     TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       444444444444444
                                       NO. 03-00-00405-CR
                                       444444444444444


                              Felipe Monroy-Malagon, Appellant

                                                 v.

                                  The State of Texas, Appellee


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    FROM THE DISTRICT COURT OF LLANO COUNTY, 33RD JUDICIAL DISTRICT
        NO. CR4923, HONORABLE CHARLES J. HEARN, JUDGE PRESIDING
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               Appellant Felipe Monroy-Malagon was indicted on five counts of aggravated assault

on a public servant with a deadly weapon. See Tex. Penal Code § 22.02 (West 1994). The jury

acquitted appellant on four counts and convicted him on the fifth count of aggravated assault upon

Melvin Lawson, a public servant, with a deadly weapon, to wit: a club. The jury assessed

punishment at five years’ probation.


                                         Points of Error

               Appellant advances four points of error. First, appellant contends that the trial

court erred in denying his re-urged motion to suppress evidence immediately prior to the jury’s

deliberations. Second, appellant argues that the trial court erred in refusing his special requested

jury instruction “regarding article 14. 05 and article 38. 23 of the Texas Code of Criminal

Procedure. ” Third, appellant urges that the trial court erred in refusing his special requested jury
instruction “regarding article [sic] 9.31(c) of the Texas Penal Code on self-defense.” Fourth,

appellant asserts that the trial court erred in instructing the jury that the individuals (complainants

in the various counts of the indictment) participating in his arrest were peace officers. We will

affirm the conviction.


                                            Background

               Appellant does not challenge the sufficiency of the evidence to support the

conviction. The facts, however, will be discussed to place the issues in proper perspective. It

appears a boundary dispute arose between appellant, owner of Tract 107, Rio Vista Subdivision,

Unit 3 in Llano County, and Michael Larson, owner of Tract 108. On February 2, 1999, Larson

secured a default judgment (cause no. 11,864) in the 33rd District Court establishing the northern

boundary of Tract 108, an injunction enjoining appellant and his wife from interfering with the

construction of a fence on the northern boundary of Tract 108, and awarding Larson $10,000 in

actual damages and $10,000 in exemplary damages. The judgment reflects that appellant filed no

answer. 1

               All the testimonial evidence about the incident in question came from the State’s

four witnesses. Appellant did not testify or offer any evidence. Lieutenant Jay Bauman, an

investigator with the Llano County Sheriff’s Office, testified that on March 17, 1999, he received

a visit from Michael Larson, who told him that appellant had committed an assault upon Larson

that day as Larson was attempting to construct a fence along the northern boundary line of Tract


       1
          A hearing on a pretrial motion in the instant case reflects that appellant was represented
by an attorney in the civil case, who later withdrew.

                                                  2
108. Investigator Bauman responded by going to the Larson property and having Larson return

to the fence building site and continue work while Bauman hid in some bushes with a video

camera. Larson drove one post into the ground and moved to another position when several

females came out of appellant’s house and began yelling at Larson in Spanish. Bauman then

observed appellant approaching Larson. Bauman saw appellant, who appeared angry, raise a

machete over his head as he approached Larson, yelling at Larson in Spanish. Larson began to

retreat. Bauman was dressed in a green-striped, short-sleeved shirt and blue jeans. His badge was

displayed on his shirt pocket. He pulled his “on duty” side arm and came out of the bushes

yelling “Policia, Policia” and “Alto” (stop) in Spanish, of which he spoke little. Bauman pursued

appellant as appellant left the scene.   In a “dry wash,” several females attempted to block

Bauman’s way, while appellant stood behind the women swinging his machete in a threatening

manner. Larson yelled that someone had a gun. Bauman saw Jorge Monroy, appellant’s son,

pointing a black handgun at him from about fifty feet away. Things came to a standstill until

Bauman picked up the video camera and began filming the scene in front of him. Appellant

moved behind a tree and Jorge Monroy dropped his hand holding the gun and turned away.

