In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-19-00380-CR 

KIMBERLY LEIGH MOLL, APPELLANT 

 

V. 

 

STATE OF TEXAS, APPELLEE 

 

On Appeal from the 453rd District Court of 

Hays County, Texas 

Trial Court No. 18-0932-E, Honorable David Junkin, Presiding 

 

August 5, 2020 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and PIRTLE and PARKER, JJ. 

Kimberly Leigh Moll appeals her conviction for “Assault Family Violence.” This 

was a lesser-included offense of the charge for which she was originally charged and 

tried, namely assault family violence by strangulation. The sole issue before us is whether 

the trial court erred in denying her request for an instruction on self-defense. We conclude 

that it did not and affirm the judgment and conviction.1

1Because this appeal was transferred from the Third Court of Appeals, we are obligated to apply 

its precedent when available in the event of a conflict between the precedents of that court and this Court. 

See TEX. R. APP. P. 41.3.
2

As is in many trials, the version of events differs from victim to assailant. Here, the 

jurors were asked to determine whether appellant attempted to thwart blows to her face 

by her niece through simply lifting her niece by the armpits and moving her away. Or, did 

she respond to her niece’s act of placing her hand over appellant’s mouth (to calm 

appellant) by grabbing her niece by the throat and pushing her against a porch pillar. 

Appellant informed the police she simply did the former. 

Common to both the original accusation and the lesser-included offense is the 

element of bodily injury, as can be seen by the jury charge. That is, to gain conviction 

the State had to prove, among other things, that appellant intentionally, knowingly, or 

recklessly “caused bodily injury” to her niece. See TEX. PENAL CODE ANN. § 22.01(a)(1)

(West 2019) (stating that a person commits the offense of assault by intentionally,

knowingly, or recklessly “causing bodily injury to another”). Furthermore, “bodily injury”

means “physical pain, illness, or any impairment of physical condition.” Id. § 1.07(a)(8). 

We mention this because self-defense is a defense falling within the realm of confession 

and avoidance. Jordan v. State, 593 S.W.3d 340, 343 (Tex. Crim. App. 2020). One 

interposes it as a means of justifying, and therefore, excusing criminal conduct. Shaw v. 

State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007). And, being within the realm of 

confession and avoidance, it “requir[es] the defendant to admit to his otherwise illegal 

conduct.” Jordan, 593 S.W.3d at 343. This does not necessarily mean the defendant 

himself must admit to committing the crime; it is enough that an admission may be inferred 

from the defensive evidence presented. See Juarez v. State, 308 S.W.3d 398, 406 (Tex. 

Crim. App. 2010) (stating that in Shaw, the court “expanded the admission requirement 

and said that a defendant’s defensive evidence must admit to the conduct”). So, as stated 
3

in Shaw, the “defensive instruction is only appropriate when the defendant’s defensive 

evidence essentially admits to every element of the offense including the culpable mental 

state.” Shaw, 243 S.W.3d at 659 (emphasis in original). 

Given the foregoing authority, appellant’s defensive evidence must essentially 

admit to every element of the assault of which she was accused. One element involved 

is causing bodily injury. We note the absence of evidence from which one could 

reasonably infer that appellant admitted to that. From her words, as captured on police 

videos, her niece began striking her (appellant) in the face when the two came into first 

contact. Appellant informed authorities that she responded by simply placing her hands 

under the armpits of her niece, lifting the 120-pound female, moving her away, and 

leaving. No effort was made to describe how that conduct resulted in her niece suffering 

pain, illness or impairment of a physical condition; nor did we encounter evidence of injury 

arising from the niece being so moved. In effect, appellant was simply denying she did 

that of which the State accused her, causing bodily injury and did not acknowledge that 

she performed the actions alleged by the state. See Johnson v. State, No. 05-18-00313-

CR, 2019 Tex. App. LEXIS 4382, at *6 (Tex. App.—Dallas May 29, 2019, no pet.) (mem. 

op., not designated for publication) (quoting Ex parte Nailor, 149 S.W.3d 125, 134 (Tex. 

Crim. App. 2004)) (stating that though “a defendant is ‘not required to concede the State’s 

version of the events,’ . . . she must at least acknowledge ‘perform[ing] the actions the 

State alleged’”). So, the defensive evidence failed to “essentially admit[] to every element 

of the offense,” as required, and the trial court did not error in withholding the self-defense 

instruction. See id. (holding that the defendant was not entitled to an instruction on self-
4

defense because she “did not confess to using force to cause David bodily injury, denied 

initiating any contact with David, and claimed David’s injuries were entirely self-inflicted”).

We overrule appellant’s sole issue and affirm the judgment of the trial court.

Per Curiam

Do not publish.