### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00291- CR

Jose Villarre al, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 368 TH JUDICI AL DISTRICT

NO. 08- 1231 -K 368, H ONO RAB LE B URT CARNES, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant J ose Villarre al was found g uilty of assa ult on a family or household member, second offe nse. See Tex

. P en al C o d e Ann. § 22.01(a) (1), (b)( 2)(A) (West Supp. 2009) (enha ncing punishment for family violence assault with previous conviction). Villarre al complains 1 of the district cour

t’s ref usal to submit to the j ury an ins truction as t o defe nse of proper ty

. See id. § 9.41 (West 2003) (prote ction of one’ s own proper ty ). We affir

m. Villarre al was arr ested on Aug ust 18, 2008, and was char g ed b y i n d i ctm ent with assault on his g irlfriend, Kristi Solis

. A jury trial was held in May 2009 in which Villarre al pleade d not guilty to the assault.

The indictment also contained a penalty para g raph alleg ing that Villarre al had been 1 co n v i ct ed previously of a felony offe nse (driving while intox icated)

. The jury found the penalty para g raph t rue. See Tex. Penal Code Ann. § 12.42(a) (3) (West Supp. 2009) (ele vating rang e of punishment from third deg ree felony to second de g ree felony

).Acc ording to the testimony at trial, Villarre al was living in a motel room during the

summer of 2008, and Kristi Solis, his g irlfriend, had been stay ing with him for a month and a half. On August 17, at about 7:00 p.m., Solis left wit h a fri en d t o “go get h i gh” on cra ck cocaine. She
returne d to the motel room the next morning some time befor e 5:00 a.m. Upon her return, she and Villarre al beg an fig hting, appar ently due to his frustra tion r eg arding Solis ’s fa ilure to succe ssfully quit her drug addiction.

Alejandr o Z ara te was on duty as the manag er of the motel as o f 5 : 00 a.m. Z ara te testified that he twice hear d noises from Villarre al’s motel room which sounded like loud stomping

or hitting ag ainst the wall, and that both times he knocked on the door to the room to ask them to be quiet. Shortly there afte r, he saw Solis running down the outside stairs with n o shoes, scre aming “don’t let him come aft er m e” and “call the cops.” As she proceede d along the s tree t, Z ara te s aw Villarre al walk by , run af ter he r as soon a s he rounded the corne r, g rab Solis from behind, and fall into a roadside ditch tog ether with her. At that point, Z ara te ca lled the police. Offic er Mike Culp with the Tay lor Police Depa rtment responde d to the 5:12 a.m. call. He testified that when he arr ived at the motel par king lot, he did not see any disturbance

. He then hear d a female scr eam ( his patrol car window was ope n and he ha d not turned on his police si ren) and saw a hand rise from the ditch and “g o back down rea lly quick.” As he exit ed his patrol car , he observe d Villarre al on top of Solis , hitting her in the fac e and head are a with his fist. Offic er Culp told Vill ar re al t o s t o p , b ut he did not stop until Offic er Culp pointed his g un at him and said he would shoot if Villarre al di d not stop. Z ara te likewise testified tha t he di d not see Villarrea l raise his hands from the ditch until Offic er Culp said “I will shoot.”

2Acc ording to Solis ’s testimony , when she returne d to the motel room af t er get ting high with her friend, she and Villarre al beg an ar g uing, f ighting , and “pushing eac h other a round.” At some point during the fig hting, Villarre al burned Solis ’s fac e with a cig are tte, althoug h s h e testified that it did not happen intentionally

. Solis then went down the outdoor stairs, and Villarre al threw se vera l hundred dollars a t her fr om the balcony in front of the motel room. Solis picked up all the money an d returned to the room, but returne d only part of the money , claiming that she had g iven the re s t t o t h e m o tel’s night manag er. Villarre al rea liz ed she was ly ing, and their fig hting resumed. Villarre al pushed Solis into the bathtub and choked her. After Villarre al stopped choking her, Solis r an outside. When Villarrea l caug ht up to Sol is by the roa d, he tac kled her

and pulled her into the roadside ditch. Acc ording to Solis , Villarre al choked her ag ain but did not punch her. She did testify , howeve r, that during their fig hting his striking her cause d her pain. Villarre al g ot up off of Solis when the police office r pointed a g un at him.

Acc ording to Villarre al’s testimony , when Solis first returne d to t h e motel room, he did not want her to stay with him any more, and they beg an arg uing. He alleg ed that he may have pulled off her earring s at t hat poi nt, but did no t re m em b er d o i ng so. After Solis left t he room, he noticed that some of his money was g one. Solis returne d, g ave him fifty dollars back, and told him she had g iven the rest of it to the motel manag er. Solis left ag ain, and when Villarre al rea liz ed she

was ly ing reg arding the money , he pursued her and g rabbe d her and they both fell i n t o t h e d i t ch

