      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-09-00175-CR



                                  Michael Joseph Kipp, Appellant

                                                   v.

                                    The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
           NO. 63,177, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING



                              MEMORANDUM OPINION


                 A jury found appellant Michael Joseph Kipp guilty of the offense of

aggravated assault with a deadly weapon and assessed punishment at seven years’ imprisonment.

See Tex. Penal Code Ann. § 22.02 (West Supp. 2008). On appeal, Kipp argues that the trial court

erred in refusing his request to include a self-defense instruction in the jury charge. Because we hold

that the trial court did not err in failing to include a self-defense instruction, we affirm the judgment

of conviction.


                                          BACKGROUND

                 The events giving rise to the instant prosecution took place on May 21, 2008. On that

date, Kipp informed his girlfriend, Nicole Kiefer, that he disapproved of her spending time with her

ex-boyfriend, Scott McQuagge. Kiefer then sent McQuagge a text message stating that she could

no longer see or talk to him. Upon receiving this message, McQuagge drove to Kiefer’s home,
where he found Kiefer and Kipp sitting outside in Kipp’s car. Kipp testified that as he exited his

vehicle to speak to McQuagge, he retrieved a metal pipe from his vehicle for the purpose of

protecting himself.1 McQuagge and Kipp began arguing loudly in the street, leading Kiefer’s mother

to come out of the house and announce that she had called the police. McQuagge then sat down on

the hood of Kipp’s car to wait for the police and refused to move, despite Kipp’s repeated requests

that he do so. At trial, each side presented significantly different versions of the events that followed

McQuagge’s refusal to move from the hood of the car.

                The State primarily relied on the testimony of David Smith, a nurse who happened

to be driving through the neighborhood at the time of the argument between McQuagge and Kipp.

Smith testified that as he drove by the two men, their facial expressions and body language led him

to believe that the argument was on the verge of turning physical. Smith then turned his car around

and parked on the street a few houses down “to see if everything was going to be all right.” Smith

testified that he saw McQuagge sit on Kipp’s car with his arms folded across his chest, and that Kipp

initially walked away from the car and out of Smith’s line of sight, but then returned into view

holding a pipe in his right hand. Smith described the pipe as being two to two and a half feet long

and “as big around as a golf ball.” According to Smith, Kipp then “raised the pipe up above his head

and to the right and swung it across him towards the left.” Smith explained that he did not see the

pipe actually strike McQuagge because Kipp was blocking his view, but that, after Kipp swung the

pipe, McQuagge “rolled off the side of [the] car kind of down on to the driveway.” Smith further




        1
        In her testimony, Kiefer described the pipe as a “pullup pipe,” meant for use as exercise
equipment.

                                                   2
testified that even with Kipp blocking his view, he could see enough of McQuagge to verify that his

arms were still crossed when Kipp swung the pipe in his direction. Smith also stated that “there

was no time in between when the pipe was swung that [McQuagge] rolled off the side of the car.”

After McQuagge fell to the ground, Smith got out of his vehicle and began to administer medical

care to McQuagge.

               Kiefer also testified that she witnessed Kipp hit McQuagge with the pipe, and that

McQuagge then “fell down like a tree.” This testimony was consistent with the written statement

she provided to police officers at the scene of the assault, but was inconsistent with a second written

statement she provided to police at the request of Kipp’s mother, in which she claimed not to have

seen Kipp hit McQuagge with the pipe. Kiefer testified that pressure from Kipp and his mother led

her to provide the second written statement and falsely claim that she did not see Kipp use the pipe.

Kipp conceded in his testimony that before Kiefer prepared her second written statement, he told her,

“I need you to say I didn’t hit him with the pipe.”2

               McQuagge testified that he did not know whether Kipp hit him with his fist or the

pipe because the last thing he remembered about the incident was sitting on Kipp’s car with his arms

crossed and looking in the direction of the house, away from Kipp. According to McQuagge, the

next thing he knew, he was waking up in the hospital. McQuagge did testify that he never attempted

to hit Kipp at any time.

               Kipp denied hitting McQuagge with the pipe, but testified that while McQuagge was

sitting on the car, “I saw a quick movement in his hands and not wanting to get hit myself, I punched



       2
          Kipp took the position at trial that by making this statement, he was simply telling Kiefer
that she needed to tell the truth.

                                                  3
him in the mouth.” McQuagge then “went limp and fell face-first on the ground.” Kipp further

testified that while he did hold the pipe in his left hand throughout the argument, he used his right

hand to punch McQuagge and never raised the pipe above his waist.3 Kipp conceded at trial that

McQuagge never hit him, that he never saw McQuagge with a weapon, and that the pipe he retrieved

from his vehicle was capable of causing death or serious bodily injury. On cross-examination, Kipp

described the “quick movement” in McQuagge’s hands as the beginning of a swing, stating that

McQuagge made a fist and raised his hand about six inches before Kipp punched him.

