                              NUMBER 13-07-00680-CR

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


VALDE GARCIA,                                                                     Appellant,

                                               v.

THE STATE OF TEXAS,                                                               Appellee.


                     On appeal from the 319th District Court
                           of Nueces County, Texas.


                           MEMORANDUM OPINION

                  Before Justices Rodriguez, Garza, and Vela
                   Memorandum Opinion by Justice Garza

       A jury found appellant, Valde Garcia, guilty of aggravated robbery, a first-degree

felony, and assessed punishment at ten years’ imprisonment in the Texas Department of

Criminal Justice-Institutional Division with no fine. See TEX . PENAL CODE ANN . § 29.03(a),

(b) (Vernon 2003). By four issues, Garcia contends that: (1) the evidence supporting his

conviction is legally and factually insufficient; (2) the trial court erred in refusing to charge
the jury on the lesser-included offenses of robbery, aggravated assault, and theft; (3) the

trial court erred in failing to include an instruction on self-defense or defense of property

in the jury charge; and (4) the State’s use of Garcia’s military service record to impeach his

testimony at trial created unfair prejudice. We affirm.

                                      I. BACKGROUND

       On July 12, 2007, Garcia was charged by indictment with the first-degree offense

of aggravated robbery. See TEX . PENAL CODE ANN . § 29.03(a), (b). Specifically, the

indictment provided the following:

       Valde Garcia, defendant, on or about June 20, 2007, in Nueces County,
       Texas, did then and there, while in the course of committing theft of property
       and with intent to obtain or maintain control of said property, intentionally or
       knowingly threaten or place JOSEPH VELA, in fear of imminent bodily injury
       or death, and the defendant did then and there use or exhibit a deadly
       weapon, to wit: a knife . . . .

       On October 22, 2007, Garcia’s jury trial commenced. The State called four

witnesses in its case-in-chief—Joseph Vela, the victim, Deputies David Lindner and

Rolando Padilla, and Andrew Rich. Garcia and his mother, Martha Barrientes, testified on

behalf of the defense.

A. Joseph Vela’s Testimony

       Vela testified that on June 20, 2007, he and his friend, Rich, both sixteen years old,

were driving home together in Rich’s vehicle. Both Vela and Rich worked together on a

farm. Vela and Rich passed by Garcia’s residence near Bishop, Texas, as they were

driving home, and Garcia gestured for them to stop. Vela and Rich had met Garcia

through their friendship with Garcia’s brother, Manny. Vela had also lent Garcia money on

a previous occasion. Vela believed that the reason for the stop was that Garcia wished to

pay him back. Rich turned the vehicle around and parked in front of Garcia’s house. Vela

                                              2
noted that Garcia was accompanied by a friend named Mario.

        Garcia subsequently asked Vela to come over to where he was standing. Vela

testified that Garcia then became aggressive towards him and accused him of “messing

around” with Manny’s girlfriend. As Garcia was interrogating him, Vela noticed that Garcia

had begun to get “teary-eyed,” his arm muscles tensed up, and he took off his jewelry.

Garcia then pushed Vela onto the hood of a car that was parked nearby. After pushing

Vela onto the hood of the car, Garcia instructed Vela to wait there while Garcia entered his

house. Once Garcia entered the house, Mario told Vela to run; however, Vela chose not

to do so because he did not believe that Rich could get his car started in time to flee from

Garcia.

        After spending a couple of seconds inside his house, Garcia returned. Garcia

informed Vela and Rich that if they chose to run, he would catch them and kill them. He

also instructed Vela to come inside the house. Vela testified that he went inside Garcia’s

house because he was forced to do so and that he “felt that he [Garcia] had power over

me.”1 Once inside, Garcia locked the dead bolt and the bottom lock of the door and

ordered Vela to go the another room, sit on the bed, and not make a sound. After leaving

the room for a brief period, Garcia returned with a “knife out on his right side.” Vela noted

that the knife had a black handle and a silver blade.

        Vela testified that Garcia forced him out of the bedroom and into the living room and

pushed him onto another bed. At this time, Garcia allegedly put the knife to Vela’s neck

and asked Vela what he would do if Garcia slit his throat. Vela did not respond because

he was in fear for his life. Garcia asked Vela if he had any money on his person to which


        1
         In corroborating Vela’s testim ony, Rich noted that: “He [Garcia] was forcing [Vela], and he was
behind him . He, [Vela], had nowhere to go, except for in the house.”
                                                   3
Vela stated he did not. However, Vela informed Garcia that he had $100 at his house and

that he could go get it for Garcia. Garcia then let Vela get up, unlocked the door, and told

Vela to go outside. Garcia followed Vela outside with the knife still in hand. They both

proceeded to Rich’s vehicle. Garcia asked Vela “if they have anything of value.” Vela told

Garcia that all they had in the vehicle was corn from the farm they had worked on earlier

in the day. Garcia was displeased with Vela’s answer and asked again. Garcia then

forcefully searched the front pockets of Vela’s pants and found about $5. Garcia put the

$5 in his pocket and searched Vela’s back pockets, where he found Vela’s wallet and

bandana. As Garcia removed the bandana from Vela’s back pocket, $7 or $8 fell to the

ground. When Vela reached to pick up the money off of the ground, Garcia instructed Vela

to give him the money. Garcia put the money in his pocket and began inspecting Vela’s

wallet. Subsequently, Garcia put Vela’s wallet in his pocket and ordered Vela and Rich to

return within five or ten minutes with the $100 that Vela had previously referenced. Garcia

then pushed Vela into Rich’s vehicle and walked around to the driver’s side of the vehicle

where Rich was seated. Garcia proceeded to ask Rich if he had anything of value to which

Rich replied that he only had corn. Now enraged, Garcia threatened to hunt down and kill

them and Vela’s grandparents if they did not return with the $100.2 With Vela crying and

Rich fearing for his life, they left for Vela’s grandparents’ house.

