                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00147-CR


ANDREW STEPHEN PEREZ                                           APPELLANT

                                        V.

THE STATE OF TEXAS                                                   STATE


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     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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                        MEMORANDUM OPINION1

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                                  I. Introduction

      In three issues, Appellant Andrew Stephen Perez appeals his conviction

for assault of a public servant. We reverse and remand.




      1
      See Tex. R. App. P. 47.4.
                       II. Factual and Procedural Background

      After a late-night altercation with three officers from the police station that

abutted his back yard, Perez was charged with three counts of assault on a

public servant. During trial, he requested an instruction on self-defense, which

the trial court denied. A jury found Perez not guilty of assaulting Officers Brian

Lord and David Chaney but guilty of assaulting Officer Lauren Fimbres, by

      intentionally or knowingly caus[ing] bodily injury to L. Fimbres, a
      public servant, . . . by striking, grabbing or pulling L. Fimbres with his
      hand, or by placing a choke hold on L. Fimbres with his arm while L.
      Fimbres was lawfully discharging an official duty and [Perez] knew
      that L. Fimbres was a public servant.

The jury assessed punishment at two years’ confinement and a $7,500 fine and

recommended that Perez be placed on community supervision and that the fine

be suspended. The trial court sentenced Perez accordingly, placing Perez on

community supervision for two years. This appeal followed.

                                    III. Self-Defense

      In his first issue, Perez argues that the trial court erred by denying his

request for a jury instruction on self-defense. The State responds that Perez was

not entitled to a self-defense instruction because self-defense is a confession

and avoidance defense requiring Perez to first admit to the indicted charge,

which the State contends he did not do.

      Penal code section 9.31 states in pertinent part:

      (b) The use of force against another is not justified:

            ....


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              (2) to resist an arrest or search that the actor knows is being
              made by a peace officer . . . even though the arrest or search
              is unlawful, unless the resistance is justified under Subsection
              (c)[.]

              ....

      (c) The use of force to resist an arrest or search is justified:

              (1) if, before the actor offers any resistance, the peace officer
              . . . uses or attempts to use greater force than necessary to
              make the arrest or search; and

              (2) when and to the degree the actor reasonably believes the
              force is immediately necessary to protect himself against the
              peace officer’s . . . use or attempted use of greater force than
              necessary.

Tex. Penal Code Ann. § 9.31(b)(2), (c) (West 2011). ―[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), cert denied, 553 U.S. 1059 (2008).               ―[A] defensive

instruction is only appropriate when the defendant’s defensive evidence

essentially admits to every element of the offence including the culpable mental

state, but interposes the justification to excuse the otherwise criminal conduct.‖

Id. at 659.

      Assuming without deciding that the confession and avoidance doctrine

applies here, we must determine whether Perez ―confessed‖ to the assault

allegation against Officer Fimbres so that he could seek to ―avoid‖ the

consequences thereof through statutory self-defense.


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      Perez testified as follows:

               Q. [Defense counsel] Did Officer Fimbres strike you at one
      point?

               A. Five times.

               Q. What—how did she do that?

               A. With the—with the fist to the face with gloves on.

               Q. How did she get to—how did she get her fist to your face?

            A. While Officer Lord had my back and Officer Chaney had
      my—one of my arms and Lord also had my—my left arm from the
      back, like in—he was holding it back with his arm. Fimbres released
      her—her hold on my legs and she got in an elevated position and—
      and I—I—with hate on her face, like absolute rage that you—you
      see on—you see on people, like a—in scary movies.

               Q. What did she do?

After Perez testified that Officer Fimbres hit him in the eye, Perez gave the

following testimony:

               Q. Okay. Did you do anything to stop her?

             A. Yeah. I—I guess after being hit so many times, I—I was
      starting to—to—to come back into my body and—and I managed to
      get an arm free, and knowing how close and dangerous it was for
      her to hit me on this side of my head.

               Q. What did you do?

           A. I—I reached up and I—I tried to bring her into my chest
      to—to stop the pounding.

             Q. And what—how does the bringing her down to your chest
      stop the pounding?

             A. Well, I mean, if her chest is close to my chest, she can’t
      get that—that momentum going to—to hit—to hit me like a hammer.



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            Q. Were you doing that to keep—to keep her or to hurt her—
      to keep her from hurting you or—

            A. Oh, I thought that I was—I thought that I—If I hadn’t
      already died, that I was dying.

            Q. Did you pull her hair while you were doing that?

             A. It could have gotten—if her hair was pulled, it wasn’t an
      in—an intentional pull. It was the—the act of embracing her and
      bringing her to me.

[Emphasis added.] Perez then testified that he lost consciousness.

      During cross-examination, Perez gave the following testimony:

           Q. Okay. So basically you were just lying there and let them
      do what they wanted to you?

            A. Yes.

            Q. Okay. So you never resisted?

            A. (Witness shakes head side to side).

            ....

            Q. Okay. So when this was going on, you were lying there
      and you were not throwing punches and not swinging your elbow
      and not kicking; you were just lying there and these officers were
      instead doing all these things to you?

            ....

            A. Yes, I was just lying there.

      Officer Fimbres testified that when Perez had pulled her hair and had her

in a choke hold, he had caused her physical pain. With regard to his altercation

with Officer Fimbres, Perez stated that he grabbed the officer, which may or may

not have included her hair, and pulled her to him (his term for this being



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―embrace‖) to prevent her from continuing to hit him, which would cover the

―grabbing and pulling‖ language in the indictment; Officer Fimbres herself

testified to the painful, and hence injurious, consequences of Perez’s actions.2

Therefore, we hold that this satisfies the ―confession‖ requirement of the doctrine,

entitling Perez to an ―avoidance‖ defense based on his version of events.3 We

sustain Perez’s first issue. Because our holding in the first issue is dispositive,

we need not reach Perez’s remaining two issues.4 See Tex. R. App. P. 47.1.




      2
       Officer Chaney also testified that he saw Perez put Officer Fimbres in a
choke hold. Officer Brian Lord testified that he saw Perez grab Officer Fimbres
by her hair.
      3
        The State does not argue that Perez did not meet section 9.31’s
requirements, and if Perez’s version of the events were to be believed, he did not
resist before being met with greater force than necessary to make the arrest and
attempting to protect himself by grabbing Officer Fimbres and pulling her to his
chest. Officer Fimbres testified that she tased Perez two or three times. Officer
Lord testified that he tased Perez four or five times before escalating to using his
fist. Officer Fimbres and Officer Lord both testified that the situation was ―a
deadly force‖ situation. During cross-examination, Officer Fimbres denied that
Perez had been tased twenty-six times but agreed that if he had been, it would
have been excessive force. During the defense’s case, Perez’s mother testified
that she counted twenty-six taser burns on her son’s body; she had
photographed the burns and Perez’s other injuries, and photographs of Perez’s
wounds were admitted into evidence. Perez’s father testified that the taser burns
were all over Perez’s body.
      4
        Perez’s remaining two issues are whether a lesser included offense
instruction of resisting arrest should have been given and whether it was error to
exclude the audio portion of a videotape of testimony of one of the witnesses.


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                                   IV. Conclusion

      Having sustained Perez’s first issue, we reverse the trial court’s judgment

and remand this case for further proceedings in conformance with this opinion.




                                                 BOB MCCOY
                                                 JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.

LIVINGSTON, C.J., filed a concurring opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 25, 2013




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