                As a result of the assault, McQuagge suffered a scalp laceration, sinus injuries, and

severe facial fractures involving bones in his nose, jaw, cheek, and eye socket. McQuagge had his

jaw wired shut for several weeks and underwent facial reconstruction surgery that required four

titanium plates to be permanently implanted in his face. McQuagge also testified that he continues

to suffer from dizzy spells as a result of the injuries he sustained. McQuagge’s treating surgeon,

Dr. Lance Read, testified that if he had not surgically repaired McQuagge’s facial injuries,

McQuagge would have suffered the loss of function of his jaw and would be unable to chew

correctly. When asked his opinion on whether a pipe was the cause of McQuagge’s injuries, Read

responded, “I would say that a weapon was used for blunt force[] trauma to cause these injuries.”

Read further confirmed that the injuries appeared to be consistent with use of the pipe that Kipp

removed from his vehicle prior to the altercation with McQuagge. On cross-examination, Read



        3
           Officer Michael Watts, the first Killeen police officer to arrive at the scene, testified that
when he spoke to Kipp at the scene, Kipp told him “that he struck Mr. McQuagge in the head with
his fist but he was holding the pipe in that hand when he struck him.” This statement is inconsistent
with Kipp’s testimony that he was holding the pipe in his left hand when he punched McQuagge
with his right hand. Kipp testified that Watts may have misunderstood his statement at the scene
regarding which hand he used to hold the pipe.

                                                   4
testified, “It takes more than a fist to do that type—that severity of an injury.” Read also explained

that McQuagge had abrasions on the right side of his body, consistent with his falling to the ground

after he was struck, and that the facial injuries were located on the left side of his body, so that the

injuries to his face would not have been caused by the fall to the ground.

               During the charge conference, defense counsel requested a self-defense instruction,

which the trial court denied. The jury then found Kipp guilty of aggravated assault with a deadly

weapon and assessed punishment at seven years’ imprisonment. This appeal followed.


                                    STANDARD OF REVIEW

               When we review any alleged charge error, we first determine whether error actually

exists in the charge. See Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000); Mann v. State,

964 S.W.2d 639, 641 (Tex. Crim. App. 1998). If we determine that the jury charge does contain

error, we then determine whether any resulting harm requires reversal. See Ovalle, 13 S.W.3d at

786; Mann, 964 S.W.2d at 641. A defendant has a right to a jury instruction on any defensive issue

that has been raised by the evidence, regardless of whether the evidence is weak or strong,

unimpeachable or contradicted, and regardless of what the trial court may think of its credibility.

Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001); Granger v. State, 3 S.W.3d 36, 38

(Tex. Crim. App. 1999). This rule is designed to insure that the jury, not the trial court, will decide

the relative credibility of the evidence. Granger, 3 S.W.3d at 38. In deciding whether a defensive

theory is raised, the evidence is viewed in the light most favorable to the defense. Id. If the

testimony or other evidence viewed in the light most favorable to the defendant does not establish

self-defense, an instruction is not required. Ferrel, 55 S.W.3d at 591; Granger, 3 S.W.3d at 38.


                                                   5
                                           DISCUSSION

                In his sole point of error on appeal, Kipp argues that the trial court erred in

refusing his request for a self-defense instruction in the jury charge because the defensive theory of

self defense was raised by his testimony that McQuagge raised his fist six inches just before

Kipp hit him.

                Kipp claims that the State acknowledged during the charge conference that if Kipp’s

testimony is taken as true, then he acted in self defense. This claim represents a mischaracterization

of the record. Prior to his request for a self-defense instruction, Kipp also requested the submission

of the lesser-included offense of assault with bodily injury. In response to this request, the State

argued that even taking as true Kipp’s claim that he simply carried the pipe to protect himself but

did not use it, he still exhibited a deadly weapon during the offense and therefore committed

aggravated assault. See Tex. Penal Code Ann. § 22.02(a)(2) (person commits aggravated assault if

he “uses or exhibits a deadly weapon during the commission of the assault”) (emphasis added). In

the context of this discussion, the State observed, “If we assume his testimony is true, he used it for

self-defense purposes, if we assume that his testimony is true. If nothing else, he exhibited it.” This

statement, referencing the use-or-exhibition-of-a-deadly-weapon element of the offense of

aggravated assault, is not an acknowledgment by the State that if Kipp’s testimony is taken as true,

it properly raises the defensive theory of self defense in this case. As we will address more fully

below, Kipp’s testimony that he removed the pipe from his vehicle with the intent to protect himself,

even if true, does not necessarily entitle him to a self-defense instruction.