       Upon arriving at his grandparents’ house, Vela told his grandfather what had

happened. Shortly thereafter, the police were called. Deputies Lindner and Padilla arrived

at Vela’s grandparents’ house to inquire about the incident.




       2
           Vela testified that he lived with his grandparents at their house.
                                                        4
B. Deputy David Lindner’s Testimony

        Lindner testified that he is a Deputy Constable for Nueces County, Precinct 5, but

that at the time the incident transpired, he was working for the City of Bishop Police

Department. Lindner first became aware of the incident when his partner, Padilla, received

a call on his radio from Phillip Rich, a Nueces County Sheriff’s Deputy.3 Lindner and

Padilla proceeded to Vela’s grandparents’ house. Upon arriving, Lindner and Padilla

interviewed Vela about the incident. Lindner noted that Vela was under a lot of stress and

that his eyes were very red and watery. Vela then told Lindner and Padilla about the

incident. Vela was very descriptive about the items taken and the items located in Garcia’s

residence. Vela also noted that Garcia did not act like he was joking when he was

demanding the money. After interviewing Vela, Lindner and Padilla went over to Garcia’s

residence. Garcia was not there, so the deputies left a message with Barrientes, who was

apparently living with Garcia at the house. About five minutes later, Lindner received a call

from Barrientes notifying him that Garcia had returned; therefore, Lindner went back to

Garcia’s house. Lindner noticed that Garcia was dressed exactly as Vela had described.

Later, Lindner read Garcia his Miranda rights and began to describe the incident as Vela

had previously told him. See generally Miranda v. Arizona, 384 U.S. 436 (1966). Lindner

testified that at no point did Garcia deny that the incident took place.4 Garcia merely stated

that the whole incident was a misunderstanding and that he and Vela were “just playing

around.” After Lindner asked about Vela’s wallet, Garcia stated that Vela had left the

wallet inside the house on top of a bed. Lindner then asked about the money that Vela

        3
          Nueces County Deputy Phillip Rich is Andrew Rich’s uncle. Andrew noted that he had called Phillip
on his cell phone to tell him about the incident.

        4
         Mario was also present during Lindner’s questioning of Garcia, and at no point did Mario deny that
the events in question had transpired.
                                                    5
alleged Garcia had stolen and about the knife; Garcia denied any knowledge of the money

and denied owning a knife. After placing Garcia under arrest, Lindner conducted a search

of the residence. Lindner found Vela’s wallet on top of a bed but did not find a knife in

either the living room or the kitchen of Garcia’s house.

        The next day, Vela produced a written statement describing the incident. Lindner

witnessed the statement. Rich produced a written statement a few days later which

Lindner also witnessed.         In compiling his police report, Lindner read both written

statements provided by Vela and Rich and determined that the statements were

consistent.5 Lindner also testified that based on his training and experience, a knife is a

weapon that could cause death or serious bodily injury.

C. Deputy Rolando Padilla’s Testimony

        Padilla testified that when he first responded to the disturbance call, he noticed that

Lindner had already arrived on the scene and was taking Vela’s statement. Padilla noticed

that Vela was visibly upset and shaking. Padilla noted that he assisted Lindner in

searching Garcia’s house, but neither law enforcement officer found a knife. However,

Lindner and Padilla did find Vela’s wallet lying on a bed in Garcia’s house.

D. Andrew Rich’s Testimony

        Rich corroborated Vela’s testimony regarding the encounter with Garcia.

Specifically, Rich noted that Vela began to cry out of fear when Garcia instructed Vela to

come inside the house and told him not to run away. Rich testified that Garcia ordered him

to stay where he was and to turn the car off prior to entering the house with Vela. Garcia

threatened Rich that if he failed to comply, he would kill him. Rich testified that as a result


        5
         At trial, Garcia argued that the statem ents produced by Vela and Rich were inconsistent because
Rich had failed to m ention som e details of the incident.
                                                   6
of Garcia’s threats, he was fearful for his life. Rich stated that at no point in time was

Garcia acting in a joking manner; instead, Garcia was angry and serious. Once Vela

returned from Garcia’s house, Rich noticed that Vela was “crying and really scared.” As

Garcia accompanied Vela to Rich’s car, Rich saw that Garcia was holding a knife with a

black handle and silver blade. Rich believed that the knife was capable of hurting him or

even killing him. Later, at the urging of Lindner, Rich produced a written statement about

the incident. Rich admitted that he did not include every detail in the written statement

because Lindner had only told him to write a “summary.”

E. Garcia’s Testimony

       Garcia testified that at the time of trial, he was twenty-two years old and that he was

employed doing yard work and working “at the grains” in Bishop. Garcia noted that he did

not wave over Vela and Rich but that Vela and Rich stopped by on their own accord to ask

where Mario was. According to Garcia, both Vela and Rich exited Rich’s vehicle and the

three began talking. As they were talking, Garcia and Vela began “horseplaying.” Garcia

testified that Vela pushed him and that he pushed Vela back, but that “it wasn’t nothing

really serious.” However, Garcia noted that the pushing eventually became serious.

Garcia alleged that Vela continually provoked him and that he took off his jewelry because

the two were “horseplaying.” Garcia admitted that he did push Vela and that Vela landed

on top of the nearby car. Garcia denied: (1) asking Vela for money; (2) threatening the

lives of Vela or Rich; (3) forcing Vela inside his house; (4) threatening to slit Vela’s throat;

or (5) owning a knife. Essentially, Garcia denied committing any offense. Garcia claimed

that Vela’s story was a fabrication to frame him for this offense. Garcia testified that Vela

left his wallet at his place and that it was not his intent to steal Vela’s wallet. Because he

was employed at the time, Garcia theorized that he had no need for Vela’s money. Garcia
                                           7
noted that when the police arrived, he “was down the street.”6 When the police returned

to his house a second time, Garcia was waiting for them. Upon questioning, Garcia

informed Lindner and Padilla about Vela’s wallet and consented to a search of his house

for the knife.

