                                  NO. 07-06-0483-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                 DECEMBER 22, 2008

                         ______________________________


                           TIMOTHY UDDLEY, APPELLANT

                                            v.

                         THE STATE OF TEXAS, APPELLEE

                       _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2006-411844; HON. JIM BOB DARNELL, PRESIDING

                        _______________________________

Before CAMPBELL, HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


      Appellant Timothy Uddley appeals from his jury conviction of the offense of murder

and the resulting sentence of life imprisonment in the Institutional Division of the Texas

Department of Criminal Justice. Through three issues, appellant contends the trial court

erred by not charging the jury on the issues of self-defense or defense of property and

erred by excluding evidence relating to the victim’s history of violence and the

circumstances of the relationship between appellant and the victim. We affirm.
                                        Background


       By a February 2006 indictment, appellant was charged with knowingly and

intentionally causing the death of Andrea Mendoza by stabbing her with a knife. The

indictment also included an enhancement paragraph setting forth appellant’s previous

felony conviction for attempted murder with a deadly weapon.


       Appellant and Andrea Mendoza were married in February 2005 and had an infant

child together. The couple moved into an apartment but, because of marital difficulties,

Mendoza moved out in July 2005, taking her clothes and the baby. About a week later,

during the early morning hours, appellant stabbed Mendoza with a knife, killing her. The

stabbing occurred in the apartment’s living room. Appellant was charged with murder and

contrary to his not-guilty plea, the jury found him guilty as charged in the indictment. After

also finding appellant had committed one prior felony, the jury assessed punishment at life

imprisonment and a $10,000 fine. This appeal followed.


                                          Analysis


       Via three issues, appellant contends the trial court erred in refusing to instruct the

jury on self-defense and defense of property and erred in excluding evidence of Mendoza’s

history of violence, especially against appellant, and the circumstances of the relationship

between appellant and Mendoza. For the reasons that follow we find no error.




                                              2
Issues One and Two–Entitlement to Instructions on Self-Defense and Defense of Property


Standard


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

applicable to the case; not expressing any opinion as to the weight of the evidence, not

summing up the testimony, discussing the facts or using any argument in his charge

calculated to arouse the sympathy or excite the passions of the jury.” Tex. Code. Crim.

Proc. Ann. art 36.14 (Vernon 2007). When evidence from any source raises the issue of

a lesser included offense or a defensive theory, it must be included in the charge. Gibson

v. State, 726 S.W.2d 129, 132 (Tex.Crim.App. 1987). The court is not required to charge

the jury on an issue not raised by the evidence. Muniz v. State, 851 S.W.2d 238, 254

(Tex.Crim.App. 1993); Carrillo v. State, 591 S.W.2d 876, 890 (Tex.Crim.App. 1979).


       A defense is raised1 if there is evidence in the record making a prima facie case for

the defense. A prima facie case is that “minimum quantum of evidence necessary to

support a rational inference that [an] allegation of fact is true.” Shaw v. State, 243 S.W.3d

647, 657 (Tex.Crim.App. 2007), quoting Tompkins v. State, 774 S.W.2d 195, 202

(Tex.Crim.App. 1987). Therefore, a defense is raised by the evidence if there is some

evidence, from any source, on each element of the defense that, if believed by the jury,

would support a rational inference that the element is true. Id. In determining whether a

defense is thus supported, a court must rely on its own judgment, formed in the light of its

       1
        Or “supported,” in the language of section 2.03(c) of the Texas Penal Code. Tex.
Penal Code Ann. § 2.03(c) (Vernon 2003); Shaw v. State, 243 S.W.3d 647, 657
(Tex.Crim.App. 2007).

                                             3
own common sense and experience, as to the limits of rational inference from the facts

proven. Id. If a defense is supported by the evidence, then the defendant is entitled to an

instruction on that defense, even if the evidence supporting the defense is weak or

contradicted, and even if the trial court is of the opinion that the evidence is not credible.

Shaw, 243 S.W.3d at 657. But, the evidence must be such that it will support a rational

jury finding as to each element of the defense. Id. Whether a defense is supported by the

evidence is a sufficiency question reviewable on appeal as a question of law. Id. at 658.


