence. See TEX. PENAL CODE ANN. § 22.01 (West Supp. 2013). Based on an 

agreement between Appellant and the State as to punishment, the trial court 

sentenced Appellant to confinement in the county jail for a term of 270 days. We 

affirm.
2

I. Background Facts

Appellant was charged by information with assault-family violence. The 

information alleged that on or about April 7, 2011, Appellant intentionally, 

knowingly, and recklessly caused bodily injury to Garciana Flores, a family or 

household member or an individual with whom Appellant had a dating 

relationship, by pushing on or about her torso with his hand and by hitting her head 

with his hand. Appellant pleaded “Not Guilty” to the charge, and the case 

proceeded to trial.

Malinda McKenzie, a 911 operator for the Austin Police Department, 

testified that she received a call from Garciana Flores, at 1109 Gardner Cove, on 

April 7, 2011. In the recording of the call played for the jury, Flores can be heard 

telling the operator that Appellant punched her in the eye.

Officer Pircher of the Austin Police Department testified that he responded 

to Flores’s 911 call on April 7, 2011. When he arrived at 1109 Gardner Cove, 

Officer Pircher observed Appellant and Flores standing in the front yard. Flores 

was crying, and her right eye appeared “puffy,” “purplish,” and “almost swollen 

shut.”

Appellant told Officer Pircher that Flores was his girlfriend and that she 

lived at the house with him. Appellant stated that he and Flores had been arguing 

about the fact that Flores had taken his vehicle without his permission. Appellant

told her to get her things and leave the house. Appellant claimed that he was 

attempting to push Flores, who was holding a small child, out of their bedroom 

when he unintentionally swung open the door, which accidentally struck her right 

eye.
3

Flores provided Officer Pircher with a different version of events.1 Flores 

acknowledged that she and Appellant had been arguing about the fact that she took 

his car without his permission, but she claimed that Appellant had pushed her, spit 

in her face, and struck her right eye with his right fist. Officer Pircher stated that 

Flores’s injuries were consistent with her story.

Grace Bocanegra, Appellant’s sister-in-law, gave Officer Pircher a third 

version of events. Grace told Officer Pircher that she saw Appellant and Flores 

arguing in the doorway of their bedroom before Flores closed the door to prevent 

Appellant from entering the room. Grace stated that Appellant then began pushing 

on the door from the hallway, and although she did not see it happen, she believed 

Flores was hit in the eye as Appellant tried to swing open the bedroom door in 

order to get into the bedroom. Officer Pircher noted that he found Grace’s story to 

be inconsistent because both Appellant and Flores had told him that they were in 

their bedroom, with the door closed, when they began arguing.

Officer David Silva, with the Austin Police Department, testified that he also 

responded to the 911 call at 1109 Gardner Cove on April 7, 2011. When he 

arrived at the scene, Officer Silva noticed that Flores’s right eye was swollen and 

bruised. Flores told Officer Silva that Appellant pushed her, spit on her, and 

punched her in the eye for taking his car without his permission. Officer Silva 

determined that an assault had occurred, and Appellant was arrested.

Officer Silva also took photographs of Flores’s injuries. The photographs, 

which showed bruising and swelling to Flores’s right eye, were shown to the jury. 

Officer Silva confirmed that the pictures showed injuries consistent with a fist 

 1

Officer Pircher and other witnesses were permitted to testify to statements made by Flores at the 

scene after the trial court ruled that the statements fell under the excited utterance hearsay exception and 

that Appellant had forfeited his right to a confrontation objection.
4

having hit Flores’s eye and stated that the only thing that could have caused the 

injuries was a fist.

Austin-Travis County EMS Paramedic David Leclere testified that he 

assessed Flores’s injuries on April 7, 2011, and determined that she appeared to 

have been hit in the right eye with a “round” object. Leclere stated that Flores told 

him that Appellant struck her in the face with his closed fist.

Grace testified that she observed Appellant and Flores fighting over a car on 

April 7, 2011. Grace explained that the car belonged to Appellant and that he did 

not let anyone drive it. Grace claimed that Appellant was trying to get into his 

bedroom to get his keys when Appellant opened the bedroom door, which 

accidentally struck Flores in the face. Grace admitted that this was merely an 

assumption and that she did not actually see how Flores sustained her injuries.