        On cross-examination, the State asked Garcia if he had been previously convicted

of a crime of moral turpitude. In response to this question, Garcia stated that he had “been

convicted of unauthorized absence from the Service.” The State then questioned Garcia

about his service in the Marines. Garcia admitted that he had been discharged from the

Marines for bad conduct because he was absent without leave (“AWOL”). With respect

to Garcia’s discharge, the following exchange occurred:

        Q [The State].           Okay. You just told the ladies and gentlemen of the jury
                                 the reason that you didn’t tell the deputy, or—I’m
                                 sorry—he was an officer at the time—Officer Lindner
                                 about the wallet, about the bracelet, about everybody
                                 taking off their jewelry and horseplaying, blah, blah,
                                 blah, blah, blah, that you didn’t tell him about that was
                                 because you knew you were going to catch a case for
                                 agg[ravated] robbery?

        A [Garcia].              No, I had no idea. I had never been—that’s the
                                 only—the only time I’ve been in trouble is with the
                                 military. That was it. I didn’t know I was going to be in
                                 trouble for no aggravated robbery.

        Q.                       But there have been several times with the military,
                                 haven’t there; it wasn’t just the AWOL, was it?

        A.                       It was AWOL and the use of cocaine, and that was it.

        Q.                       Isn’t there one other one?

        A.                       No, ma’am. That’s all there is. That’s the only charge
                                 I ever got.

        6
         On cross-exam ination, the State questioned Garcia about whether he had disposed of the knife
when he “was down the street.” However, Garcia insisted that there was no knife. Garcia did not specifically
address what he was doing “down the street.”
                                                     8
The State then introduced a copy of Garcia’s military record over objections made by

Garcia that the records were not made available in discovery and were irrelevant and more

prejudicial than probative.7 See TEX . R. EVID . 403. The trial court admitted Garcia’s military

records under the premise that Garcia had “opened the door” and that the documents had

been authenticated. Garcia’s military record included a report with the following notation

referencing a December 10, 2004 offense: “Counsel this date concerning my illegal drug

involvement, specifically indicating trafficking, possession, usage and positive urinalysis

for cocaine.” Garcia admitted that he used cocaine and that he had signed the report, but

that the military had doctored the document to include the trafficking allegation. Garcia

also testified that (1) Mario was present during the alleged altercation and during Lindner’s

questioning, and (2) Mario did not ever state that Vela and Garcia were just “horseplaying”

or that this was just a “misunderstanding.”

F. Martha Barrientes’s Testimony

        Barrientes testified that at the time of the incident, Garcia was employed and did not

need any money. Barrientes also recognized Vela and Rich as Manny’s friends and that

Vela and Rich had visited Garcia’s house on other occasions. Barrientes denied ever

seeing Garcia with a knife; however, Barrientes admitted that she does not keep a close

eye on what Garcia does on a daily basis.

                                 II. LEGAL AND FACTUAL SUFFICIENCY

        In his first issue, Garcia contends that the evidence supporting his conviction is

legally and factually insufficient. The State asserts that the evidence supporting Garcia’s

        7
           In response to Garcia’s objection that his m ilitary records were not provided during discovery, the
State argued that it has an open door policy and that Garcia had am ple opportunity to access these records.
The State also asserted that counsel for Garcia had looked through all of the State’s docum ents on the day
before trial. Garcia did not re-assert this objection on appeal.
                                                      9
conviction was legally sufficient because, based on the testimony provided by Vela and

Rich, a rational trier of fact could have found the elements of aggravated robbery beyond

a reasonable doubt. The State also argues that the jury’s verdict is not clearly wrong or

manifestly unjust.

A. Standard of Review

       In a legal sufficiency review, we view the evidence in the light most favorable to the

prosecution to determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,

318-19 (1979); Watson v. State, 204 S.W.3d 404, 414-17 (Tex. Crim. App. 2006). The trier

of fact is the sole judge of the facts, the credibility of the witnesses, and the weight given

to testimony. See TEX . CODE CRIM . PROC . ANN . art. 38.04 (Vernon 1979); Jackson, 443

U.S. at 318-19; Beckham v. State, 29 S.W.3d 148, 151 (Tex. App.–Houston [14th Dist.]

2000, pet. ref'd). We do not reevaluate the weight and credibility of the evidence, whether

circumstantial or direct, nor do we substitute our own judgment for that of the trier of fact.

Mosley v. State, 141 S.W.3d 816, 821 (Tex. App.–Texarkana 2004, pet. ref'd); Beckham,

29 S.W.3d at 151. Instead, we consider whether the jury reached a rational decision.

Beckham, 29 S.W.3d at 151.

       Each fact need not point directly and independently to the guilt of the appellant, as

long as the cumulative force of all the incriminating circumstances is sufficient to support

the conviction. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Barnes

v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994); Johnson v. State, 871 S.W.2d 183,

186 (Tex. Crim. App. 1993); Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App.

1987)). Circumstantial evidence is as probative as direct evidence in establishing the guilt

of an actor and alone can be sufficient to establish guilt. Guevara v. State, 152 S.W.3d
                                            10
45, 49 (Tex. Crim. App. 2004). On appeal, both circumstantial and direct evidence cases

are examined using the same standard of review. Id.

