                               Fourth Court of Appeals
                                        San Antonio, Texas
                                 MEMORANDUM OPINION

                                          No. 04-16-00409-CR

                                         Adam MARROQUIN,
                                              Appellant

                                                  v.

                                         The STATE of Texas,
                                               Appellee

                     From the 186th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2014CR4359
                            Honorable Jefferson Moore, Judge Presiding

Opinion by:       Irene Rios, Justice

Sitting:          Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice
                  Irene Rios, Justice

Delivered and Filed: January 31, 2018

AFFIRMED

           A jury found Adam Marroquin guilty of the offense of attempting to take a weapon from a

peace officer, and the trial court assessed Marroquin’s punishment at two years’ imprisonment in

a state jail facility, suspended in favor of four years of community supervision. Marroquin

contends the trial court erred by refusing Marroquin’s request to submit a defensive jury instruction

pursuant to Penal Code section 38.14(d). We affirm the judgment of the trial court.
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                                                BACKGROUND

        The State presented testimony from Daniel Terrazas, former Best Buy mobile department

manager, and Officers Juan Silva and Steven Appelt of the San Antonio Police Department

(SAPD). The State also introduced a recording from the COBAN recording systems in Officer

Silva’s and Officer Appelt’s patrol cars. 1 The defense presented testimony from Marroquin and

Connie Torres. 2      The defense also introduced medical records and photographs of injuries

Marroquin alleged he sustained as a result of the encounter with Silva.

                                     State’s Witnesses and Evidence

        Terrazas testified he was notified by Best Buy loss prevention officers on December 3,

2013, that a suspicious-looking man, who was later identified as Marroquin, concealed some items

in his clothing. According to Terrazas, it was the store’s general practice that if a shoplifter

returned the stolen items, a “no trespassing offense” was pursued in lieu of filing theft charges.

Although Terrazas confronted Marroquin, Marroquin denied stealing any items. Terrazas then

requested that the loss prevention staff contact authorities, and he and other Best Buy employees

blocked the store’s exit so that Marroquin could not leave. Terrazas testified that a woman, who

was later identified as Torres, asked the employees to allow Marroquin to leave the store.

        According to Terrazas, once employees contacted authorities, Marroquin returned some,

but not all, of the items he stole. The responding SAPD officer, Officer Silva, arrived within three

to five minutes of the initial call. Terrazas and Officer Silva escorted Marroquin to the loss

prevention office after Officer Silva patted down and handcuffed Marroquin. Terrazas testified




1
  The COBAN systems in Officers Silva’s and Appelt’s vehicles recorded both audio and video. Officer Silva carried
a microphone on him, which transmitted audio to his vehicle’s camera when he went into Best Buy where the incident
took place. The video portion of the recordings captured only images in the line of sight of the vehicles.
2
  At the time of the incident, Torres and appellant were girlfriend and boyfriend. At the time of trial, they were
engaged.

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that as Officer Silva was questioning Marroquin, Torres went to the loss prevention office “three

or four” times. Officer Silva testified he eventually told Torres that if she came back to the office

again, he would arrest her for interfering. Torres returned again as Officer Silva was attempting

to speak with Marroquin, and Officer Silva followed through with his warning by placing Torres

under arrest, handcuffing her, and taking her into the loss prevention office.

       According to Officer Silva, until that point, Marroquin was calm and they were “talking

fine.” However, when Officer Silva took Torres into the office Marroquin became enraged, stood

up, and refused to sit back down even upon being directed to do so several times. Terrazas testified

that when Torres was placed in handcuffs, Marroquin stood up inside the office, which was a small

room, and became aggressive. Terrazas related that although Officer Silva told Marroquin to sit

down several times, Marroquin did not follow the officer’s directions.

       Eventually, Marroquin sat but quickly stood back up.           According to Officer Silva,

Marroquin continued this behavior until he kicked out at Officer Silva’s torso. Terrazas testified

Marroquin pushed at Officer Silva using his whole body, and the two began to struggle. According

to Terrazas, Officer Silva then “turned [Marroquin] over” on the floor. Officer Silva testified he

struggled with Marroquin and held Marroquin to the floor to gain control of the situation. Officer

Silva testified that although he was on top of Marroquin, Marroquin continued attempting to stand

and did not follow directions to stay down and remain calm.

       Terrazas testified it looked as though Marroquin attempted to reach for Officer Silva’s gun,

but instead grabbed Officer Silva’s radio off his utility belt. Terrazas described how, as Marroquin

attempted to take Officer Silva’s gun, he unhooked Officer Silva’s utility belt and dislodged items

from the belt.

