i          i         i                                                                      i      i       i




                                    MEMORANDUM OPINION

                                            No. 04-08-00106-CV

                                      IN THE MATTER OF C.E.B.,

                      From the 386th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2007-JUV-03030
                               Honorable Laura Parker, Judge Presiding

Opinion by:        Sandee Bryan Marion, Justice

Sitting:           Sandee Bryan Marion, Justice
                   Steve C. Hilbig, Justice
                   Marialyn Barnard, Justice

Delivered and Filed: March 11, 2009

AFFIRMED

           This is an appeal from a juvenile adjudication and order of disposition. A jury found C.E.B.,

a juvenile, engaged in delinquent conduct by committing the offense of misdemeanor assault. The

trial court assessed punishment at six months’ probation. We affirm.

                                        FACTUAL SUFFICIENCY

           In his first issue, C.E.B. asserts the evidence is factually insufficient to support his conviction

for misdemeanor assault. We review the sufficiency of the evidence under the appropriate standards

of review. See Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006) (factual
                                                                                      04-08-00106-CV

sufficiency); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (same). The standard

of review is the same in both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d

180, 184 (Tex. Crim. App. 1999).

       The assault evolved from a conflict between C.E.B., his younger brother, the complainant,

and the complainant’s friend, who were all playing two-man touch football in their neighborhood

cul-de-sac. At the end of the game, the complainant and his friend refused to give C.E.B. and his

brother their football and an argument arose over the ownership of the football. There is no dispute

C.E.B. struck the complainant, but on appeal, C.E.B. argues the evidence was insufficient to prove

the complainant suffered any bodily injury as a result.

       A person commits misdemeanor assault if the person: intentionally, knowingly, or recklessly

causes bodily injury to another. TEX . PENAL CODE ANN . § 22.01(a)(1) (Vernon 2003). On appeal,

C.E.B. argues the evidence presented at trial was factually insufficient to show he caused bodily

injury to the complainant. “Bodily injury” is defined as “physical pain, illness, or any impairment

of physical condition.” Id. § 1.07(a)(7). “This definition appears to be purposefully broad and seems

to encompass even relatively minor physical contacts so long as they constitute more than mere

offensive touching.” Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989). At trial, the

complainant and the complainant’s friend testified C.E.B. used his hand and his foot to strike the

complainant in the stomach. The complainant testified that, after C.E.B. struck him, his stomach

hurt and he felt “numbing-like and painful.” The complainant, his mother, and the investigating

officer all testified the complainant had red marks on his stomach, neck, and back.             The




                                                 -2-
                                                                                       04-08-00106-CV

complainant’s mother testified she took the complainant to the doctor the next day and the doctor

identified bruising on the complainant’s stomach.

       We conclude the evidence is sufficient to establish C.E.B. caused bodily injury to the

complainant when he struck him in the stomach. The complainant testified he suffered physical pain

when he was struck by C.E.B. and the testimony regarding the red marks and bruising on the

complainant’s stomach corroborates this evidence. Accordingly, C.E.B.’s first issue is overruled.

                           INSTRUCTION ON DEFENSIVE ISSUES

       In his second issue, C.E.B. argues the trial court erred by failing to instruct the jury on the

defensive issues of defense of property and defense of a third party. “It is well settled that an

accused has the right to an instruction on any defensive issue raised by the evidence, whether that

evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may

or may not think about the credibility of the evidence.” Granger v. State, 3 S.W.3d 36, 38 (Tex.

Crim. App. 1999). However, if the evidence viewed in the light most favorable to the defendant,

does not establish the defense, the defendant is not entitled to an instruction on the issue. Ferrel v.

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

       It is a defense to prosecution if the actor’s conduct is justified. TEX . PENAL CODE ANN .

§ 9.02 (Vernon 2003). A person is justified in using force to recover their property when they

reasonably believe the force is immediately necessary to recover the property. Id. § 9.41. The actor

must use the force immediately or in the fresh pursuit of the dispossessed property. Id. On appeal,

C.E.B claims he was justified in using force against the complainant because the complainant stole

his football. However, there is no evidence C.E.B. reasonably believed the force he used against the


                                                  -3-
                                                                                         04-08-00106-CV

complainant was immediately necessary, or that it was used immediately. The testimony at trial was

that C.E.B. went into his house after the initial confrontation about the ownership of the ball, and

when he returned he never asked for the ball back before striking the complainant. Additionally, it

was the complainant’s friend, not the complainant, who was in possession of the football during the

entire incident. We conclude that, based on this record, defense of property was not raised by the

evidence. Therefore, the trial court did not err by failing to instruct the jury on this defensive issue.

        C.E.B. also argues he was justified in using force against the complainant because he was

protecting his younger brother. A person is justified in using force against another to protect a third

person if the actor reasonably believes he would be justified in using such force to protect himself

against unlawful force and he believes his intervention is immediately necessary to protect the third

party. TEX . PENAL CODE ANN . § 9.33 (Vernon 2003). A person is not justified in using force against

another in response to verbal provocation alone. Id. § 9.31(b)(1). A review of the record reveals

there was verbal provocation by the complainant; however, there is no evidence the complainant or

the complainant’s friend used or threatened to use unlawful force against C.E.B.’s younger brother.

Because it appears from the record that C.E.B. was responding to the complainant’s verbal

provocation alone, defense of a third person was not raised by the evidence. Therefore, the trial

court did not err by failing to instruct the jury on this defensive issue.

                         INEFFECTIVE ASSISTANCE OF COUNSEL

        In his final issue on appeal, C.E.B. claims he received ineffective assistance of counsel

because his attorney failed to request jury charges on the defensive issues discussed above.

However, because we do not believe the evidence raised these defensive issues, trial counsel’s failure


                                                   -4-
                                                                                      04-08-00106-CV

to request a jury charge on these issues does not constitute deficient representation. See Strickland

v. Washington, 466 U.S. 668, 687 (1984) (setting the standard for establishing ineffective assistance

of counsel).

                                         CONCLUSION

       We overrule C.E.B.’s issues on appeal and affirm the trial court’s judgment.



                                                       Sandee Bryan Marion, Justice




                                                 -5-