Bauman then ran over the hill to his parked patrol vehicle and used his radio to summon

assistance. He moved his vehicle to maintain visual contact with appellant’s residence.

              As a City of Llano officer arrived, a vehicle with two females attempted to leave

appellant’s property. The car was stopped and the women were arrested. Later, Bauman took

a shotgun from his vehicle and with other officers approached the house and took Jorge Monroy,

who was outside the house, into custody. Jorge was unarmed. Bauman saw appellant inside the


                                               3
house at a window shaking a machete at him. Bauman took a hoe and tried unsuccessfully to

break in the front door. He then retrieved a crowbar and hammer from his patrol vehicle and

forced entry through the side door of appellant’s residence. Bauman contended that he was in hot

pursuit of a suspect after the commission of felonies in his presence.

               With his weapon drawn, Bauman entered the house. Inside, he found appellant’s

wife and two small children. Appellant stood about twenty feet away from Bauman in a baseball

batting stance with a cedar club. As the entering officers moved forward, Mrs. Monroy tried to

block their path. The officers side-stepped her and Bauman tackled appellant. Bauman reported

that as he did so, appellant attempted to swing the club at him, but hit Deputy Melvin Lawson on

the arm causing a laceration.

               On cross-examination, Bauman acknowledged that upon his first contact with

Michael Larson, he did not have Larson file a complaint nor did he seek an arrest warrant.

Bauman returned with Larson to the scene to set up a surveillance and gather more evidence, with

the expectation that there might be a further disturbance.

               Bauman admitted that he was a larger man than appellant, and that the other

officers were Bauman’s size or larger; that when appellant was tackled, all four officers eventually

got on top of appellant; and that appellant suffered a broken arm. The machete was found on the

dining room table and a handgun was discovered under a mattress in Jorge Monroy’s bedroom.

               Deputy Sheriff Ted Christopher responded to Bauman’s call for assistance. He

entered the house along with Bauman and corroborated much of Bauman’s testimony. Likewise,




                                                 4
Llano Police Officer James Schilling responded to Bauman’s request for assistance and entered

the house with Bauman. His testimony paralleled that of Bauman.

               Deputy Melvin Lawson, the complainant in the fifth count of the indictment,

testified that as he entered appellant’s house with Bauman, appellant stepped forward and struck

him on the arm with a club as appellant was being tackled by Bauman. Lawson described his

injury as a laceration which “was real bloody and bruised and swollen.” Lawson displayed his

arm to the jury.

               On cross-examination, Lawson acknowledged that later he went to the hospital

where the doctor diagnosed the injury as an abrasion and advised Lawson to take Tylenol if the

injury caused problems. Dr. Sky Forrister of the Llano Hoerster Clinic saw Lawson on March

17, 1999, after the incident in question. The x-rays revealed no broken bones. Dr. Forrister

found an abrasion and not a laceration. A dressing was placed on Lawson’s arm and Tylenol was

recommended for pain.


                                 A Reurged Motion to Suppress

               In his first point of error, appellant contends that the trial court erred in denying

his “motion to suppress evidence obtained as a result of the officers’ illegal, warrantless entry and

search of appellant’s residence as re-urged immediately prior to the jury’s deliberations. ”

               A motion to suppress evidence is strictly a pretrial motion. Tex. Code Crim. Proc.

Ann. art. 28.01, § 1(6) (West 1989). It was not recognized in Texas until it was provided for in

the 1965 Code of Criminal Procedure. Prior to the effective date of the code (January 1, 1966),



                                                 5
a defendant in a criminal case was relegated to an evidentiary trial objection. The hearing of a

pretrial motion to suppress evidence is discretionary with the trial court. Calloway v. State, 743

S.W.2d 645, 649 (Tex. Crim. App. 1988). If no hearing is held, the defendant must raise the

evidentiary issue by a trial objection. Writt v. State, 541 S.W.2d 424, 425 (Tex. Crim. App.

