                                        NO. 07-10-0331-CR

                                 IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                           AT AMARILLO

                                              PANEL A

                                           MAY 18, 2012

                             ______________________________


                            BRENTON W. SHADDEN, APPELLANT

                                                  V.

                              THE STATE OF TEXAS, APPELLEE

                           _________________________________

              FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

               NO. 2008-420,688; HONORABLE JIM B. DARNELL, JUDGE
                        _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                   MEMORANDUM OPINION


       Following a jury trial, Appellant, Brenton W. Shadden, was convicted of the

second degree felony offense of aggravated assault with a deadly weapon,1 by using a

knife,2 and the first degree felony offense of aggravated assault with a deadly weapon



1
See Tex. Penal Code Ann. § 22.02(a)(2) (West 2011).
2
 Although Count I of the indictment alleged Appellant committed an aggravated assault with a deadly
weapon against a public servant, the jury convicted Appellant of the lesser-included offense--aggravated
assault with a deadly weapon.
against a public servant,3 using a wooden pole.4 The trial court assessed two ten year

sentences of confinement and ordered that the sentences be served concurrently. In a

single issue, Appellant asserts the trial court erred by failing to charge the jury with an

instruction of self-defense against multiple assailants. We affirm.


                            FACTUAL AND PROCEDURAL BACKGROUND


        Lubbock Sheriff's Department Deputies Brian Thieme and Jordan Gladman were

dispatched to Appellant's residence on a domestic dispute. Upon arrival, they learned

that Appellant had locked himself in a bedroom of the residence with a six pack of beer

and four butcher knives, after having been drinking excessively and expressing his

desire to commit suicide. After being refused entry into the bedroom for purposes of a

welfare check, the deputies warned Appellant that they were going to kick the door

down. Deputy Gladman drew his service weapon, Deputy Thieme drew a TASER gun,

and the two deputies forced their entry into the bedroom. Upon entry, Appellant had a

knife in his hand. Deputy Thieme's attempt to deploy his TASER gun failed and a

scuffle ensued. After being struck by Appellant with a wooden stick, Deputy Gladman

was able to use his TASER on Appellant and he was subdued. By Appellant's account,

he was unaware that the two men entering the bedroom were law enforcement officers.

He contends the knife was knocked from his hand by Deputy Thieme's attempted use of

his TASER gun and his use of the wooden stick was solely for the purpose of defending

himself against his perceived attack by Deputy Gladman.

3
See Tex. Penal Code Ann. §§ 22.02(a)(2) and 22.02(b)(2)(B) (West 2011).
4
 Count II of the indictment alleged Appellant committed an aggravated assault with a deadly weapon, to-
wit: a wooden pole, against a public servant.


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       At the trial court’s charge conference, Appellant first objected to the trial court’s

failure to issue a jury charge describing the circumstances under which a person is

justified in using force to resist an arrest. See Tex. Penal Code Ann. § 9.31(c) (West

2011).5 See also Kemph v. State, 12 S.W.3d 530, 531-32 (Tex.App.—San Antonio

1999, pet. ref’d).    After acknowledging that defense was "not exactly applicable to

aggravated assault on a peace officer," Appellant's objection morphed into an objection

pertaining to the absence of a jury instruction on a person's right to use self-defense

against multiple assailants. The trial court denied Appellant’s request. On appeal, while

Appellant couches his argument as a question of whether the trial court erred by failing

to include an instruction on the right to use force in self-defense against multiple

persons, he argues that he was justified in using force because the deputies used

excessive force.


                                           ANALYSIS


       In analyzing a jury-charge issue, we first determine if error occurred; and, only if

we so find, do we proceed with a harm analysis. Ngo v. State, 175 S.W.3d 738, 743

(Tex.Crim.App. 2005). Here, we find no charge error.


       A defendant is entitled to a self-defense charge on the right to use force against

multiple assailants if "there is evidence, viewed from the accused's standpoint, that he

was in danger of an unlawful attack or threatened attack at the hands of more than one

assailant." Frank v. State, 688 S.W.2d 863, 868 (Tex.Crim.App. 1985) (quoting Wilson

v. State, 140 Tex. Crim. 424, 145 S.W.2d 890, 893 (1940)). Therefore, it is axiomatic

5
 We will refer to provisions of the Texas Penal Code as “section ____” or “§ ____” throughout the
remainder of this opinion.

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that in order to be justified in using force against any of the multiple assailants, the

accused must be justified in using force against at least one of his perceived assailants.


       Because the "multiple assailants" in this case were all sheriff's deputies

attempting to subdue and detain Appellant for purposes of a welfare check, to justify his

use of force he must have been justified in using force against at least one of those

perceived assailants. The right to use force against a person who is attempting to effect

an arrest or search is, however, limited. See § 9.31(c); Porteous v. State, 259 S.W.3d

741, 747 (Tex.App.—Houston [1st Dist.] 2007, no pet.).


