Opinion filed April 11, 2013




                                           In The


         Eleventh Court of Appeals
                                         __________

            Nos. 11-11-00084-CR, 11-11-00085-CR, & 11-11-00086-CR
                                  _________

                        ISAIAS LUJAN PALACIOS, Appellant

                                              V.

                           THE STATE OF TEXAS, Appellee


                           On Appeal from the 142nd District Court

                                   Midland County, Texas

                   Trial Court Cause Nos. CR36475, CR36477, & CR36479


                               MEMORANDUM OPINION
       The grand jury indicted Isaias Lujan Palacios on four counts of aggravated assault with a
deadly weapon and one count of evading arrest and detention in a motor vehicle. The jury found
him guilty of two of the four counts of aggravated assault with a deadly weapon and guilty of
evading arrest and detention in a motor vehicle. Palacios pleaded true to the enhancement
paragraph in each of the aggravated assault cases, and the trial court found the enhancement
paragraphs to be true. The trial court assessed his punishment for each count of aggravated
assault at twenty years confinement in the Institutional Division of the Texas Department of
Criminal Justice and assessed his punishment for evading arrest and detention at two years
confinement in the State Jail Division. In addition, the trial court ordered Palacios to pay
restitution to one of the victims in an amount not to exceed $14,000 and ordered him to pay
restitution to the other victim in an amount not to exceed $21,000. The trial court sentenced him
accordingly and ordered his sentences to run concurrently. We affirm.
       In a single issue in each case, Palacios argues that the trial court erred when it denied his
request to instruct the jury on his defenses of self-defense, necessity, and duress. When the
evidence at trial raises a defensive issue, and the defendant properly requests a jury instruction
on that issue, the trial court must submit the issue to the jury. Booth v. State, 679 S.W.2d 498,
500 (Tex. Crim. App. 1984). “[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,
657–58 (Tex. Crim. App. 2007).
       The doctrine of confession and avoidance applies to the defenses of self-defense,
necessity, and duress. Juarez v. State, 308 S.W.3d 398, 399 (Tex. Crim. App. 2010) (necessity);
Ex parte Nailor, 149 S.W.3d 125, 132–34 (Tex. Crim. App. 2004) (self-defense); Gomez v.
State, 380 S.W.3d 830, 834 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) (duress). Thus,
to be entitled to an instruction on any one of these defensive issues, Palacios must have admitted
to the conduct through his own testimony or through statements he made to other individuals.
See Wood v. State, 271 S.W.3d 329, 335–36 (Tex. App.—San Antonio 2008, pet. ref’d) (holding
the evidence showed, even when defendant did not testify, that defendant admitted to the charged
conduct when the testimony of several witnesses indicated that she intended her conduct).
       The evidence at trial showed that Palacios went to Riley’s Bar & Grill in Midland with
his common-law wife and mother-in-law on Memorial Day.                                 Several patrons testified that
Palacios pushed his mother-in-law off her bar stool and laughed at her. Jaime Mendez, one of
the patrons, went over to help her up, and Palacios became offended. He rushed at Mendez,
started swinging, and threw a punch at him. Palacios was escorted out of the bar. A few minutes
later, Palacios came back into the bar and threw a cement block. The cement block hit a pool
table, bounced off, and hit a bartender and another patron. 1



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        The jury acquitted Palacios for the aggravated assault charges in relation to the cement block.