       Officer Silva testified that as Marroquin continued to struggle, Marroquin pushed the hood

down on Officer Silva’s holster. Officer Silva demonstrated that pushing the hood down required
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deliberate pressure. Officer Silva testified that when Marroquin attempted to take the firearm, he

struck Marroquin several times with a closed fist to prevent Marroquin from grabbing the firearm.

Marroquin also grabbed for Officer Silva’s utility belt and managed to unclip it during the struggle.

Officer Silva testified he asked Marroquin whether he was reaching for the weapon.

       Marroquin replied he was trying to stand up. However, according to Officer Silva,

Marroquin continued to reach for his utility belt in a way that made Officer Silva believe

Marroquin was trying to remove the belt and weapon. Marroquin continued to struggle and did

not comply with directions. Eventually, Officer Silva was able to reach his radio handset, request

backup, and secure Marroquin.

       Once Marroquin and Torres were both secured, Officer Silva escorted them outside to his

patrol car as Marroquin continued to curse at him and struggle. Officer Appelt arrived on the scene

as Officer Silva escorted Marroquin and Torres, both handcuffed, toward a patrol car. According

to Officer Appelt, Marroquin was “giving Officer Silva a hard time. He was trying to jerk away

from him, and they were – both of the arrested people were being loud and mouthy, and he was

having trouble controlling both of them at one time.” Officer Appelt took control of Marroquin,

who continued to be uncooperative and attempted to get away from Officer Appelt. After a brief

struggle during which Marroquin stated he didn’t want to get in the patrol car, Officer Appelt

placed Marroquin in his patrol car and transported Marroquin downtown. According to Officer

Appelt, Marroquin was “combative” during the ride and told Officer Appelt he “didn’t do shit.”

Officer Appelt testified he did not observe any injuries on Marroquin.

       Officer Silva testified he had been with SAPD for fifteen years at the time of the incident

and that no one had attempted to take his weapon. Officer Silva also testified he believed

Marroquin wanted to take the weapon to harm him. Following the incident, Officer Silva filled



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out a use of force form in which he stated he used force against Marroquin by using his hands and

fist. Officer Silva noted on the form that neither he nor Marroquin sustained injuries.

       When asked about Officer Silva’s actions, Terrazas testified he would have done the same

thing if he had been in Officer Silva’s situation.

                                 Defense Witnesses and Evidence

       Torres testified that on Dec. 3, 2013, Marroquin went into the Best Buy to do some

shopping while she waited in the car. Torres testified she went into the store when she became

worried that Marroquin had not returned after about thirty minutes. When she entered the store,

she saw that Marroquin was handcuffed. When Torres asked what had happened, employees

referred her to a manager who led her to the loss prevention office. Torres testified that when she

went to “the back of the store,” she was immediately, aggressively handcuffed and placed in a

small room with Marroquin.

       Marroquin testified he and Officer Silva were the only ones in the office initially and things

were “pretty calm” at first. Marroquin heard Torres’s voice in the distance once and testified that

Officer Silva told her to leave. According to Marroquin, upon hearing Torres’s voice again mid-

conversation, Officer Silva rushed out of the office. Marroquin testified he heard Officer Silva

and Torres struggling outside the office and saw Silva shove a handcuffed Torres into the office.

Torres testified Officer Silva pushed her “frantically” and without reason.

       Marroquin acknowledged he stood up and continued standing despite being directed to sit.

According to Marroquin, Officer Silva became aggressive and shoved him against the wall.

Marroquin described leaning against some boxes and then being knocked down by Officer Silva

when he attempted to get up. Marroquin testified he fell on his side and that Officer Silva punched

him in his stomach, groin, and face. Marroquin further testified Officer Silva continued to punch

him until he fell forward before asking if he had tried to take the officer’s weapon.
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          Torres also testified that Officer Silva pushed Marroquin when he stood up. According to

Torres:

          The officer — after the officer pushed me, the — [Marroquin] was standing up, and
          the officer saw [Marroquin] and asked [Marroquin], what the hell are you doing
          up? I told you to sit down. Pushes [Marroquin] into a corner, falls — or, I’m sorry,
          pushes [Marroquin] and [Marroquin] falls down into a corner. And — sorry. He
          falls down — he falls down to a corner and the cop is just beating him senselessly.
          Just beats him. He’s beating him and beating him.

When asked how long the incident lasted, Torres responded: “For about a good minute. For a

good while. For a good five minutes.”

          Torres acknowledged she heard Officer Silva ask Marroquin if he was “trying to grab” his

gun, but asserted she never saw Marroquin reach for the officer’s weapon.              According to

Marroquin, he did not attempt to take Officer Silva’s weapon. Marroquin testified he was only

trying to stand up.

          Marroquin testified he had trouble remembering what happened after the incident in the

office, although he did recall walking to the patrol car and being taken into custody. Torres

testified that after Officer Silva struck Marroquin, she and Marroquin were taken to patrol cars by

Officer Silva, who told them to shut up.