       In pertinent part, section 9.31(c) limits the right to use of force against a peace

officer as follows:

       (c) The use of force to resist arrest or search is justified:

              (1) if, before the actor offers any resistance, the peace
              officer (or person acting at his direction) uses or attempts to
              use greater force than necessary to make the arrest or
              search; and

              (2) when and to the degree the actor reasonably believes the
              force is immediately necessary to protect himself against the
              peace officer’s (or other person’s) use or attempted use of
              greater force than necessary.


       Here, we find there was no evidence offered by either side that Appellant

perceived that either deputy used or attempted to use greater force than necessary to

effect Appellant’s arrest. Prior to attempting to enter Appellant’s bedroom, Deputies

Thieme and Gladman had been told that Appellant had been drinking all day with

nothing to eat and was threatening to kill himself. Appellant’s wife told the deputies that

he had thrown a glass of water at her and she had hidden his gun from him. The


                                               4
deputies were also told Appellant had taken four butcher knives and a six-pack of beer

into his bedroom before locking the door.


      When Appellant refused to open the bedroom door and resisted any entry by

leaning against the door, both deputies forced the bedroom door open and Deputy

Gladman entered with his gun drawn because he had information Appellant was armed

and had committed a prior assault. No force was exerted against Appellant by either

deputy until after Appellant brandished a kitchen knife. Although the deputies used

some force, they did not use excessive force. Goddard v. State, 154 S.W.3d 231, 231

(Tex.App.—Amarillo 2005, no pet.) (mere act of grabbing a suspect’s arm or arms not

excessive force). See Gonzales v. Kelley, No. 01-10-00109-CV, 2010 Tex. App. LEXIS

5113 at *18-19 (Tex.App.—Houston [1st Dist.] 2010, no pet.) (reasonable for officer to

believe use of TASER was justified to secure suspect in response to specific aggressive

acts); Bennett v. State, No. 06-07-00001-CR, 2007 Tex. App. LEXIS 5373 at *5-6

(Tex.App.—Texarkana 2007, pet. dism’d) (not designated for publication) (officer

approaching suspect with gun drawn does not constitute excessive force).


      Furthermore, as to Count 1 of the indictment (threatening Deputy Gladman with

imminent bodily injury with a knife), a self-defense instruction was unavailable because

that defense was inconsistent with Appellant's denial of the charged conduct; Ford v.

State, 112 S.W.3d 788, 794 (Tex.App.—Houston [14th Dist.] 2003, no pet.) (citing

Sanders v. State, 707 S.W.2d 78, 81 (Tex.Crim.App. 1986)), and a defendant is not

entitled to an instruction on self-defense if “he claims that he did not perform the

assaultive acts alleged, or that he did not have the requisite culpable mental state, or

both.” VanBrackle v. State, 179 S.W.3d 708, 715 (Tex.App.—Austin 2005, no pet.)

                                            5
(citing Ex parte Nailor, 149 S.W.3d 125, 134 (Tex.Crim.App. 2004)). Here, Appellant

denied threatening Deputy Gladman with a knife, in self-defense or otherwise, but

instead insisted that he dropped the kitchen knife after being tied up in the deputy's

TASER lines.6 As a result, because he specifically denies the conduct in question,

Appellant was not entitled to a self-defense instruction regarding Count 1 of the

indictment.     See Kimbrough v. State, 959 S.W.2d 634, 640 (Tex.App.—Houston [1st

Dist.] 1995, pet. ref’d) (no instruction on self-defense proper where appellant did not

admit to shooting gun).


        As to Count II of the indictment (causing bodily injury to Deputy Gladman by

striking him with a wooden pole), while Appellant does concede that he used a stick to

defend himself against a perceived attack, he contends that the foregoing analysis is

inapposite because, at the time he used that force to defend himself, he was unaware

that any of the men who entered his bedroom were peace officers. However, the record

reflects that, not only did both deputies identify themselves as peace officers before

entering the bedroom, both were wearing distinct law enforcement uniforms at the time

of the incident. A person charged with assaulting a public servant is presumed to have

known the person assaulted was a public servant if the person was wearing a distinctive

uniform or badge indicating the person's employment as a public servant.                         See §

22.02(c). Furthermore, Appellant never requested a mistake of fact instruction. See §

8.02.




6
On cross-examination, he testified that “no sir, I did not throw the knife at Deputy Gladman.”

                                                    6
       Accordingly, we find the trial court committed no error in denying the instruction

pertaining to the right to use force in self-defense against multiple assailants.

Appellant’s single issue is overruled.


                                         Conclusion


       The trial court’s judgment is affirmed.




                                                 Patrick A. Pirtle
                                                     Justice

Do not publish.




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