        In a factual sufficiency review, we review the evidence in a neutral light to determine

whether the evidence is so weak that the jury's verdict seems clearly wrong and manifestly

unjust. Watson, 204 S.W.3d at 414-15. After considering all of the evidence in the record

related to appellant's sufficiency challenge, we compare the evidence weighed by the jury

that tends to prove the elemental fact in dispute with the evidence that tends to disprove

it. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997) (en banc). This Court

will not reverse the jury's verdict unless we can say with some objective basis in the record

that the great weight and preponderance of the evidence contradicts the verdict. Watson,

204 S.W.3d at 415.

        We measure the sufficiency of the evidence by the elements of the offense as

defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi 2002,

pet. ref'd). "Such a charge would accurately set out the law, would be authorized by the

indictment, and would not unnecessarily increase the State's burden of proof.” Malik, 953

S.W.2d at 240. A person commits the offense of aggravated robbery “if he commits

robbery as defined in Section 29.02, and he . . . uses or exhibits a deadly weapon . . . .”8

TEX . PENAL CODE ANN . § 29.03(a)(2).




        8
          As defined in section 29.02 of the penal code, a person com m its the offense of robbery “if, in the
course of com m itting theft as defined in Chapter 31 and with intent to obtain or m aintain control of the
property, he . . . intentionally or knowingly threatens or places another in fear of im m inent bodily injury or
death.” T EX . P EN AL C OD E A N N . § 29.02(a)(2) (Vernon 2003). Chapter 31 of the penal code provides that a
person com m its theft “if he unlawfully appropriates property with intent to deprive the owner of the property.”
Id. § 31.03(a) (Vernon Supp. 2008).
                                                      11
B. Discussion

       In arguing that the evidence supporting his conviction is legally and factually

insufficient, Garcia states that “the evidence did not show a conscious objective or desire

by Garcia to harm Vela but an objective by Garcia to defend himself against Vela’s

advances.” Garcia further states that the State failed to prove beyond a reasonable doubt

that he committed an aggravated robbery because there was inconsistent testimony

whether a knife existed at all and because Vela and Garcia were merely “horseplaying.”

       We construe Garcia’s first argument as an attack on the intent element of the

offense. Intent is a question of fact that is within the sole purview of the jury; the jury may

rely on its collective common sense and apply common knowledge and experience. Brown

v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003). Intent may be inferred from the

circumstantial evidence surrounding the incident including the acts, words, and conduct of

the accused. Guevara, 152 S.W.3d at 50. Due deference must be accorded to the jury

regarding the weight and credibiltiy of the evidence. See Jones v. State, 944 S.W.2d 642,

649 (Tex. Crim. App. 1996).

       Vela testified that Garcia (1) repeatedly threatened Rich and him, (2) displayed a

knife, and (3) stole his money and his wallet, thereby addressing each of the essential

elements for the offense of aggravated robbery. See TEX . PENAL CODE ANN . § 29.03(a).

Rich corroborated Vela’s testimony with respect to Garcia’s threats, his angry demeanor,

and the existence of the knife. Rich also noted that he observed Vela crying prior to

entering and after exiting Garcia’s house, indicating that Vela was fearful of Garcia. Both

Vela and Rich testified that Garcia’s actions made them fearful of their lives and safety.

On the other hand, Garcia denied all of the allegations made by Vela and Rich in their

testimony and painted himself as the victim of Vela’s aggressive advances. However,
                                          12
“[w]hen the record supports conflicting inferences, we presume that the factfinder resolved

the conflicts in favor of the prosecution and therefore defer to that determination.” Clayton

v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 326).

Based on the testimony, the jury was justified in inferring that Garcia intended to commit

the offense of aggravated robbery. See TEX . PENAL CODE ANN . § 29.03(a)(2).

       Garcia’s second argument, that he and Vela were merely “horseplaying,” is not

supported by the record. “Appellate courts should afford almost complete deference to a

jury’s decision when that decision is based upon an evaluation of credibility.” Lancon v.

State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). “The jury is in the best position to

judge the credibility of a witness because it is present to hear the testimony, as opposed

to an appellate court who relies on the cold record.” Id. The jury may choose to believe

some testimony and disbelieve other testimony. Id. at 707.

       Both Vela and Rich testified that Garcia threatened them and that Garcia stole

money from Vela using a knife. Furthermore, both Vela and Rich testified that they feared

for their lives, and neither believed that Garcia was merely engaging in “horseplay.” In

arriving at its verdict, the jury clearly believed Vela’s testimony to be credible while

concluding that Garcia’s testimony was not. We must defer to the jury’s determination.

See Clayton, 235 S.W.3d at 778.

       We disagree with Garcia’s third argument that the existence of inconsistent

testimony regarding the existence of the knife rendered the evidence supporting his

conviction legally insufficient.   Once again, both Vela and Rich noted that Garcia

brandished a knife in committing the robbery; they both identified the knife as having a

black handle and a silver blade. Conversely, both Garcia and Barrientes denied that

Garcia ever possessed a knife.
                                             13
        However, this Court has held that contradictory testimony from witnesses does not

render the evidence insufficient.             See Davila v. State, 147 S.W.3d 572, 575 (Tex.

App.–Corpus Christi 2004, pet. ref’d) (citing Mercado v. State, 695 S.W.2d 25, 29 (Tex.

App.–Corpus Christi 1985), aff’d, 718 S.W.2d 291 (Tex. Crim. App. 1986)). The jury was

justified in believing the testimony of Vela and Rich over that of Garcia with respect to the

existence of the knife.9 See Clayton, 235 S.W.3d at 778; see also Hunter v. State, Nos.

01-00-00722-CR & 01-00-00726-CR, 2001 Tex. App. LEXIS 4532, at **4-6 (Tex.

App.–Houston [1st Dist.] July 5, 2001, no pet.) (mem. op., not designated for publication)

(affirming a conviction for aggravated robbery even though the firearm used in the

commission of the offense was never found); Jeffery v. State, No. C14-84-329-CR, 1985

Tex. App. LEXIS 6581, at *3 (Tex. App.–Houston [14th Dist.] Apr. 25, 1985, no pet.) (mem.

op., not designated for publication) (upholding a conviction for aggravated robbery even

though the deadly weapon was not found). In addition, Lindner testified that the knife that

Vela and Rich identified was capable of causing death or serious injury. See Davidson v.