          Marroquin introduced into evidence six photographs, which he stated were taken a few

days after the incident. Marroquin also introduced medical records from two different hospitals,

dated December 6, 2013 and December 22, 2013. According to Marroquin, he experienced

headaches after the incident and sought medical treatment. Marroquin testified he was diagnosed

with migraines, tendonitis, scrapes and abrasions, and subconjunctival hemorrhaging and was

prescribed medication. Marroquin testified he went to a different hospital on December 22 because

he continued to experience headaches.




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                                      JURY CHARGE ERROR

       Marroquin contends he suffered harm because the jury charge did not include an instruction

on the statutory defense included in section 38.14(d) of the Penal Code. TEX. PENAL CODE ANN.

§ 38.14(d). Marroquin argues the evidence presented at trial raised the requested defensive issue

and he was, therefore, entitled to the instruction. Focusing on the portion of section 38.14(d) that

states the defense is available if the officer was using force “in excess of the amount of force

permitted by law,” Marroquin argues the trial court was required to give the instruction because

“[t]he literal text of section 38.14 focuses only on a police officer’s actions, which under the

applicable circumstances, directly provide a path to the statute’s defense.” In the alternative,

Marroquin argues the appropriateness of a self-defense instruction because the State’s evidence

raised the issue of self-defense.

                            Standard of Review and Applicable Law

       We review alleged jury-charge error in two steps: first, we determine whether error exists;

if so, we then evaluate whether sufficient harm resulted from the error to require reversal. Price

v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015) (citing Almanza v. State, 686 S.W.2d 157,

171 (Tex. Crim. App. 1985) (op. on reh’g)); Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim.

App. 2005).

       The trial court must provide the jury with “a written charge distinctly setting forth the law

applicable to the case.” See TEX. CODE CRIM. PROC. ANN. art. 36.14. In fulfilling that duty, the

trial court is required to instruct the jury on statutory defenses, affirmative defenses, and

justifications whenever they are raised by the evidence and requested by the defendant. Walters

v. State, 247 S.W.3d 204, 208–09 (Tex. Crim. App. 2007); see TEX. PENAL CODE §§ 2.03(d),

2.04(d).



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       When reviewing a trial court’s ruling denying a requested defensive instruction, we view

the evidence in the light most favorable to the defendant’s requested instruction to determine

whether it is sufficient to raise the defensive issue. Bufkin v. State, 207 S.W.3d 779, 782 (Tex.

Crim. App. 2006); Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001).

       Section 38.14(b) provides that a person commits an offense “if the person intentionally or

knowingly and with force takes or attempts to take from a peace officer, … the officer’s firearm

… with the intention of harming the officer or a third person.” TEX. PENAL CODE ANN. § 38.14(b).

Section (d) provides that “[i]t is a defense to prosecution under this section that the defendant took

or attempted to take the weapon from a peace officer, … who was using force against the defendant

or another in excess of the amount of force permitted by law.” Id. § 38.14(d).

       The defendant bears the burden of producing some evidence that raises self-defense.

Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). A defense is raised by the evidence

if there is some evidence, regardless of its source, on each element of a defense that, if believed

by the jury, would support a rational inference that the element is true. Shaw v. State, 243 S.W.3d

647, 657–58 (Tex. Crim. App. 2007). When deciding whether a defensive issue has been raised

by the evidence, a court must rely on its own judgment, formed in light of its own common sense

and experience, as to the limits of rational inference from the facts that have been proven. Id. at

658. “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, 247 S.W.3d at 209; see

Shaw, 243 S.W.3d at 658; see also Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. Crim. App.

2013) (“[A] judge must give a requested instruction on every defensive issue raised by the evidence

without regard to its source or strength, even if the evidence is contradicted or is not credible.”).

However, the evidence must be such that it will support a rational jury finding with respect to each
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element of the defense. Shaw, at 658. In other words, even when taken at face value and viewed

in the light most favorable to the defendant, if the evidence does not comport with a defensive

theory, a defendant is not entitled to the defensive instruction. See Ferrel, 55 S.W.3d at 591.

                                            Discussion

       To receive a defensive justification instruction, a defendant must first admit to the conduct

charged in the indictment and offer evidence justifying the conduct. Shaw, 243 S.W.3d at 659 (“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”); see also Young v. State, 991 S.W.2d 835,

838 (Tex. Crim. App. 1999).