The jury also heard several phone calls that Appellant made while in jail. In 

the phone calls, Appellant can be heard admitting that he hit Flores, asking others 

to convey threatening messages to her, and assuring others that she would not press 

charges.

II. Issues Presented

Through two points of error, Appellant contends (1) that the evidence at trial 

was legally insufficient to sustain his conviction and (2) that the trial court erred 

when it denied his request for a defense-of-property instruction in the jury charge.

III. Standard of Review

We review a sufficiency of the evidence issue under the standard of review 

set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). Brooks v. State, 323 

S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 

(Tex. App.—Eastland 2010, pet. ref’d). Under that standard, we examine all of the 

evidence in the light most favorable to the verdict and determine whether, based on 

that evidence and any reasonable inferences from it, any rational trier of fact could 
5

have found the essential elements of the offense beyond a reasonable doubt. 

Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 

2010).

We review a trial court’s decision not to include a defensive issue in a jury 

charge for an abuse of discretion. Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. 

Crim. App. 2000). A trial court does not abuse its discretion when its decision is 

within the zone of reasonable disagreement. Casey v. State, 215 S.W.3d 870, 879 

(Tex. Crim. App. 2007).

IV. Analysis

A. Sufficiency of the Evidence

In his first point, Appellant contends that the evidence presented at trial was 

legally insufficient to sustain his conviction of assault-family violence. Appellant 

claims that the State provided only hearsay evidence to support the allegation that 

he hit Flores on the head and that the State failed to present any evidence to 

support the allegation that he pushed Flores “on the torso.”

After an extensive hearing, the trial court found that Appellant had forfeited 

his right to make a confrontation objection to testimony regarding what Flores said 

immediately after she sustained her injuries on April 7, 2011. Given that finding, 

Appellant is now estopped from complaining about the hearsay evidence on 

appeal. See Gonzalez v. State, 195 S.W.3d 114, 117 (Tex. Crim. App. 2006) 

(recognizing that the doctrine of forfeiture by wrongdoing is based on the principle 

that any tampering with a witness estops the tamperer from making an objection 

based on the results of his own chicanery). 

We next turn to Appellant’s complaint that the State presented no evidence 

to support the allegation that he pushed Flores “on the torso.” The information in 

this case charged Appellant with the single offense of assault-family violence, and 

the State alleged that Appellant committed that offense through two specific acts. 
6

The State was not required to prove both of the acts alleged in the information, as 

the charge given to the jury stated that a guilty verdict could be returned based on a 

finding that Appellant committed either of the specific acts. See Aguirre v. State, 

732 S.W.2d 320, 326 (Tex. Crim. App. 1987) (finding that, when a general verdict 

is returned and the evidence supports a finding under any of the paragraphs 

submitted, the verdict will be applied to that paragraph); see also Johnson v. State, 

2010 WL 5118133, at *2–3 (Tex. App.—Eastland Dec. 16, 2010), aff’d, 364 

S.W.3d 292 (Tex. 2012) (legal insufficiency challenge, alleging variance, is not 

sustained unless “material” variance between charging instrument and proof at 

trial). Even if we assume, without deciding, that the State failed to present 

evidence that Appellant pushed Flores on or about the torso, Appellant’s 

conviction may be upheld so long as sufficient evidence supported the alternative 

allegation that he hit Flores on the head.

In the 911 call she made on April 7, 2011, Flores told the operator that 

Appellant punched her in the eye. Flores also told Officer Pircher and Officer 

Silva that Appellant punched her in the eye. The photographs Officer Silva took of 

Flores’s injuries showed bruising and swelling to Flores’s right eye, and Officer 

Silva stated that the only thing that could have caused the injuries was a fist.

Leclere testified that Flores appeared to have been hit in the right eye with a 

“round” object. Leclere also stated that Flores told him that Appellant had struck 

her in the face with his closed fist on that day. When pressed by Appellant’s 

attorney, Leclere acknowledged that it was remotely possible, but unlikely, that 

Flores’s injuries had been caused by a door that swung open and struck her face.

