Opinion issued January 7, 2014.




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-12-00378-CR
                          ———————————
                   CHRISTOPHER HEDLUND, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



          On Appeal from the County Criminal Court at Law No. 8
                           Harris County, Texas
                       Trial Court Case No. 1749885



                         MEMORANDUM OPINION

      A jury convicted appellant, Christopher Hedlund, of misdemeanor assault

causing bodily injury, and the trial court assessed punishment at three days’

confinement and a $500 fine. In his sole issue on appeal, appellant contends the
trial court erred by refusing his requested jury instruction on self-defense. We

affirm.

                                 BACKGROUND

        Appellant and his next-door neighbor, Steve Northcutt, had an ongoing

dispute over a ceramic plate that appellant used as a birdfeeder, which he placed on

a common brick wall behind their houses. Appellant testified that the plate had

been broken “about fifty times.” Although he never saw Northcutt do so, appellant

believed that Northcutt was repeatedly breaking the birdfeeder. Northcutt denied

ever breaking the birdfeeder.

        On the evening of April 10, 2011, appellant discovered that the birdfeeder

had been broken again, so he gathered up the broken ceramic shards and walked

next door to confront Northcutt. Northcutt, who had been away for the day at his

teen-aged son’s track meet, was sitting on the couch when he heard the doorbell

ring.     Believing that it was his dogsitter, Northcutt opened the door to find

appellant standing there with something clenched in his fists. Appellant testified

that he told Northcutt, “Steve, you guys have to stop this,” and Northcutt

responded by saying, “I don’t know what you’re talking about,” and laughing at

appellant. In contrast, Northcutt testified that he asked, “Chris, what are you doing

here?” What happened next is undisputed.




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      Both appellant and Northcutt agree that appellant threw the shards of

ceramic in Northcutt’s home without any prior physical provocation by Northcutt.

Appellant testified that he threw the ceramic pieces because he was frustrated

when Northcutt laughed at him. He said that it was his intention to “make a mess

in [Northcutt’s] house,” and denied hitting Northcutt with any of the shards. In

contrast, Northcutt testified that when he asked appellant why he was at his house,

appellant “took a step forward into the house and threw [the shards] into my face.”

Northcutt further testified that the shards hit him in the face and chest, causing pain

and cuts on his face.

      A fight then ensued, with each man providing a different version of the facts.

Appellant testified that after he threw the ceramic pieces, Northcutt lunged at him

and began grabbing and punching him. The fight continued into the street until

Northcutt’s 18-year-old son intervened and put appellant in a chokehold until he

passed out.

      Northcutt, however, testified that after appellant threw the ceramic pieces at

him, Northcutt’s dog ran outside, where appellant kicked it. Northcutt testified that

he came outside to get appellant off of his dog, when appellant grabbed Northcutt’s

shirt and slung him down on the ground. When Northcutt tried to get up, appellant

pulled the shirt over Northcutt’s head, spun him around, and threw him into the




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street. Northcutt’s son, who had heard the altercation and the dog yelping, came

outside, jumped on appellant’s back, and choked him until he lost consciousness.

      When appellant came to and sat up, Northcutt and his son went back inside

and called the police.      Appellant’s wife also called police.          After a brief

investigation at the scene, appellant was arrested and charged with assault causing

bodily injury.

                                  SELF-DEFENSE

  Standard of Review and Applicable Law

      Appellant contends that the trial court erred by failing to instruct the jury

regarding self-defense. Our review of alleged jury charge error involves a two-step

process.   Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App.

1994); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).

Initially, we determine whether an error occurred, and then “determine whether

sufficient harm resulted from the error to require reversal.” Abdnor, 871 S.W.2d at

731–32; Almanza, 686 S.W.2d at 171.

