                                         NO. 07-10-0450-CR

                                  IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                            AT AMARILLO

                                               PANEL A

                                     NOVEMBER 3, 2011
                              ______________________________


                              RODERICK D. CASEL, APPELLANT

                                                    V.

                               THE STATE OF TEXAS, APPELLEE


                            _________________________________

               FROM THE 64TH DISTRICT COURT OF SWISHER COUNTY;

          NO. A-4330-10-05 ; HONORABLE ROBERT W. KINKAID, JR., JUDGE

                             _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                    MEMORANDUM OPINION


        Appellant, Roderick D. Casel, was convicted by a jury of assault of a family

member1 enhanced by two prior felony offenses2 and sentenced to confinement for life.


1
 See Tex. Penal Code Ann. § 22.01(a)(1), (b)(2) (West 2011). An offense under subsection (b)(2) is a
felony of the third degree.
2
 See Tex. Penal Code Ann. § 12.42(d) (West 2011). If it is shown on the trial of a third degree felony that
the defendant has previously been convicted of two felony offenses and the second previous felony
conviction is for an offense that occurred subsequent to the first previous felony offense having become
final, punishment shall be by imprisonment for life, or for any term of not more than 99 years or less than
25 years.
Appellant presents a single issue on appeal contending the trial court erred by denying

Appellant’s request for a jury instruction on self-defense. We affirm.


                                      Background


      On May 20, 2010, a Swisher County Grand Jury returned an indictment that was

later amended to allege that, on or about May 11, 2010, Appellant intentionally and

knowingly, or recklessly, caused bodily injury to Rachel Dean Boyd, a member of

defendant’s family or household, by striking Rachel Boyd and grabbing and twisting her

arms and hands. The indictment also alleged that, on May 28, 2002, Appellant was

convicted in the County Court At Law No. 2 of Potter County for assault against a family

member, thereby raising the offense to a third degree felony. See Tex. Penal Code

Ann. § 22.01(a)(1), (b)(2) (West 2011). On August 4, 2010, the District Attorney also

filed notice of his intent to introduce evidence of two prior convictions for purposes of

enhancement of punishment.


      During the trial held August 31 and September 1, 2010, Boyd testified that, on

May 10, 2010, she called the police at approximately 11:30 p.m. to report that Appellant

had assaulted her. Officer Jason Jack of the Tulia Police Department responded to the

call and went to Boyd’s residence. Appellant and Boyd were living at the residence and

both were present when he arrived.


      Boyd testified Appellant hit her, kicked her and twisted her arms and wrists for

several hours before she called the police. Her efforts to calm Appellant before calling

the police were to no avail. Officer Jack observed bruises consistent with an assault on



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Boyd’s biceps and wrists. Appellant smelled of alcoholic beverages on his person and

his breath. Officer Jack arrested Appellant for assault—family violence.


       After his arrest, Appellant and Boyd were recorded during a phone call to the jail.

During that call, Boyd admitted she struck Appellant in the mouth several days prior to

the incident on May 10th. She also stated that she and Appellant had been arguing

before Appellant grabbed her arms and she told him to stop because he was hurting

her.


       In his opening statement, Appellant’s counsel contended the evidence would

show that Boyd was not injured and there was no evidence of marks on her. During

Boyd’s examination, Appellant’s counsel attempted to establish that the marks on

Boyd’s arms and wrists were not bruises from an assault but skin pigmentation

anomalies created by a childhood illness. At the close of evidence, Appellant’s defense

counsel moved for an instruction on self-defense based upon evidence that Boyd had

struck Appellant in the mouth several days before the incident. The trial court denied

the request for lack of evidence and closing arguments were commenced.              During

closing, Appellant’s counsel asserted that the marks on Boyd’s arms were caused by

chicken pox when Boyd was a little girl, Boyd’s testimony at trial was inconsistent with

prior statements, Officer Jack did not notice any evidence of a struggle in the apartment

the day of the incident, and there was insufficient evidence for the jury to find Appellant

guilty of assault—family violence.




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       At the trial’s end, the jury found Appellant guilty of assault--family violence and

they also found both enhancement allegations to be “true.” Appellant was sentenced to

confinement for life. This appeal followed.


                                           Discussion


       Appellant asserts the trial court erred by denying his request for a jury instruction

on self-defense because there was some evidence in support of the instruction. In

support, Appellant relies, in part, on the recorded jail house telephone conversation

between Appellant and Boyd wherein Boyd indicates she struck Appellant in the mouth

several days before the incident and Appellant states he was not trying to hurt Boyd at

the time of the incident but was only holding her hands during the argument,

presumably to avoid another assault. Appellant also asserts that, in that call, Boyd

“appears to agree” that he was holding her arms and wrists in an attempt to keep her

from using her hands to attack him.             Further, Appellant relies on Officer Jack’s

acknowledgement that, in a self-defense situation, holding a potential assailant’s arms

would be one way to defend oneself.3


       Considering the record in a light most favorable to Appellant, we disagree

because there is no evidence Appellant reasonably believed his conduct was necessary

to protect himself against the use or attempted use of unlawful force by Boyd. Neither

was there any evidence that Appellant admitted committing the offense of assault—

family violence and was offering self-defense as justification for his conduct.

3
 Officer Jack agreed with Appellant’s counsel on cross-examination that one way to overpower someone
that you didn’t want hitting you would be to grab their arms.