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       Palacios was again escorted out of the bar, and a fight broke out between him and several
male patrons. At one point, the men held Palacios down and kicked him all over his body.
Steven Taft, one of the patrons involved, testified that he also ended up on the ground and was
hit and kicked. The men finally let Palacios up, and he walked to his Lincoln Navigator. No one
chased him to his vehicle.
       Palacios revved his engine and “floor[ed] it” toward the front entrance of Riley’s.
Sandra Payan’s left hand was struck by the vehicle, and she fell to the ground. Palacios drove
his vehicle into a white pickup and pinned Diane Tersero in between his vehicle and the pickup.
She was pinned from the waist down and could not move until Palacios backed up.
       As Palacios made his way out of the parking lot, Sergeant Richard Lewis of the Midland
Police Department arrived in response to a report of the disturbance. Sergeant Lewis observed
Palacios as Palacios tried to leave the parking lot in a maroon Lincoln Navigator; people in the
lot were pointing at the vehicle. Sergeant Lewis signaled for Palacios to back up because he was
blocking his entrance into the parking lot. Palacios did not back up or pull over. Instead, he
pulled out of the parking lot, started driving, and accelerated away from Sergeant Lewis.
Sergeant Lewis activated his lights and followed Palacios, who still did not pull over.
Sergeant Lewis activated his siren and continued to follow Palacios. Palacios eventually pulled
into his sister’s yard and stopped up against the fence.
       Palacios’s mother-in-law testified that Palacios did not hit, shove, or push her off her bar
stool or make her fall to the ground. She testified that Palacios kept messing with her hair and
that they were joking around and harassing each other in a playful manner. Neither of them were
cursing, using angry words, or yelling at the other. The initial altercation began when Mendez
“blind-sided [Palacios] from the back.” Two other men joined Mendez and hit and kicked
Palacios all over his body. The men drug Palacios outside. When he tried to come back inside,
he threw a concrete block onto the pool table; he appeared to be defending himself. Palacios was
not the aggressor; “[h]e was trying to save his life.” The men “jerked him back outside.”
Palacios’s mother-in-law also testified that she did not see anything that happened outside.
       Palacios’s wife, Shanna Renee Parker, did not see how the initial altercation started
because she had left Riley’s to get cash. When she pulled back into the parking lot from getting
the cash, she saw three men, including Mendez, grab Palacios by his clothes and swing him like
a baby out the front door of Riley’s. He landed face-first on the ground. She put the Navigator

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in park and ran to the front door to help him. The three men followed him outside and hit and
kicked him. Palacios stood up and ran to the Navigator. Two other men shoved Palacios to the
ground and started hitting and kicking him all over. He was kicked in the face and the head
repeatedly. Parker jumped in the middle of the fight and tried to pull the two men off him. He
could not stand up straight and was “wobbly.” Parker said that Palacios was defending himself
the whole time; she never saw him be the aggressor.
       Parker was thrown to the ground and also suffered injuries. Parker and Palacios were
finally able to get into their vehicle, and Palacios tried to drive out of the parking lot. He was
going backward and forward trying to maneuver his way out; Parker had parked the vehicle in an
unusual manner. Parker testified that she feared for both their lives. Once she noticed that the
police were behind them, she told Palacios repeatedly that he needed to pull over. He was not
responding to her. She finally got his attention, and they ended up in his sister’s front yard.
Palacios never put the vehicle in park, and when he tried to get out of the vehicle, he fell to the
ground.
       We will first review the evidence to determine whether Palacios admitted to the charged
conduct. Palacios did not testify at trial. The only statement that Palacios made to police was
when Sergeant Lewis was finally able to make contact with him. Palacios told Sergeant Lewis,
“They beat me up. They beat me up.” Sergeant Lewis acknowledged that Palacios had several
marks on his face and chest. This statement, however, is not an admission by Palacios that he
assaulted two women with his vehicle or that he evaded arrest. In addition, neither of his defense
witnesses saw him hit Tersero or Payan. And, while his wife was in the vehicle with him when
Sergeant Lewis tried to pull him over, she testified that she continued to try to get him to pull
over, but he was not responding to anything she was saying. She testified that he had been
kicked in the head multiple times and “wasn’t there.” Therefore, Palacios did not admit to
aggravated assault or evading arrest and was not entitled to an instruction on any of the requested
defenses.
       Even if Palacios had admitted to assaulting the women with his vehicle or to evading
arrest, the evidence does not support a jury instruction on self-defense, necessity, or duress. As
to self-defense, the Texas Penal Code provides that “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

