                                 NO. 07-11-0328-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL D

                                  APRIL 9, 2012
                         _____________________________

                            AUSTIN CHASE CARRASCO,

                                                                Appellant
                                           v.

                               THE STATE OF TEXAS,

                                                                Appellee
                         _____________________________

            FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

             NO. 22,384-B; HONORABLE JOHN B. BOARD, PRESIDING
                        _____________________________

                              Memorandum Opinion
                         _____________________________

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

      Austin Chase Carrasco appeals his conviction of assault by strangulation and

contends that 1) the trial court erred in denying him an instruction on the defense of

property, and 2) the evidence was insufficient to support the conviction. We affirm the

judgment.

      Background

      Appellant and the complainant, Danielle Wilcox, were living together in a trailer

house in a rural area. After spending the evening of April 10, 2010, at several bars,
they returned home. However, appellant became angry because Wilcox received a

telephone call from a man she had previously dated. Appellant and Wilcox argued,

after which she informed him that she wanted to leave.          As she was packing her

belongings, appellant grabbed her property and a mattress and threw them outside of

the trailer.   He also took Wilcox‟ car keys.        Wilcox called 911, and when law

enforcement arrived, appellant ran away.         Wilcox declined the deputy‟s offer of

transportation because she wanted to stay to search for her car keys and secure her

vehicle. However, she informed the deputies that appellant had marijuana in the trailer.

They confiscated the marijuana and left.

       When appellant returned home, Wilcox asked him for her car keys. Appellant

informed her he did not have them, became angry that his marijuana was gone, and

asked her where it was. Then, he pushed her down the hall and into a bedroom,

pinned her back to the floor, said “„if I‟m going to the pen it is going to be worth it,‟”

wrapped his hands around her neck, and applied pressure for approximately a minute.

When asked if she could breath while appellant‟s hands were around her throat, she

replied, “for the majority of the time . . . . ” Appellant eventually released his grasp on

her neck, grabbed her hair, and threw her out of the trailer. Thereafter, she sat outside

until one of the deputies who had been at the trailer earlier drove by.

       The deputy stopped upon seeing Wilcox and approached her. He observed her

to be distraught and sobbing. She also had “red marks that appeared to me like fingers

or such around her neck,” according to the deputy.




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        Issue 1 – Defense of Property Instruction

        Because there was evidence that Wilcox was no longer welcome in the trailer

when appellant began throwing her property out the door, he believed himself entitled to

an instruction on the defense protecting property. We disagree and overrule the issue.

        Section 9.41 of the Texas Penal Code states that a person in lawful possession

of land or tangible movable property “is justified in using force against another when and

to the degree the actor reasonably believes the force is immediately necessary to

prevent or terminate the other‟s trespass on the land or unlawful interference with the

property.” TEX. PENAL CODE ANN. §9.41(a) (West 2011). By invoking the foregoing

defense, appellant asks us to conclude that there existed some evidence upon which a

rational jury could reasonably deduce that he “reasonably believe[d]” that pinning Wilcox

to the ground and squeezing her neck while atop her was immediately necessary to

prevent or terminate her trespass upon his property.

        In determining the legitimacy of appellant‟s request, we assume arguendo that

there was evidence he was in lawful possession of the trailer home when he 1) began

his assault upon Wilcox and 2) decided to make his trip “to the pen . . . worth it.” We

acknowledge that by then he had thrown items of property belonging to her out the

door.    Such could indicate that she was no longer welcome and was possibly

trespassing. But, that alone did not invest him with the right to the instruction. As

required by §9.41, there must also exist of record some evidence that appellant

“reasonably believed” force was immediately necessary to prevent or terminate the

trespass. And, therein lies the problem here. Appellant cites us to no such evidence.

Nor did we find any.



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       Instead, what we found of record was evidence that before appellant placed his

hands around his victim‟s throat, Wilcox had already expressed her desire to go. But,

appellant had taken the keys to her vehicle. Furthermore, it was nightime, and the

trailer was in a rural area.     Moreover, after he denied having the keys and she

demanded that he “find them,” he directed her to find them herself. That, at the very

least, evinces an implicit invitation for her to remain on the property so that she can

conduct her search. To that, we add appellant‟s conduct. He did not lead her outside

or to a door through which she could go outside.