      The trial court shall “deliver to the jury . . . a written charge distinctly setting

forth the law applicable to the case [and] not expressing any opinion as to the

weight of the evidence. . . .” TEX. CODE CRIM. PROC. art. 36.14 (Vernon 2007). The

trial court is required to instruct the jury on statutory defenses, affirmative

defenses, and justifications when they are raised by the evidence and requested by

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the defendant. Walters v. State, 247 S.W.3d 204, 208–09 (Tex. Crim. App. 2007);

see also Posey v. State, 966 S.W.2d 57, 63 (Tex. Crim. App. 1998) (holding trial

court has no duty to sua sponte instruct jury on unrequested defensive issues). A

trial court’s decision to deny a defensive issue in a jury charge is reviewed for an

abuse of discretion. See Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App.

2000). When reviewing a trial court’s decision to deny a requested defensive

instruction, we view the evidence in the light most favorable to the defendant’s

requested submission. Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App.

2006).

      A defendant is entitled to an instruction on self-defense if he requests it and

the issue is raised by the evidence, whether that evidence is strong or weak,

unimpeached or contradicted, and regardless of what the trial court may think

about the credibility of the defense. Hayes v. State, 728 S.W.2d 804, 807 (Tex.

Crim. App. 1987). “[A] defense is supported (or raised) by the evidence if there is

some evidence, from any source, on each element of the defense that, if believed

by the jury, would support a rational inference that that element is true.” Shaw v.

State, 243 S.W.3d 647, 657 (Tex. Crim. App. 2007).

Analysis

      Appellant argues that he was entitled to a charge on self-defense because he

testified that Northcutt “hit him first and he was merely defending himself.”

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However, the jury charge in this case required the jury to convict appellant of

assault if it found beyond a reasonable doubt that he “[d]id then and there

unlawfully intentionally or knowingly cause bodily injury to STEVE

NORTHCUTT, hereinafter called the Complainant, by throwing an object at the

complainant.” (Emphasis added). Thus, the issue is not who threw the first punch,

but whether at the time appellant threw the plate—the offense with which he is

charged—his use of force was justified.

      A person is justified in using force against another when and to the degree

the actor reasonably believes the force is immediately necessary to protect the

actor against the other’s use or attempted use of unlawful force. TEX. PENAL CODE

§ 9.31(a) (Vernon 2011).

      Here, the evidence is undisputed that Northcutt did not use or attempt to use

any force, lawful or not, against appellant before appellant threw the ceramic

pieces. Both appellant and Northcutt testified that before appellant threw the

ceramic pieces, Northcutt had taken no aggressive physical action against

appellant.

      [Prosecutor]: It wasn’t until after you threw those pieces that Mr.
      Northcutt made any aggressive move towards you, correct?

      [Appellant]: That’s my recollection.

Even viewing the evidence in the light most favorable to appellant, as we must,

Northcutt had merely laughed when confronted by appellant about the broken
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birdfeeder. However, the use of force against another is not justified in response to

verbal provocation alone. Id. § 9.31(b)(1); Hamel v. State, 916 S.W.2d 491, 494

(Tex. Crim. App. 1996) (recognizing that verbal provocation alone does not justify

use of self-defense).

      Because the undisputed evidence, viewed in the light most favorable to

appellant, shows that Northcutt never threatened to use, attempted to use, or used

any unlawful force against appellant before appellant threw the ceramic pieces,

appellant in turn was not lawfully entitled to use any physical force against

Northcutt. See Jackson v. State, 110 S.W.3d 626, 632 (Tex. App.—Houston [14th

Dist.] 2003, pet. ref’d) (holding that trial court did not err in denying self-defense

charge when “[a]ppellant testified [the complainant] did not hit him. And there is

no evidence she hit appellant or that she even threatened him. In short, viewing the

evidence in the light most favorable to appellant, we are left with a picture in

which appellant assaulted a person who never used or attempted to use unlawful

force against him.”).

      Because the evidence, viewed in the light most favorable to appellant

establishes as a matter of law that appellant’s use of force was not justified, the

trial court did not err in denying his request for a self-defense instruction.

Accordingly, we overrule appellant’s sole issue on appeal.




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                                CONCLUSION

      We affirm the trial court’s judgment.



                                               Sherry Radack
                                               Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

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




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