
 
 
 






NUMBER 13-01-521-CR


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI-EDINBURG

 

ALLEN LEE SMITH,                           	Appellant,

v.


THE STATE OF TEXAS,	Appellee.
 

On appeal from the 148th District Court   

of Nueces County, Texas.

 

O P I N I O N


Before Chief Justice Valdez and Justices Rodriguez and Dorsey (1) 
Opinion by Chief Justice Valdez   
  
Appellant, Allen Lee Smith, was indicted on two counts of felony unlawful restraint. 
The jury found appellant guilty of the lesser included offense of misdemeanor unlawful
restraint, and the trial court assessed punishment at one year in jail and a $500.00 fine for
each count.  The confinement for each count was suspended.  Through one issue,
appellant argues the trial court erred in refusing to charge the jury on the "educator-student
justification defense."  We affirm.
Facts
	Complaining witnesses, Aaron Cavallin and Justin Simmons, two men between the
ages of seventeen and nineteen, were on probation and referred to the youth Lighthouse
program.  The Lighthouse program is a home for young men who have committed crimes
and are placed there by courts as an alternative to prison or jail.  It is located on a large
tract of land near Corpus Christi, Texas, and is owned and operated by the People's
Baptist Church.  The Lighthouse provides a year-long program involving the completion of
various tasks.  
	Residents sign a form stating that they are at the Lighthouse of their own free will,
will comply with its rules and regulations, and that if they fail to comply with the rules and
regulations sanctions will be administered.  Intentional misbehavior is punished by
sanctions such as running laps.  Appellant served as superintendent of the Lighthouse. 
He testified that it was his responsibility "to educate the young men and try to get them
going in the right direction."  Appellant testified that if one of the residents wants to leave,
he could do so, but is encouraged to stay, and that if the individual was on probation, he
would call the individual's probation officer when he left.   	
	On March 28, 2000, Smith was informed that both Simons and Cavallin attempted
to run away but were caught.  Appellant told the men they could leave, but, if they did he
would inform the court and their probation officers.   If they stayed, however, they would
have to submit to sanctions for trying to run away.  The first sanction required the men to
run barefoot down a dirt road on the property while tied together at the wrist.  Appellant
testified, he "wanted them to see just exactly how it would be like if they escaped from a
correctional facility handcuffed to one another."  As a second sanction appellant ordered
the men to enter a large empty pit that had recently been dug on the property as a
drainage ditch.  The men were instructed to shovel dirt from one side of the hole to the
other.  They were instructed to do so all night.  Other residents were assigned to keep
watch as Cavallin and Simmons worked.  Appellant testified that he put the two in the pit
in order to make it as difficult as he could, in order to see if they really wanted to stay.
Analysis
	Through his sole issue on appeal, appellant argues that the trial court erred in
refusing to charge the jury on the educator-student justification defense.
	Texas Penal Code section 9.62 provides:
	The use of force, but not deadly force, against a person is justified:

	(1) if the actor is entrusted with the care, supervision, or administration of the
person for a special purpose; and 
 
	(2) when and to the degree the actor reasonably believes the force is
necessary to further the special purpose or to maintain discipline in a group.

Tex. Pen. Code Ann. § 9.62 (Vernon Supp. 2002).
	A defendant 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 whether the trial court finds the defense credible.  Hammel v. State, 916 S.W.2d
491, 493 (Tex. Crim. App. 1996).  
	The State contends that appellant was not entitled to an instruction on the educator-student justification defense because appellant failed to admit committing the conduct
alleged.  
	 Similar to self-defense, a defendant cannot establish that his conduct was justified
by the "educator-student" relationship without first admitting that the conduct occurred. 
See East v. State, 76 S.W.3d 736, 738 (Tex. App.-Waco 2002, no pet.); see also
Kimbrough v. State, 959 S.W.2d 634, 640 (Tex. App.-Houston [14th Dist.] 1988, pet. ref'd). 
The Texas Court of Criminal Appeals has explained that admitting the conduct does not
always mean admitting the commission of every statutory element of the offense.  
Martinez v. State, 775 S.W.2d 645, 647 (Tex. Crim. App. 1989).  For example, in Martinez,
the defendant charged with murder admitted to pulling a gun and firing it into the air,
however, he denied the intent to kill.  Id.  The court of criminal appeals held he had
sufficiently admitted to the conduct.  Id.;  see Willis v. State, 790 S.W.2d 307, 314 (Tex.
Crim. App. 1990) (denial of the "intent" element of theft does not automatically negate an
affirmative defense).  
	In the present case, each count of the indictment charged appellant with
"intentionally and knowingly by force intimidation and deception restrain [the victim] without
his consent by restricting the movements of [the victim] and . . . did then and there
recklessly expose [the victim] . . . to a substantial risk of serious bodily injury."       	Appellant's testimony, however, negated: 1) restraint; 2) lack of consent by victims;
and 3) that he used either force, intimidation, or deception.  Accordingly, having denied that
he committed the underlying conduct alleged against him, appellant did not "substantially
admit" the conduct and consequently was not entitled to this instruction.  See East, 76
S.W.3d at 738.
	Therefore, having found appellant failed to admit the conduct in question we cannot
say the trial court erred in refusing to instruct the jury on the educator-student justification. 
See Maldonado, 902 S.W.2d at 712 (case involving necessity defense instruction, in which
reviewing court opined that evidence did not support submission of defensive issue
because appellant did not, as a prerequisite, admit committing the underlying conduct). 
Appellant's sole issue on appeal is overruled.Conclusion
	We affirm the judgment of the trial court. 
 								Rogelio Valdez                              
  								Chief Justice	

Dissenting opinion by Retired Justice J. Bonner Dorsey 
 
Publish. 
Tex. r. App. P. 47.2(b)

Opinion delivered and filed
this 13th day of March, 2003.
1. Retired Justice J. Bonner Dorsey assigned to this Court by the Chief Justice of the Supreme Court
of Texas pursuant to TEX. GOV'T CODE ANN. § 74.003 (Vernon 1998).