State, 602 S.W.2d 272, 274 (Tex. Crim. App. 1980) (holding that simply a description of

a knife by size and shape is not enough evidence to support a determination that the knife

was a deadly weapon without evidence of the manner of its use and capacity to produce

death or serious bodily injury).10 Based on the foregoing, we conclude that the cumulative


        9
           Texas courts have held that in determ ining whether a knife was used as a deadly weapon within the
context of an aggravated robbery, we m ust consider “the m anner of the knife’s use or intended use, its size
and shape, and its capacity to produce serious bodily injury” and that “[t]estim ony pertaining to the size of the
blade, the blade’s appearance of sharpness, the use of any brandishing m otions, or the victim ’s fear of serious
bodily injury or death, can all be offered to establish that a knife is a deadly weapon.” See Davidson v. State,
602 S.W .2d 272, 273 (Tex. Crim . App. 1980); Hicks v. State, 837 S.W .2d 686, 690 (Tex. App.–Houston [1st
Dist.] 1992, no pet.).

        10
           In Davidson, appellant was convicted of aggravated robbery for stealing film from a store and
threatening em ployees with a knife. 602 S.W .2d at 273. The knife was never found. Id. The court of crim inal
appeals reversed appellant’s conviction for aggravated robbery because the State failed to proffer evidence
as to the knife’s m anner of use and capacity to produce death or serious bodily injury. Id. at 274. However,
                                                       14
force of all the incriminating circumstances is sufficient to support Garcia’s conviction for

aggravated robbery. See Hooper, 214 S.W.3d at 13; see also Guevara, 152 S.W.3d at 49.

         In his appellate brief, Garcia does not demonstrate how the evidence supporting his

conviction was factually insufficient. See TEX . R. APP. P. 38.1. In any event, we cannot

say, based on our review of the record, that the evidence supporting Garcia’s conviction

is so weak that the verdict was clearly wrong or manifestly unjust. See Watson, 204

S.W.3d at 414-15. Accordingly, we overrule Garcia’s first issue on appeal.

                                         III. LESSER -INCLUDED OFFENSES

         In his second issue, Garcia argues that the trial court erred in refusing to include an

instruction for the lesser-included offenses of robbery, aggravated assault, and theft in the

jury charge.11 Garcia asserts that the record contains evidence “that would have permitedt

[sic] a jury rationally to find appellant guilty (if at all) of the lesser offenses of robbery,

aggravated assault[,] or theft.” Conversely, the State asserts that there was no evidence

from which a rational jury could have acquitted Garcia of aggravated robbery while

convicting him of the lesser-included offenses of robbery, aggravated assault, or theft. In


appellant’s conviction was not overturned on the basis of the knife not being found. See id. At trial, Garcia
m erely argued that there was uncertainty as to whether a knife existed at all.

         11
              Article 37.09 of the code of crim inal procedure provides that an offense is a lesser-included offense
if:

         (1) it is established by proof of the sam e or less than all the facts required to establish the
         com m ission of the offense charged;

         (2) it differs from the offense charged only in the respect that a less serious injury or risk of
         injury to the sam e person, property, or public interest suffices to establish its com m ission;

         (3) it differs from the offense charged only in the respect that a less culpable m ental state
         suffices to establish its comm ission; or

         (4) it consists of an attem pt to com m it the offense charged or an otherwise included offense.

T EX . C OD E C R IM . P R O C . A N N . art. 37.09 (Vernon 2006).

                                                              15
particular, the State notes that because Garcia’s theory at trial was that he did not commit

any offense and because there was no evidence demonstrating that Garcia was only guilty

of a lesser-included offense, a charge on a lesser-included offense was not required.

A. Standard of Review

       A defendant is entitled to an instruction on a lesser-included offense if (1) the lesser

offense is a lesser-included offense of the charged offense, and (2) there is some evidence

in the record that would permit a jury rationally to find that if the defendant is guilty, he is

guilty only of the lesser offense. Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App.

2006). The court of criminal appeals recently analyzed article 37.09 of the code of criminal

procedure and clarified the two-step analysis used in determining if a defendant is entitled

to an instruction on a lesser-included offense. Hall v. State, 225 S.W.3d 524, 534-37 (Tex.

Crim. App. 2007).

       In the first step, the elements of the offense as alleged in the indictment are

compared to the statutory elements of the potential lesser-included offense. Id. at 535-36.

This determination is a question of law and does not depend on the evidence adduced at

the trial. Id. at 535. If the greater offense may be committed in more than one manner,

the manner alleged will determine the availability of lesser-included offenses. Id. at 531.

       If the first step is satisfied, a reviewing court then proceeds to determine if there is

some evidence that would permit a rational jury to find that the defendant is guilty of the

lesser offense, but not guilty of the greater. Id. at 536. Anything more than a scintilla of

evidence may be sufficient to entitle a defendant to a charge on the lesser offense. Id. “[I]t

is not enough that the jury may disbelieve crucial evidence pertaining to the greater

offense, but rather, there must be some evidence directly germane to the lesser-included

offense for the finder of fact to consider before an instruction on a lesser-included offense
                                              16
is warranted.” Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003). We review

all evidence presented at trial to make this determination. Rousseau v. State, 855 S.W.2d

666, 673 (Tex. Crim. App. 1993). If the evidence raises the issue of a lesser-included

offense, a jury charge must be given based on that evidence, “‘whether produced by the

State or the defendant and whether it be strong, weak, unimpeached, or contradicted.’”

Id. at 672 (quoting Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim. App. 1985)).