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       Standard of Review


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

we conduct a harm analysis. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005).

The degree of harm required for reversal depends on whether an appellant preserved

error by objection. Id. If an appellant failed to object at trial and offered no objections to

the jury charge, charge error does not require reversal unless “egregious harm” is

shown. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh’g),

reaffirmed Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App. 2003). However, if,

as here, the objection was properly preserved, jury-charge error requires reversal if the

appellant suffers “some harm” to his rights. Ngo, 175 S.W.3d at 743; Almanza, 686

S.W.2d at 171.


       Self-Defense Instruction


       A defendant is entitled to a self-defense instruction if the issue is raised by the

evidence, regardless of whether that evidence is weak or strong, unimpeached or

contradicted, and regardless of what the trial court may think about the credibility of the

witnesses or the viability of the defense.        Allen v. State, 253 S.W.3d 260, 267

(Tex.Crim.App. 2008); Ferrel v. State, 55 S.W.3d 586, 591 (Tex.Crim.App. 2001).

However, if the evidence, viewed in a light most favorable to the defendant, does not

raise the issue of self-defense, the defendant is not entitled to an instruction. Id.


       Under section 9.31 of the Texas Penal Code, a person is justified in using force

against another when, and to the degree, he or she reasonably believes the force is

immediately necessary to protect himself or herself against the other’s use or attempted

                                              5
use of unlawful force. Tex. Penal Code Ann. § 9.31(a) (West 2011). Because the

statute provides that the force used must be reasonable as contemplated from the

defendant’s point of view, there must be some evidence of the defendant’s state of mind

or observable manifestations of the defendant’s state of mind sufficient to raise the

issue of self-defense. See Reed v. State, 703 S.W.2d 380, 385 (Tex.App.—Dallas

1986, pet. ref’d). In other words, there must be some evidence in the record to show

that the defendant was in some immediate apprehension or fear of being the recipient of

the unlawful use of force from the complainant. Smith v. State, 676 S.W.2d 584, 585

(Tex.Crim.App. 1984).


      Further, because self-defense is justification for one’s actions, the assertion of

the defense necessarily requires an admission that the conduct occurred. Anderson v.

State, 11 S.W.3d 369, 372 (Tex.App.—Houston [1st Dist.] 2000, pet. ref’d). See Shaw v.

State, 243 S.W.3d 647, 659 (Tex.Crim.App. 2007), cert. denied, 553 U.S. 1059, 128

S.Ct. 2486, 171 L.Ed.2d 777 (2008) (holding defensive instruction only appropriate

when defendant “essentially admits” to every element of offense including culpable

mental state, but interposes justification to excuse otherwise criminal conduct). Thus,

“[a] defendant is entitled to an instruction on the law of self-defense if there is some

evidence that he intended to use force against another and he did use force, but he did

so only because he reasonably believed it was necessary to prevent the other’s use of

unlawful force.” Ex parte Nailor, 149 S.W.3d 125, 132 (Tex.Crim.App. 2004) (citing Tex.

Penal Code Ann. § 9.31(a)). Assertion of the defense is inconsistent with a denial of the

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


                                           6
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.) (citing Ex parte Nailor, 149 S.W.3d at 134)).4


        Although a defendant is not required to testify to raise the issue of self-defense,

Boget v. State, 40 S.W.3d 624, 626 (Tex.App.—San Antonio 2001), aff’d, 74 S.W.3d 23,

31 (Tex.Crim.App. 2002), there is a paucity of cases wherein the issue of self-defense

has been raised without the testimony of the defendant.5 See Lavern v. State, 48

S.W.3d 356, 360 (Tex.App.—Houston [14th Dist.] 2001, pet. ref’d) (holding that if there is

no evidence suggesting the accused responded to, or believed he was responding to

the use of unlawful force, he is not entitled to an instruction on self-defense.) For

example, in Dominguez v. State, 506 S.W.2d 880 (Tex.Crim.App. 1974), the Court

found that because the defendant did not testify, there was no evidence that he believed

himself to be in danger or feared that the deceased was about to kill or seriously injure

him. Id. at 882. The Dominguez Court further found that there was no evidence of an

attack or apparent attack by the complainant, and no evidence of a reasonable

expectation or fear on the part of the defendant. Id. Finding that the evidence did not

raise the issue of self-defense, the Dominguez Court held that the trial court properly

refused defendant’s requested instruction on self-defense. Id.




4
 See also Maxwell v. State, No. 03-06-00473-CR, 2007 Tex. App. LEXIS 6356 at *4-5 (Tex.App.—Austin
August 6, 2007, pet. rev. dism’d) (mem. op., not designated for publication) (collected cases cited
therein).
5
Appellant did not testify at trial.

                                                7
       Here, also, there was no evidence of an attack by Boyd at the time of the

incident. Nor was there any evidence of an act or demonstration or words coupled with

acts or demonstrations by Boyd toward Appellant upon which Appellant could base any

reasonable expectation or fear that he was in some apprehension or fear of being the

recipient of the unlawful use of force by Boyd. See Dominguez, 506 S.W.2d at 882.

Because there was neither direct evidence of Appellant’s state of mind or evidence of

an observable manifestation of his state of mind at the time he attacked Boyd, the

evidence does not raise the issue of self-defense. Thus, the trial court properly denied

Appellant’s requested instruction. Id. See Reed, 703 S.W.2d at 385. Accordingly,

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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