       Self-Defense


       In his first issue, appellant contends the evidence at trial supported his requested

instruction on self-defense and the trial court’s failure to submit proper defensive charges

was harmful error.2 We disagree.


           The use of force against another for self-defense is justified “when and to the

degree the actor reasonably believes3 the force is immediately necessary to protect himself

against the other’s use or attempted use of unlawful force.” Tex. Penal Code Ann. §

9.31(a) (Vernon 2007). The use of deadly force4 requires a showing that the use of deadly


       2
        An error which has been properly preserved, as here, will call for reversal as long
as the error is not harmless. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.
1985).
       3
        “Reasonable belief” is defined as belief that would be held by an ordinary and
prudent man in the same circumstances as the actor. Tex. Penal Code Ann. § 1.07(a)(42)
(Vernon 2006).
       4
         “Deadly force” is defined as force that is intended or known by the actor to cause,
or in the manner of its use or intended use is capable of causing, serious or bodily injury.
Tex. Penal Code Ann. § 9.01(3) (Vernon 2007).

                                              4
force is immediately necessary.5 Tex. Penal Code Ann. § 9.32 (Vernon 2007). In

determining whether a defendant has a reasonable belief that action was immediately

necessary for his protection, the facts and circumstances must be judged from the

viewpoint of the defendant alone.             Juarez v. State, 886 S.W.2d 511, 514

(Tex.App.–Houston [1st Dist.] 1994, pet. ref’d). We view the evidence in the light most

favorable to appellant to determine whether it is sufficient to raise the issue of self-defense.

Preston v. State, 756 S.W.2d 22, 24 (Tex.App.–Houston [14th Dist.] 1988, pet. ref’d).


       As a general matter, to be entitled to a justification defensive instruction, a

defendant must admit the conduct charged in the indictment and then offer evidence

justifying the conduct. Shaw, 243 S.W.3d at 659 (a defensive instruction is appropriate

only 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); Young v. State, 991 S.W.2d 835, 838 (Tex.Crim.App. 1999);

Withers v. State, 994 S.W.2d 742, 745 (Tex.App.–Corpus Christi 1999, pet. ref’d), citing

Reich-Bacot v. State, 976 S.W.2d 678, 679 (Tex.Crim.App. 1998) (to be entitled to a

charge on self-defense, a defendant is essentially required to admit committing the conduct

giving rise to the indictment). Appellant testified at trial but maintained he did not

remember the events leading to Mendoza’s death. Appellant’s testimony did not raise the

defensive theories he advances; therefore, only the State’s evidence could possibly have

raised the issue of self-defense.         Johnson v. State, 715 S.W.2d 402, 405-06

       5
         A person who has a right to be present at the location where the deadly force is
used, who has not provoked the person against whom the deadly force is used, and who
is not engaged in criminal activity at the time the deadly force is used is not required to
retreat before using deadly force. Tex. Penal Code Ann. § 9.32(c) (Vernon 2007).
                                              5
(Tex.App.–Houston [1st Dist.] 1986, pet. ref’d).   From our review of the record, however,

we find the State’s evidence did not raise either defensive theory advanced by appellant.


       On appeal, appellant points to evidence of the couple’s turbulent relationship, and

Mendoza’s violence toward him. With respect to the circumstances of Mendoza’s death,

appellant relies on physical evidence that a window of the apartment was broken in and

on the testimony of Mendoza’s brother, who also was living in the apartment at the time.

The brother testified he saw appellant in the apartment’s living room shortly before the

stabbing. He said nothing about seeing Mendoza. Appellant contends this testimony leads

to a reasonable inference Mendoza broke through the window to get into his apartment.6

Thus, appellant argues, evidence reflects appellant was in his habitation, giving him the

right to use deadly force under Sections 9.32(a)(1) and 9.42(1), and he did not have a duty

to retreat under Section 9.32(a)(2) regardless whether he ever determined the identity of

the intruder.7 While appellant acknowledges in his brief that Mendoza was likely unarmed,

he argues he perceived danger and points to his allegation that Mendoza had previously

threatened to break into the apartment and kill him.8 He points also to the violent nature