                In reviewing Kipp’s argument on appeal, we view the evidence in the light most

favorable to the defense. See Granger, 3 S.W.3d at 38. Therefore, we must assume that the jury

                                                  6
could have believed Kipp’s testimony that he did nothing but hit McQuagge with his fist after

McQuagge made a movement as if to swing at him. The court of criminal appeals has held that a

defendant who indisputably causes serious bodily injury to a victim has “by definition used deadly

force.” Ferrel v. State, 55 S.W.3d 586, 592 (Tex. Crim. App. 2001). Serious bodily injury is

defined in the penal code as “bodily injury that creates a substantial risk of death or that causes death,

serious permanent disfigurement, or protracted loss or impairment of the function of any bodily

member or organ.” Tex. Penal Code Ann. § 1.07(a)(46) (West Supp. 2008). The evidence presented

at trial established that McQuagge suffered serious bodily injury as a result of the assault, given

Dr. Read’s uncontroverted testimony that if he had not performed surgery on McQuagge’s facial

injuries, McQuagge would have suffered protracted loss or impairment of the function of his jaw.

See Brown v. State, 605 S.W.2d 572, 575 (Tex. Crim. App. 1980) (holding that for purposes of

establishing serious bodily injury, “[t]he relevant issue was the disfiguring and impairing quality of

the bodily injury as it was inflicted, not after the effects had been ameliorated or exacerbated by other

actions such as medical treatment”). On cross-examination, Kipp conceded that McQuagge suffered

“very serious injuries,” and when asked, “[I]f you had not hit Scott McQuagge, he would not have

suffered these injuries; is that true?” he responded affirmatively.

                On that basis, even viewing the evidence in the light most favorable to the defense,

we conclude that Kipp, regardless of whether he used the pipe or his fist to strike McQuagge,

employed deadly force “by definition” when he caused McQuagge serious bodily injury. Ferrel,

55 S.W.3d at 592; see also Landrian v. State, No. 01-05-00697-CR, 2009 Tex. App. LEXIS 3902,

at *47 (Tex. App.—Houston [1st Dist.] May 29, 2009, no pet.) (mem. op., not designated for

publication) (“[W]e must look at the end result of the act and, if the facts are such that the

                                                    7
complainant suffered serious bodily injury or death, then, by definition, the force used was deadly,

and an instruction under section 9.31 is not applicable to the case.”).4

                Where a defendant has used deadly force, the trial court does not err in refusing to

give a self-defense instruction unless the evidence raises the issue that deadly force was justified.

See Tex. Penal Code Ann. § 9.32(a)(2)(A) (West Supp. 2008) (actor is justified in using deadly force

“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”);

Werner v. State, 711 S.W.2d 639, 644 (Tex. Crim. App. 1986) (jury instruction under 9.32 is not

available in absence of evidence that deadly force was used or attempted by victim). Kipp presented

no evidence that McQuagge used or attempted to use unlawful deadly force against him, and in fact

testified that he did not believe his life was in danger at any time during the altercation, or else he

would have struck McQuagge with the pipe. By Kipp’s own admission, he did not reasonably

believe that he needed to protect himself from McQuagge’s use or attempted use of deadly force.

As a result, the evidence does not raise an issue that Kipp was justified in employing deadly force

against McQuagge. See Tex. Penal Code Ann. § 9.32(a)(2)(A).




        4
         An instruction under section 9.31 of the penal code covers the justifiable use of non-deadly
force, while section 9.32 covers the justifiable use of deadly force. See Tex. Penal Code Ann.
§§ 9.31-32 (West Supp. 2008). While only section 9.31 is titled, “Self-Defense,” instructions under
either code section can be referred to as self-defense instructions. See Carmen v. State, 276 S.W.3d
538, 542 (Tex. App.—Houston [1st. Dist.] 2008, no pet.) (“[T]he shorthand term ‘self-defense’ is
usually all that is needed to convey that the defendant is asserting the defense of one’s self, either
with deadly force when complainant died or suffered serious bodily injury, or without deadly force
when no death or serious bodily injury occurred.”).


                                                   8
               Viewing the evidence in the light most favorable to the defense, we conclude that the

issue of self defense is not raised by the evidence. As a result, we hold that Kipp was not entitled

to a self-defense instruction and the trial court did not err in refusing to provide one. We overrule

Kipp’s issue on appeal.


                                         CONCLUSION

               We affirm the judgment of conviction.



                                              ___________________________________________

                                              Diane M. Henson, Justice

Before Chief Justice Jones, Justices Waldrop and Henson

Affirmed

Filed: October 9, 2009

Do Not Publish




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