Having reviewed the evidence in the light most favorable to the verdict, we 

hold that a rational trier of fact could have found, beyond a reasonable doubt, that 

Appellant committed the offense of assault-family violence when he hit Flores in 

the face with his hand. Although Grace told a conflicting version of events at trial, 
7

the jury was free to disbelieve her testimony. See Adelman v. State, 828 S.W.2d 

418, 421 (Tex. Crim. App. 1992) (finding that the trier of fact may accept or reject 

any or all of the testimony of any witness). Appellant’s first point of error is 

therefore overruled.

B. Denial of Requested Instruction

In his second point, Appellant argues that the trial court erred when it denied 

his requested jury charge instruction on the issue of defense of property. See TEX.

PENAL CODE ANN. § 9.41(a) (West 2011). Appellant claims that he was entitled to 

the instruction because there was some evidence that he used force against Flores 

to terminate her unlawful interference with his access to his car keys.

We review a trial court’s decision not to include a defensive issue in a jury 

charge for an abuse of discretion, and we view the evidence in the light most 

favorable to the defendant. Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 

2006); Wesbrook, 29 S.W.3d at 122. If a defensive theory is raised by evidence 

from any source and a charge is properly requested, it must be submitted to the 

jury. Shaw v. State, 243 S.W.3d 647, 662 (Tex. Crim. App. 2007). A defendant is 

entitled to an instruction on every defensive issue raised by the evidence, 

regardless of whether the evidence is strong, feeble, unimpeached, or contradicted, 

and even when the trial court thinks that the testimony is not worthy of belief. 

Walters v. State, 247 S.W.3d 204, 209 (Tex. Crim. App. 2007). 

Defense of property, like other Chapter 9 defenses, justifies conduct that 

would otherwise be criminal. See VanBrackle v. State, 179 S.W.3d 708, 715 (Tex.

App.—Austin 2005, no pet.) (addressing self-defense). Section 9.41(a) of the 

Texas Penal Code provides that “[a] person in lawful possession of . . . tangible, 

movable property is justified in using force against another when and to the degree 

the actor reasonably believes the force is immediately necessary to prevent or 

terminate . . . unlawful interference with the property.”
8

In order to raise the issue of defense of property, a defendant must admit

violating the statute under which he is being tried and then offer a statutory 

justification for his otherwise criminal conduct. See Shaw, 243 S.W.3d at 659 

(finding that a defensive instruction is appropriate only when the defendant’s 

defensive evidence essentially admits to every element of the offense). 

Accordingly, a defendant is not entitled to a jury instruction on defense of property 

if, through his own testimony or the testimony of others, he claims that he did not 

perform the assaultive acts alleged or that he did not have the requisite culpable 

mental state, or both. See VanBrackle, 179 S.W.3d at 715.

Here, Appellant was charged with intentionally, knowingly, or recklessly

causing bodily injury to Flores by pushing on or about her torso with his hand and 

by hitting on or about her head with his hand. For the evidence to have supported 

submission of an instruction on defense of property, Appellant first had to admit 

that he committed the charged offense. Appellant not only failed to make such an 

admission, he expressly denied using his hand to push Flores or hit her on the 

head.2

 Instead, he argued that Flores’s injuries occurred after he accidentally 

swung the bedroom door open, which accidentally struck her in the face.

Viewing the evidence in the light most favorable to Appellant, we conclude 

that the trial court did not abuse its discretion when it failed to provide the 

requested instruction. Given that he denied the allegations against him at trial, 

Appellant was not entitled to a defense-of-property instruction. See Shaw, 243 

S.W.3d at 659; VanBrackle, 179 S.W.3d at 715. Accordingly, Appellant’s second 

point of error is overruled.

 2

Although Appellant did not testify, his version of the incident was introduced through 

Officer Pircher’s testimony. Appellant’s arguments were presented to the jury through his attorney. 
9

V. This Court’s Ruling

We affirm the judgment of the trial court.

MIKE WILLSON

JUSTICE

June 12, 2014

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.