       6
        At the time of her death, Mendoza was no longer living in the apartment with
appellant and the parties had removed her name from the lease.
       7
        Because this offense occurred prior to the September 1, 2007 effective date of the
current statute, we apply the statute then in effect. However, we do not find it necessary
to address appellant’s duty to retreat.
       8
         In making his argument, appellant relies upon Hamel v. State, 916 S.W.2d 491,
493 (Tex.Crim.App. 1996) (threat by victim in addition to victim’s action of going to car to
get a gun made appellant’s belief, though incorrect, that deadly force was immediately
necessary to protect himself against attempted use of deadly force reasonable; appellant
entitled to self-defense instruction); VanBrackle v. State, 179 S.W.3d 708, 713
(Tex.App.–Austin 2005, no pet.) (the evidence regarding the shooting was varying and
inconsistent and the appellate court could not say there was no reasonable possibility that
                                             6
of the apparent break-in, Mendoza’s brother’s testimony that he thought it was a break-in,

the fact it occurred at about 3:00 a.m. in a high crime area, and that there was minimal

lighting coming from another room. Lastly, appellant points to his testimony that he was

very intoxicated that night and argues he could have been operating under an impaired

perception of events.


       The justification of self defense is available to a defendant who “reasonably believes

the force is immediately necessary to protect the actor against the other’s use or attempted

use of unlawful force.” Tex. Penal Code Ann. § 9.31(a) (Vernon 2007). The actor’s belief

that the force was immediately necessary “is presumed to be reasonable if the actor: (1)

knew or had reason to believe that the person against whom the force was used: (A)

unlawfully and with force entered, or was attempting to enter unlawfully and with force, the

actor’s occupied habitation, vehicle, or place of business or employment. Tex. Penal Code

Ann. § 9.31(a)(1)(A) (Vernon 2007). A person is justified in using deadly force against

another if the actor would be justified in using force against the other under Section 9.31

and when and to the degree the actor reasonably believes the deadly force is immediately

necessary to protect the actor against the other’s use or attempted use of unlawful deadly

force. Tex. Penal Code Ann. § 9.32(a)(1), (2)(A) (Vernon 2007); Juarez, 886 S.W.2d at

514.




the jury would have found that appellant acted in self-defense; appellant was thus harmed
by failure to submit self-defense instruction); and Espinoza v. State, 951 S.W.2d 100, 101
(Tex.App.–Corpus Christi 1997, pet. ref’d) (if investigation reveals that the victim was
unarmed, the defendant’s claim of self-defense must rest entirely upon a perceived
danger) (emphasis in original). We find these cases distinguishable.
                                              7
       To be entitled to an instruction on self-defense under the circumstances here,

appellant had to show some evidence, from any source, on each element of the defense.

Shaw, 243 S.W.3d at 657-58. Even were we to agree with appellant that, judged from his

viewpoint, some evidence indicates he was justified in using force as described in Section

9.31 of the Penal Code, we see no evidence he reasonably believed deadly force was

immediately necessary to protect himself against Mendoza’s use or attempted use of

unlawful deadly force. See Tex. Penal Code Ann. § 9.32(2)(A) (Vernon 2007). Mendoza’s

brother testified he heard a crash, came downstairs, and saw appellant on top of Mendoza,

beating her and choking her with his hands. When the brother recognized it was Mendoza

appellant was choking, he grabbed appellant by the neck to pull him off of Mendoza, and

tried to “talk some sense” into appellant. Appellant punched him in the side of his head.

Mendoza was on the floor in a prone position, gasping for air and attempting to crawl out

of the apartment when appellant went into the kitchen to retrieve a knife. Appellant

stabbed Mendoza in the back four times.9 The knife broke and appellant went to the

kitchen a second time, retrieved a second knife, and stabbed Mendoza approximately

twenty-three additional times, killing her.10 Assuming appellant was justified in using some

force to the point Mendoza was subdued, even under appellant’s view of the evidence, it

would not support a rational inference his actions were immediately necessary to protect



       9
      At trial, the medical examiner acknowledged that any one of these four initial stab
wounds could have been fatal.
       10
         The medical examiner testified at trial that the neck wound and the wound on
Mendoza’s back were fatal. He further testified that some of the wounds on Mendoza’s
face were also fatal wounds. Specifically, Mendoza sustained a cheek wound that the
medical examiner testified illustrated the knife’s path through the sinus underneath her eye
and into the brain.
                                               8
himself against her use or attempted use of deadly force. We agree with the trial court

appellant was not entitled to an instruction on self-defense. We overrule appellant’s first

issue.