. When the police office r arr ived, Villarre al told the office r all he wanted was his money . Villarre al denied hitting or

choking Solis at any

point. He g ave no te stimony conce rning the cig are tte burn. Photogra phs of S o lis’s injuries wer e admitted into evidenc e at trial. They showed discoloration on Solis ’s fac e, which she alleg ed happene d during her strug g le with Villarre al. They 3also showed a cig are tte burn on her fac e, as well as injuries on her ear s resulting from her ear ring s being pulled out. There wer e also photog raphs of bruises on her

arms and sc ratc hes on her back. During the char g e co nfer ence , defe nse counsel objected to the jury char g e and reque sted a jury instruction reg arding defe nse of proper ty

. The district court d en ied the reque sted instruction. The jury found Villarre al g uilty , and assessed his punishment at confine ment for six teen y ear s in the Correc tional I nstitut ions Division o f the Texas Depa rtment of Criminal J ustice. The district c ourt sentenc ed Villarr eal in ac corda nce w ith the jury ’s ver dicts. Villarre al appea ls. I n a single issu e, he complains that the district court err ed in ref using to submit to the jury an i n s t ru ct i on as to defe nse of proper ty

. Protection of one’s own proper ty is a defe nse to prosec ution for assault. See id. § 9.02 (West 2003).

A person unlawfully dispossessed of

. . . t an gi b l e, movable proper ty by another is justified in using forc e ag ainst the other when and to the deg ree the actor rea sonably believes the forc e is immediately nece ssary to

. . . rec over the proper ty i f the actor uses the forc e immediately or in fre sh pursuit afte r the dispossession and

. . . the other acc omplished the dispossession by using f orce , threa t, or fra

ud ag ainst the ac tor.

Id. § 9.41(b). Villarre al contends that his use of forc e ag ainst Solis was justified in order to rec over the money

that she had f

raudule ntly

taken f rom him. A defe ndant has the ri gh t t o an instruction on any defe nsive issue raised by the eviden ce , wh et her that evidenc e is wea k or strong , unimpeache d or contra dicted, and reg ardle ss of what the trial court may or may not think about the cre dibilit y of the evidenc e. Granger v. State , 3 S.W .3d 36, 38 (Tex. Crim. App. 1999). This rule is desig ned to insure that the jury , not the judge , will decide the rela tive cre dibilit y of the evidenc e. Id. I n dec i d i n g wh et h er a defe nsive issue is

4raised, w e view the evidenc e in the light most favor able to the de fenda nt’s reque sted submission. Bufkin v. State , 207 S.W .3d 779, 782 (Tex. Crim. App. 2006).

Ho we ver, a defe ndant is not entitled to an instruction on a defe nsive issue wh en he denies committing the conduct with which he is char g ed. See Ex parte Nailor , 149 S.W .3d 125, 132-33 (Tex. Crim. App. 2004) (def endant alleg ed that he did not strike victim with hand and that her injury was acc idental); McG arity v. State , 5 S.W .3d 223, 226-27 (Tex. App.—San Antonio 1999,

no pet.) (def

endant char g ed with assault by hitting victim in fac e, but claimed he threw victim on bed but did not hit her)

. For the defe ndant to be entitled to an instruction, there must be some defe nsive testimony to the eff ect that the defe nsive issue applies. See VanBrack le v. State , 179 S.W .3d 708, 715 (Tex. App.—Austin 2005, no pet.). There fore , we look to Villarre al’s testimony to deter mine whether he admitted to the conduc t with which he wa s char g ed. Villarre al was char g ed wi t h intentionally , knowing ly , or rec klessly causing bodily injury to Solis by (1) “burning Kristi Solis with a cig are tte,” (2) “choking Kristi Solis with the defe ndant’s hands,” or (3) “striking Kristi Solis with the defe ndant’s hands.” Vi ll a r rea l testified that 2 he did not choke Solis. He furthe r testified that he never hit Sol is and that Off

icer Culp wa s ly ing when he stated that he saw Villarre al punching Solis

. Villarre al did not admit to burning Solis with 3

a cig are tte. Moreove r, the only evide n ce reg arding the timing of the cig are tte burn was Solis ’s

I n the indictment, Villarre al was also char g ed with as s ault by “biting Kristi Solis with 2 the defe ndant’s teet h , ” b u t t h i s form of conduct was remove d from the jury char g e prior to its submissi on to the jury

. We do not consider Villarre al’s testimony that at one point he may have pulled off Solis ’s 3 ear ring s and that at another point he g rabbe d her to c onstitut e evidenc e of “striking ” Solis with his hands as se t out in the jury char g e. 5testimony that it occur red when they first started fig hting—whic h wa s b efor e she took any of Villarre al’s money

—and there is no evidenc e to the contra ry . There fore , Villarre al was not entitled
to an ins truction on the defensive is sue of defe nse of proper ty , and the district co u rt did not err in ref using to submit the instruction to the jury . We overrule Villarre al’s sole point on appe al.

Having overr

uled Villarre al’s sole point on appea l, we aff irm the judgme nt of the district court.

__________________________________________ David Pury ear , J ustice Be fore J ustices Patterson, Pury ear and He nson Affir med Filed: Oc tober 13, 2010 Do Not Publish

6