B. Discussion

      1. Jury Instruction on Aggravated Assault and Theft

      After both sides had rested, the trial court facilitated a charge conference in which

the following exchange took place:

      MS. NEMER [Prosecutor]:            Basically, it’s just a standard jury charge,
                                         just so you know. I’ll call Ms. Graham
                                         [Garcia’s trial counsel], and I’ll let her, of
                                         course, see it. It’s prepared by the
                                         District Attorney’s office with him
                                         testifying, of course.

                                                Originally, I thought there might be
                                         some lesser includeds of a robbery and
                                         an aggravated assault. I don’t believe
                                         that that’s come through. I think it’s an all
                                         or nothing on the aggravated robbery. . .

      MS. GRAHAM:                        Well, I think there’s a lesser included of
                                         robbery in there, maybe not aggravated
                                         assault, but—

      MS. NEMER:                         I don’t honestly see how there’s a
                                         predicate. He’s saying he didn’t do it. All
                                         the witnesses are saying that there was a
                                         knife. There has to be some evidence
                                         that, if he’s guilty, he’s only guilty of
                                         robbery. I don’t see any evidence to that,
                                         Your Honor, do you?

      MS. GRAHAM:                        Well, I think from the facts that we need
                                         to determine if it’s an aggravated robbery
                                           17
                                     or a regular robbery.
       ....

THE COURT:                           I’m inclined to not to include a lesser
                                     included at this time . . . .

       ....

MS. GRAHAM:                          Well, I mean there is evidence in here
                                     where the jury can make a decision on
                                     the finding of robbery. I mean, if they
                                     decide that there was no knife.

       ....

MS. NEMER:                           —there has to be—I can bring you the
                                     case—I’m sure Your Honor doesn’t need
                                     the case law. You’ve done enough jury
                                     charges. Your Honor knows that in order
                                     for him to be—a lesser included to be
                                     included, there must be some evidence
                                     that if he’s guilty of anything, he’s only
                                     guilty of that.

                                            There has only been testimony that
                                     a knife was used. There is—you don’t
                                     just automatically going [sic] to lesser
                                     included because someone might think
                                     something. It has—there has to actually
                                     be evidence that there was no knife. Not
                                     one person has gotten up there and said
                                     there was no knife, Judge. She’s wrong.

MS. GRAHAM:                          There’s evidence of the theft and
                                     evidence of an assault, but the issue of
                                     the knife can be debated. That’s why I
                                     say there’s a lesser included of robbery
                                     included—that could be included in the
                                     jury charge.

       ....

THE COURT:                           Yeah. No, I’m not going to, I’m not going
                                     to include a lesser included offense.

Garcia’s trial counsel later re-urged her objection to the trial court’s refusal to include

                                        18
an instruction on the alleged lesser-included offense of robbery. Garcia’s trial counsel did

not object to any other aspects of the jury charge and did not specifically allege that the

jury should be charged on aggravated assault and theft. We conclude that Garcia failed

to preserve his argument with respect to the trial court’s refusal to include an instruction

on aggravated assault and theft. See TEX . R. APP. P. 33.1; see also Vasquez v. State, 919

S.W.2d 433, 434 (Tex. Crim. App. 1996) (en banc) (holding that “[i]n order to preserve

error relating to the jury charge[,] there must either be an objection or a requested charge”)

(citing Boles v. State, 598 S.W.2d 274, 278 (Tex. Crim. App. 1980)).

       2. Jury Instruction on Robbery

       Garcia was indicted for aggravated robbery and counsel for Garcia argued for a jury

instruction on robbery at the charge conference. The parties do not dispute that robbery

is a lesser-included offense of aggravated robbery, thus satisfying the first prong of the Hall

test. See 225 S.W.3d at 535-36; see also Neighbors v. State, No. 2-07-176-CR, 2008 Tex.

App. LEXIS 4467, at *14 (Tex. App.–Fort Worth June 12, 2008, pet. ref’d) (mem. op., not

designated for publication) (concluding that robbery is a lesser-included offense of

aggravated robbery) (citing Ex parte Walton, 626 S.W.2d 528, 530 (Tex. Crim. App. 1981);

Russell v. State, 804 S.W.2d 287, 289 (Tex. App.–Fort Worth 1991, no pet.)). We must

next determine if there is some evidence adduced at trial demonstrating that if Garcia is

guilty, he is guilty of only robbery. See Hall, 225 S.W.3d at 536.

       Garcia testified at trial that he had not committed any offense and denied the

existence of the knife. The court of criminal appeals has held that “[a] defendant’s own

testimony that he committed no offense, or testimony which otherwise shows that no

offense occurred at all, is not adequate to raise the issue of a lesser-included offense.”

Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001). Moreover, in Bignall v. State,
                                           19
the court of criminal appeals concluded that “if a defendant either presents evidence that

he committed no offense or presents no evidence, and there is no evidence otherwise

showing that he is guilty only of a lesser-included offense, then a charge on a lesser-

included offense is not required.” 887 S.W.2d 21, 23 (Tex. Crim. App. 1994).

       The jury, the sole judge of the credibility of witnesses and the weight afforded to

their testimony, see Beckham, 29 S.W.3d at 151, concluded that the testimony of Vela and

Rich was more credible than Garcia’s and that a knife existed. If the jury did not believe

that Garcia brandished a knife in the commission of the offense, then it would have

acquitted Garcia. In addition, counsel for Garcia repeatedly argued that the existence of

the knife was up for debate and this necessitated a jury instruction on robbery. However,

as previously noted, “it is not enough that the jury may disbelieve crucial evidence [i.e., the

existence of the knife] pertaining to the greater offense, but rather, there must be some

evidence directly germane to the lesser-included offense . . . .” Hampton, 109 S.W.3d at

441. Even assuming that the existence of the knife was up for debate, that was not

enough to warrant a jury instruction on a lesser-included offense. See id. Based on our

review of the record, Garcia did not proffer any evidence directly germane to the lesser-

included offense of robbery. We therefore conclude that the evidence adduced at trial

does not support Garcia’s contention on appeal that he was only guilty of robbery rather

than aggravated robbery, and that the trial court did not err in refusing to include an

instruction on robbery in the jury charge. See id.; see also Hall, 225 S.W.3d at 536.