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CODE ANN. § 9.31(a) (West 2011). “[A] defendant is entitled to a charge on the right of self-
defense against multiple assailants if ‘there is evidence, viewed from the accused’s standpoint,
that he was in danger of an unlawful attack or a threatened attack at the hands of more than one
assailant.’” Frank v. State, 688 S.W.2d 863, 868 (Tex. Crim. App. 1985) (quoting Wilson v.
State, 145 S.W.2d 890, 893 (Tex. Crim. App. 1940)).
       The State argues that the evidence did not show that Tersero or Payan took any
aggressive action against Palacios and, thus, that Palacios was not entitled to a self-defense
instruction. We agree. Under Section 9.31(a), Palacios would be justified in using force against
Tersero and Payan only if he reasonably believed that the force was immediately necessary to
protect himself against Tersero and Payan. While Palacios presented evidence that several men
at the bar used unlawful force against him, he did not present any evidence that Tersero or Payan
used or attempted to use unlawful force against him. In addition, defense counsel acknowledged
in his closing argument that Palacios did not have to defend himself against the women:
               Now, I never heard any evidence that these four females, these women,
       did anything to Mr. Palacios. You heard from Ms. Parker and Ms. Parker, mother
       and daughter, and nobody said that these women did anything to Mr. Palacios.
       There is not a self-defense in here because they didn’t do anything to him. He
       didn’t have to defend himself against them.

Therefore, there was no evidence that would support a rational inference that Palacios acted in
self-defense when he assaulted Tersero and Payan with his Lincoln Navigator.
       Palacios also failed to present any evidence that Sergeant Lewis used or attempted to use
any unlawful force against him when Sergeant Lewis attempted to pull him over; thus, there was
no evidence that Palacios acted in self-defense when he evaded arrest. The trial court did not err
when it denied Palacios’s request to instruct the jury on self-defense on the aggravated assault
charges or on the evading arrest charge.
       We will next address the defensive issue of necessity. The Texas Penal Code provides
that a person’s conduct is justified if (1) the actor reasonably believes the conduct is immediately
necessary to avoid imminent harm, (2) the desirability and urgency of avoiding harm clearly
outweighs the harm sought to be prevented, and (3) a legislative purpose to exclude the
justification for the conduct does not otherwise plainly appear. TEX. PENAL CODE ANN. § 9.22
(West 2011).



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        While Palacios may have reasonably believed that getting into his car and immediately
leaving the scene were acts necessary to avoid any further injuries from other patrons at the bar,
there is no evidence that Palacios reasonably believed that it was necessary to assault Tersero
and Payan with his vehicle in order to avoid imminent harm. Parker testified that Palacios had
access to at least one of the exits in the parking lot. Palacios did not present any evidence to
suggest that it was necessary for him to drive toward the entrance of Riley’s, instead of toward
the exit, in order to escape.
        In addition, Palacios failed to present any evidence that it was necessary for him to evade
Sergeant Lewis to avoid harm. Sergeant Lewis testified that Palacios could have pulled his
vehicle over in several safe locations after pulling out of Riley’s parking lot. Once Palacios
pulled over, Sergeant Lewis could have protected him.            The only evidence that Palacios
presented as to why he did not pull over was his wife’s testimony that he was incoherent and did
not realize that the officer was behind him.          This evidence does not support a necessity
instruction. Thus, the trial court did not err when it denied the requested instruction.
        The affirmative defense of duress requires the actor to have engaged in the conduct
because he was compelled to do so by threat of imminent death or serious bodily injury to
himself or another. TEX. PENAL CODE ANN. § 8.05(a) (West 2011). Compulsion “exists only if
the force or threat of force would render a person of reasonable firmness incapable of resisting
the pressure.” Id. § 8.05(c). While Palacios’s wife and mother-in-law testified that he was the
victim throughout the incident at Riley’s and his wife testified she was scared for her life and for
his, there was no evidence that he would suffer imminent death or serious bodily injury if he did
not assault Tersero and Payan with his vehicle or did not evade Sergeant Lewis. Therefore, the
trial court did not err when it denied his request to instruct the jury on duress. We overrule
Palacios’s sole issue on appeal in each case.
        We affirm the trial court’s judgments.




April 11, 2013                                                        JIM R. WRIGHT
Do not publish. See TEX. R. APP. P. 47.2(b).                          CHIEF JUSTICE
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.


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