         Defense of Property


          Appellant bases his argument regarding his entitlement to a defense of property

instruction on the same evidence he argues in support of his first issue. He asserts the

evidence supports a conclusion that he was entitled to an instruction on defense of

property because Mendoza was in the process of the imminent commission of robbery,

aggravated robbery, burglary, theft during the nighttime, or criminal mischief during the

nighttime. Tex. Penal Code Ann. §§ 9.32(a)(2)(B) and 9.42(2)(A) (Vernon 2007). Penal

Code § 9.42 provides that a person is justified in using deadly force to defend property

under certain circumstances:


                 A person is justified in using deadly force against another to protect
         land or tangible, movable property: (1) if he would be justified in using force
         against the other under Section 9.41; and (2) when and to the degree he
         reasonably believes the force is immediately necessary: (A) to prevent the
         other’s imminent commission of arson, burglary, robbery, aggravated robbery,
         theft during the nighttime, or criminal mischief during the nighttime; or (B) to
         prevent the other who is fleeing immediately after committing burglary,
         robbery, aggravated robbery, or theft during the nighttime from escaping with
         the property; and (3) he reasonably believes that: (A) the land or property
         cannot be protected or recovered by any other means; or (B) the use of force
         other than deadly force to protect or recover the land or property would
         expose the actor or another to a substantial risk of death or serious bodily
         injury.


Tex. Penal Code Ann. § 9.42 (Vernon 2007).



                                               9
       In order for defense of property to apply, the actor must believe that deadly force

is immediately necessary to protect the property. Jackson v. State, 753 S.W.2d 706, 710

(Tex.App.–San Antonio 1988, pet. ref’d). Here, even if we assume Mendoza engaged in

criminal mischief by smashing through the window, by the time appellant first employed

deadly force, Mendoza was prone, gasping for breath, and attempting to crawl away. The

criminal activity had already been completed and nothing in the record supports the

conclusion that Mendoza was contemplating additional criminal mischief or any other

criminal activity. The evidence to which appellant points does not make a prima face case

for defense of property. See Hudson v. State, 145 S.W.3d 323, 325 (Tex.App.–Fort Worth

2004, pet. ref’d) (when there is no evidence of a belief that force is needed to defend

property, a criminal defendant is not entitled to a jury instruction on defense of property);

Hernandez v. State, 914 S.W.2d 218, 224 (Tex.App.–El Paso 1996, pet. ref’d) (appellant

not entitled to an instruction on defense of property because there was no evidence of

imminent criminal mischief as the drive-by shooting of appellant’s home had already been

completed prior to utilization of deadly force). We overrule appellant’s second issue.


            Issue Three--Exclusion of Evidence of Mendoza’s Character and
                              Circumstances of Relationship


       In appellant’s last issue, he contends that the trial court harmfully erred by excluding

relevant evidence relating to Mendoza’s violent tendencies and the circumstances of the




                                             10
relationship between Mendoza and appellant.11 The trial court, however, permitted the

testimony of a number of defense witnesses regarding the relationship between the

parties. We find the excluded evidence related only to self-defense and defense of

property. Given our disposition of appellant’s first two issues, it follows the trial court

properly excluded this evidence. We overrule appellant’s third issue.


         Having overruled each of appellant’s three issues, we affirm the judgment of the trial

court.


                                      James T. Campbell
                                           Justice


Do not publish.




         11
          Appellant argues that the evidence the trial court excluded fell squarely within
Article 38.36(a) of the Code of Criminal Procedure, showing either that Mendoza was the
first aggressor or that appellant had a reasonable apprehension of danger.
                                            11