Garcia’s second issue is overruled.

                       IV. SELF -DEFENSE AND DEFENSE OF PROPERTY

       In his third issue, Garcia argues that the trial court erred in refusing to include an

instruction on self-defense and defense of property in the jury charge. The State contends
                                            20
that the trial court did not err in refusing to include instructions on self-defense and defense

of property because: (1) Garcia denied that any criminal act took place; (2) a robber has

no right of self-defense against his victim; (3) there was no evidence presented that Vela

used deadly force against Garcia; (4) Garcia consented to the force exacted by Vela; (5)

the use of force against another is not justified if the actor provoked the other’s use of

unlawful force; (6) Garcia did not properly request such an instruction or object to the

absence of the instructions; and (7) Garcia failed to present evidence raising the issue.

A. Standard of Review

       An accused is entitled 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 think about the credibility of the evidence. Granger

v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999); Hudson v. State, 145 S.W.3d 323, 324-

25 (Tex. App.–Fort Worth 2004, pet. ref’d). But when the evidence fails to raise a

defensive issue, the trial court commits no error in refusing a requested instruction. Muniz

v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993); Hudson, 145 S.W.3d at 325.

B. Discussion

       At the jury charge conference, the following exchange occurred:

       MS. GRAHAM:                  And, Your Honor, there’s evidence that he said
                                    that he was provoked. Can we include a—

       THE COURT:                   A what.

       MS. GRAHAM:                  —self-defense?

       MS. NEMER:                   Absolutely not. There’s no evidence that he was
                                    provoked.

              ....

       THE COURT:                   I’m not going to—I guess your request is denied
                                             21
                                           or your motion is denied.

        With respect to a defendant’s entitlement to a self-defense instruction,12 the Austin

Court of Appeals noted the following:

                Self-defense, like other chapter nine defenses, justifies conduct that
        would otherwise be criminal. Young v. State, 991 S.W.2d 835, 838 (Tex.
        Crim. App. 1999) (necessity); Wallace v. State, 75 S.W.3d 576, 587 (Tex.
        App.–Texarkana 2002) (self-defense), aff’d, 106 S.W.3d 103, 109 (Tex.
        Crim. App. 2003). In other words, the defendant must “admit” violating the
        statute under which he is being tried, then offer a statutory justification for his
        otherwise criminal conduct. Young, 991 S.W.2d at 838. Thus, a defendant
        is not entitled to a jury instruction on self-defense if, through his own
        testimony or the testimony of others, he claims that he did not perform the
        assaultive acts alleged, or that he did not have the requisite culpable mental
        state, or both. Ex parte Nailor, 149 S.W.3d 125, 134 (Tex. Crim. App. 2004);
        East v. State, 76 S.W.3d 736, 738 (Tex. App.–Waco 2002, no pet.); Wallace,
        75 S.W.3d at 587; Gilmore v. State, 44 S.W.3d 92, 97 (Tex. App.–Beaumont
        2001, pet. ref’d); Anderson v. State, 11 S.W.3d 369, 372 (Tex.
        App.–Houston [1st Dist.] 2000, pet. ref’d). . . . In each of these cases, all the
        defensive testimony was to the effect that the defendant did not commit the
        alleged acts, and the defendant was thus not entitled to a self-defense
        instruction because there was no evidence that he acted in self-defense.

VanBrackle v. State, 179 S.W.3d 708, 715 (Tex. App.–Austin 2005, no pet.) (emphasis in

original). Moreover, the court of criminal appeals has held that a robber has no right of

self-defense against his victim. See Westley v. State, 754 S.W.2d 224, 230 (Tex. Crim.

App. 1988). In the present case, Garcia contended that he did not commit any offense and

that he and Vela were merely “horseplaying.” Because there was no evidence adduced

at trial raising self-defense and because Garcia denied committing any offense, we

conclude that the trial court did not err in refusing to instruct the jury about self-defense.

See Westley, 754 S.W.2d at 230; VanBrackle, 179 S.W.3d at 715; see also Muniz, 851



        12
           Section 9.31 of the penal code provides that “a person is justified in using force against another
when and to the degree he reasonably believes the force is im m ediately necessary to protect him self against
the other’s use or attem pted use of unlawful force.” T EX . P EN AL C OD E A N N . § 9.31(a) (Vernon Supp. 2008).
Subsection (b) also provides that the use of force is not justified “in response to verbal provocation alone.”
Id. § 9.31(b)(1).
                                                       22
S.W.2d at 254; Hudson, 145 S.W.3d at 325. With respect to his defense of property

contention,13 Garcia has provided neither argument nor authority in support of his

contention; therefore, this argument is inadequately briefed. See TEX . R. APP. P. 38.1. In

any event, the refusal to instruct the jury on defense of property is not error when there is

no evidence of a defendant’s reasonable belief that force was necessary to recover his

property. MacDonald v. State, 761 S.W.2d 56, 61 (Tex. App.–Houston [14th Dist.] 1988,

pet. ref’d). The evidence does not demonstrate that Garcia’s actions towards Vela and

Rich amounted to a defense of his property. In fact, Garcia did not testify that either Vela

or Rich intended to deprive him of his property. Therefore, we conclude that the trial court

did not err in refusing to include an instruction on defense of property. Accordingly, we

overrule Garcia’s third issue.