       As noted above, Marroquin denied the allegations in the indictment. According to both

Marroquin’s and Torres’s testimony, Marroquin did not attempt to take Officer Silva’s weapon at

any time. By denying all elements of the alleged offense, including the culpable mental state,

Marroquin did not seek to justify otherwise criminal conduct. See Johnson v. State, 715 S.W.2d

402, 406 (Tex. App.—Houston [14th Dist.] 1986, pet. ref’d). Therefore, only the evidence

presented by the State could have raised the defensive issue. Shaw, 243 S.W.3d at 657–58; Ferrel,

55 S.W.3d at 591.

       During his testimony, Officer Silva admitted to using force against Marroquin, but not until

after Marroquin engaged him in a physical struggle. Officer Silva’s testimony, which was

corroborated by Terrazas’s testimony, indicated Marroquin was the aggressor during the

altercation. Terrazas testified Marroquin refused to cooperate with Officer Silva’s instructions and

used his body to “bump” Officer Silva before Officer Silva put Marroquin on the floor and

attempted to hold him there to gain control of the situation. Both Terrazas and Officer Silva



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testified Marroquin attempted to reach for Officer Silva’s weapon. Our review of the COBAN

recording corroborates Officer Silva’s testimony.

       This is some evidence of Marroquin’s attempt to take the weapon as well as some evidence

Officer Silva used force to subdue Marroquin and prevent him from taking the weapon. However,

we are not convinced this constitutes some evidence of Officer Silva “using force against

[Marroquin] in excess of the amount of force permitted by law” prior to Marroquin’s attempt to

take Officer Silva’s weapon. See TEX. PENAL CODE ANN. § 38.14(d) (stating it is a defense to

prosecution if the defendant attempted to take the weapon from an officer who was using force

against the defendant “in excess of the amount of force permitted by law”).

       The Penal Code does not specifically define what force is “in excess of the amount of force

permitted by law.” However, two of our sister courts in unpublished opinions have interpreted

this phrase to mean “excessive force.” See Rico v. State, Nos. 13-08-00257-CR and 13-08-00258-

CR, 2009 WL 1623343, at *6 (Tex. App.—Corpus Christi 2009, pet. ref’d) (not designated for

publication); Hall v. State, Nos. 03-99-00339-CR and 03-99-00340-CR, 2000 WL 234814, at *9-

10 (Tex. App.—Austin 2000, pet. ref’d) (not designated for publication). We agree, for purposes

of this analysis, that force in excess of the amount of force permitted by law is equitable to the

term excessive force.

       Although excessive force has not been examined previously in the context of section

38.14(d), we find the examination of excessive force in the context of Fourth Amendment claims

to be instructive. In the Fourth Amendment context, we review excessive force claims using an

objectively reasonable standard. Hereford v. State, 339 S.W.3d 111, 119 (Tex. Crim. App. 2011).

We evaluate whether, given the facts supported by the record, the force that was used was

objectively reasonable. Id.; see Graham v. Connor, 490 U.S. 386, 396 (1989).



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       In this case, the record indicates Marroquin became aggressive toward Officer Silva before

any use of force occurred. Terrazas testified Marroquin was the aggressor and the altercation was

initiated by Marroquin physically engaging Officer Silva. Further, the record indicates the force

used by Officer Silva was limited to gaining control of the situation and preventing Marroquin

from taking the officer’s weapon. Officer Silva testified he put Marroquin on the floor and used

his body weight against him to gain control of the situation. Officer Silva further testified he did

not strike Marroquin until after Marroquin attempted to take the weapon. Although Marroquin

presented medical records indicating he sustained injuries, there was no evidence presented to

establish the altercation with Officer Silva was the cause of the injuries. Both Officers Silva and

Appelt testified Marroquin demonstrated no signs of injury immediately following the incident.

       The record before us supports a conclusion that Officer Silva’s actions in subduing

Marroquin and preventing him from taking the weapon were reasonable under the circumstances.

The record further supports a conclusion that the force used by Officer Silva occurred in response

to Marroquin’s initial aggression and his attempt to take Officer Silva’s weapon. Accordingly, the

force used by Officer Silva was not “in excess of the amount permitted by law.”

       Marroquin’s defensive evidence neither admitted to each element of the offense, nor

provided a justification for committing the offense. Further, even taken at face value and in the

light most favorable to Marroquin, the State’s evidence did not present “some evidence” Officer

Silva used force in excess of what is permitted by law. See Shaw, 243 S.W.3d at 657–58; Ferrel,

55 S.W.3d at 591. Thus, the evidence did not comport with the 38.14(d) defensive theory. See

Ferrel, 55 S.W.3d at 591. Consequently, Marroquin was not entitled to the requested defensive

instruction, and the trial court did not err by denying Marroquin’s request for a defensive

instruction pursuant to section 38.14(d).

       Marroquin’s sole issue on appeal is overruled.
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                                        CONCLUSION

     For the foregoing reasons, the trial court’s judgment is affirmed.

                                                     Irene Rios, Justice

DO NOT PUBLISH




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