       Instead, appellant shoved her away from the avenue of egress, through the

trailer‟s hall, and into the bedroom. There, he sat atop her, grasped her throat and

began squeezing for approximately a minute. It is farfetched to suggest that a rational

juror could reasonably interpret the act of pulling someone deeper into the bowels of an

abode to commit an assault as effort to terminate a trespass or otherwise remove the

trespasser. See Hudson v. State, 145 S.W.3d 323, 325 (Tex. App.–Fort Worth 2004,

pet. ref‟d) (finding no evidence of a belief that force was needed to defend the

defendant‟s property when there was no evidence the other person intended to remain

on the property or damage it and the defendant grabbed the window of the other

person‟s truck to prevent him from leaving). And, when his own words about making a

trip to the “pen” be “worth it” are included in the mix, a rational juror could only interpret

his use of force as a desire to retaliate against or punish Wilcox for the seizure.

       Nor do we find evidence of record suggesting in any way that one in appellant‟s

position would reasonably believe the degree of force utilized was immediately

necessary. Appellant was taller than Wilcox and no doubt stronger given that each



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shove exerted by him resulted in her repeatedly falling to the floor.         There is no

evidence that she had or used a weapon against him in effort to remain in the trailer.

Nor is there evidence that she attempted to exert any type of physical force to remain

on the property. So, even if Wilcox had become a trespasser, nothing of record would

have entitled a jury to rationally conclude that he thought himself justified in forcing the

female to the ground and choking her to get her to leave.

       Simply put, no evidence appears of record which would have enabled a fact

finder to reasonably conclude that a person in appellant‟s position would or could

reasonably believe assaulting a female in the manner undertaken here was immediately

necessary to prevent or terminate a trespass.      So, the trial court was not obligated to

submit the instruction. Nor can we see any harm arising from the decision not to submit

the instruction. See TEX. R. APP. P. 44.2 (requiring the presence of harm before error is

reversible).   Nothing of record suggests the absence of the instruction in any way

contributed to or otherwise impacted the verdict reached or punishment levied.

       Sufficiency of the Evidence

       Next, appellant challenges the sufficiency of the evidence underlying the guilty

verdict. We overrule the issue.

       The offense of assault by strangulation occurs by an accused “intentionally,

knowingly, or recklessly impeding the normal breathing or circulation of the blood of the

person by applying pressure to the person‟s throat or neck or by blocking the person‟s

nose or mouth.” TEX. PENAL CODE ANN. §22.01(b)(2)(B) (West 2011). According to

appellant, there is no evidence that his applying pressure to Wilcox‟ throat impeded her

normal breathing or blood circulation. In making that observation, however, he cites us



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to no authority suggesting that one‟s breathing must be completely stopped for it to be

impeded. Nor were we provided authority indicating that effort to impede the normal

circulation of blood must result in unconsciousness, as appellant tends to insinuate.

       Indeed, the idea of impeding connotes interference or hinderance.                See

MERRIAM-W EBSTER‟S COLLEGIATE DICTIONARY 623 (11th ed. 2003) (so defining the word).

With that in mind, we note Wilcox‟ statement that she was able to breath for a “majority”

of the time. Nowhere did she state that she was able to breath throughout the entire

episode. So, that is some evidence that the pressure applied by appellant to her throat

obstructed or hindered her breathing at one point, though not throughout the choking

episode. To that, we add the evidence of red and white marks appearing “as fingers”

around her neck.      According to medical testimony presented at trial, such marks

evinced the presence of “burst” capillaries where the pressure was applied. It also

illustrated that pressure caused blood to “escape” the area.       A rational jury could

reasonably infer that the application of force sufficient to erupt blood vessels or

capillaries and cause blood to escape tissue interfered with or hindered the normal

circulation of the blood, as required by the statute.

       In short, there is some evidence supporting the jury‟s verdict that each element of

the crime at issue was proven beyond reasonable doubt. So, we must reject appellant‟s

argument to the contrary.

       Accordingly, the judgment is affirmed.



                                                  Brian Quinn
                                                  Chief Justice
Do not publish.



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