                     V. THE STATE’S USAGE OF GARCIA’S MILITARY RECORDS

        In his fourth issue, Garcia argues that the State’s usage of his military service record

substantially prejudiced his case and that the records were improperly used to prove

conformity of his conduct. See TEX . R. EVID . 403, 404(b). The State counters by arguing

that Garcia’s military records were properly used to impeach his testimony that allegedly

created a false impression about his prior trouble with military authority. Arguing that this

“case was essentially a swearing match between the victim and Appellant” and the

“outcome hinged on credibility assessments,” the State asserted that Garcia’s military

records were relevant and admissible because he opened the door when he “represented

to the jury that the only time he had previously been in trouble was when he was in the


        13
           Section 9.41 of the penal code provides that a person is justified in using force in protection of his
own property “when and to the degree the actor reasonably believes the force is im m ediately necessary to
prevent or term inate the other’s trespass on the land or unlawful interference with the property.” Id. § 9.41(a)
(Vernon 2003).
                                                      23
military and that it was only for cocaine use and being AWOL . . . .”

A. Standard of Review

       The admission of evidence is reviewed under an abuse of discretion standard.

Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990) (op. on reh’g). As

long as the trial court’s ruling was within the “zone of reasonable disagreement,” there is

no abuse of discretion, and we must uphold the trial court’s ruling. Id. at 381. Relevant

evidence may be excluded if its probative value is substantially outweighed by its

prejudicial effect. TEX . R. EVID . 403. However, rule 403 favors the admission of relevant

evidence and carries a presumption that relevant evidence will be more probative than

prejudicial. Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). In conducting

a rule 403 analysis, we may consider, among other things: (1) how probative the evidence

is; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless

indelible way; (3) the time the proponent needs to develop the evidence; and (4) the

proponent’s need for the evidence. Id.

       However, under the opened-door doctrine, a defendant cannot intentionally broach

a subject and then complain when the subject is subsequently pursued by the State.

Mares v. State, 52 S.W.3d 886, 890 (Tex. App.–San Antonio 2001, pet. ref’d); see Delk v.

State, 855 S.W.2d 700, 705 (Tex. Crim. App. 1993), overruled on other grounds by Ex

parte Moreno, 245 S.W.3d 419, 425 (Tex. Crim. App. 2008) (“Where the witness creates

a false impression of law abiding behavior, he ‘opens the door’ on his otherwise irrelevant

past criminal history and opposing counsel may expose the falsehood.”); Green v. State,

831 S.W.2d 89, 94 (Tex. App.–Corpus Christi 1992, no pet.) (“When the defendant ‘opens

the door’ on an issue by attempting to present an incomplete picture of an incident, the

State is permitted to complete the picture by presenting evidence that would otherwise
                                           24
have been inadmissible.”).

B. Discussion

       We begin by noting that Garcia’s trial counsel only objected to the State’s

introduction of Garcia’s military records under rule 403. TEX . R. EVID . 403. Specifically,

Garcia’s trial counsel argued that the prejudicial effect of introducing the records

outweighed its probativeness. See id. On appeal, Garcia argues that the State improperly

used the military records to prove conformity of his conduct. See TEX . R. EVID . 404(b).

However, Garcia’s rule 404(b) objection was never made to the trial court. We therefore

conclude that Garcia has not preserved this contention for appeal. See TEX . R. APP. P.

33.1 (providing that “[a]s a prerequisite to presenting a complaint for appellate review, the

record must show that . . . the complaint was made to the trial court by a timely request,

objection, or motion” stating the specific grounds for the desired ruling if the specific

grounds are not apparent from the context); see also Montgomery, 810 S.W.2d at 388

(holding that an objection under both rules 403 and 404(b) is required to preserve error

regarding the admission of evidence of an extraneous offense); Zayas v. State, No. 13-04-

532-CR, 2005 Tex. App. LEXIS 9693, at **5-6 (Tex. App.–Corpus Christi Nov. 17, 2005,

no pet.) (mem. op., not designated for publication) (concluding that the failure to

specifically make a rule 403 or rule 404(b) objection to the trial court in a timely manner

does not preserve error). As a result, we will focus on Garcia’s rule 403 objection.

       With respect to his rule 403 objection, Garcia does not argue on appeal exactly how

the admission of his military records constituted an unfair prejudice. Garcia only states that

“the evidence still created unfair prejudice when allowed to be entered as business records

over defense objections.” We conclude that this contention was inadequately briefed. See

TEX . R. APP. P. 38.1.
                                             25
        Even assuming that Garcia had adequately briefed this contention, the record

reflects that Garcia painted an inaccurate picture as to his disciplinary history while in the

military. As previously mentioned, Garcia testified that he was only disciplined for going

AWOL and for using cocaine. However, Garcia’s military records indicated that he had

previously engaged in drug trafficking as well. Because Garcia created a false impression

of his law abiding behavior, he “opened the door” and the State was permitted to impeach

him with his military records.14 See Mares, 52 S.W.3d at 890; see also Delk, 855 S.W.2d

at 705; Green, 831 S.W.2d at 94. Furthermore, at no point did Garcia request that the trial

court issue a limiting instruction to the jury to consider the military records for impeachment

purposes only. We conclude that the trial court did not abuse its discretion in admitting

Garcia’s military records because Garcia “opened the door.” Accordingly, Garcia’s fourth

issue is overruled.

                                           VI. CONCLUSION

        Having overruled all of Garcia’s issues, we affirm the judgment of the trial court.



                                                         DORI CONTRERAS GARZA,
                                                         Justice

Do not publish.
TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and
filed this the 8th day of January, 2009.




        14
             W e need not address whether the m ilitary records were properly adm itted under the business
records exception to the hearsay rule because Texas courts allow the State to im peach a witness with
evidence that would otherwise be inadm issible once the witness “opens the door.” See Green v. State, 831
S.W .2d 89, 94 (Tex. App.–Corpus Christi 1992, no pet.). Moreover, Garcia only challenged the adm ission
of the m ilitary records on rule 403 grounds. See T EX . R. E VID . 403.
                                                   26