1976).   While strictly a pretrial motion, the term “motion to suppress” is sometimes, but

improperly, used to mean trial objection.

                 In the instant case, appellant filed a pretrial motion to suppress evidence. We are

unable to tell whether the trial court ruled on the motion. After the motions for instructed verdicts

on the various counts were overruled at the guilt/innocence stage of the trial, appellant “reurged”

his motion “to suppress all of the evidence and testimony that occurred after the entry into the

house” by peace officers on the basis of violations of articles 14. 05 and 38.23 of the Code of

Criminal Procedure. Appellant sought to remove from the jury’s consideration any evidence of

any offenses committed by appellant after the officers entered the house. This trial objection was

overruled.

                 In his brief, appellant complains only of this ruling. We are cited solely to trial

testimony in support of his contention that the illegal acts of the officers in entering appellant’s

house called for the withdrawal from the jury of evidence of appellant’s criminal conduct, if any.

The legality of the officers’ entry into the house and the arrest may be irrelevant in certain

circumstances.

                 In Gonzalez v. State, 574 S.W.2d 135, 137 (Tex. Crim. App. 1978), the court,

speaking through Judge Dally, held that a conviction for aggravated assault of a peace officer does


                                                  6
not depend on whether the arrest made by the officer was legal. Gonzalez noted that with the

enactment of section 38.03 of the Penal Code, a person may not lawfully resist an unlawful

arrest, 2 overruling previous case law. See also Montoya v. State, 744 S.W.2d 15, 29 (Tex. Crim.

App. 1987) (police officer is still acting within lawful discharge of his duties when he makes

unlawful arrest so long as he is acting within his capacity as a peace officer). Thus, resisting

arrest is unlawful in Texas and it is no defense to prosecution that the arrest or search was

unlawful. State v. Mayorga, 901 S.W.2d 943, 946 (Tex. Crim. App. 1995); (citing Barnett v.

State, 615 S.W.2d 220, 223 (Tex. Crim. App. 1981), and Ford v. State, 538 S.W.2d 633, 635

(Tex. Crim. App. 1976)).

                 In Salazar v. State, 643 S.W. 2d 953, 956 (Tex. Crim. App. 1983), though

confronting a different issue, the court noted the Gonzalez decision and pointed out that “a

conviction under 22. 02(a)(2) [aggravated assault of a peace officer] does not depend on whether

the arrest was legal, or on the defendant’s belief about its legality. ” Id.

                 In Cooper v. State, 956 S.W.2d 95 (Tex. App.—
                                                             Tyler 1997, pet. ref’d), the court

wrote:


         2
             Section 38.03 provides in pertinent part:

             (a) A person commits an offense if he intentionally prevents or obstructs a
                 person he knows is a peace officer or a person acting in a peace officer’s
                 presence and at his direction from effecting an arrest or search of the
                 actor or another by using force against the peace officer or another.

             (b) It is no defense to prosecution under this section that the arrest or search
                 was unlawful.

Tex. Penal Code Ann. § 38.03(a), (b) (West 1994).

                                                    7
       Likewise, in a case of aggravated assault on a peace officer, as in the instant case,
       the evidence of aggravated assault on the peace officer does not exist at the time
       a lawful or unlawful arrest is attempted. The evidence relating to the crime of
       aggravated assault in this case came into existence only after Officer Lust attempted
       to detain and question Appellant. In authorities such as Gonzalez and Barnett, the
       Court of Criminal Appeals relied on the close connection between the crimes of
       resisting arrest and aggravated assault on a peace officer to dispose of the question
       of the lawfulness of the arrest, and the connection is no less persuasive here. The
       reasoning expressed in Mayorga for the admission of evidence is even more
       applicable to a case such as the instant case, where the resistance of arrest went so
       far as to constitute aggravated assault. We hold that the alleged illegality of the
       arrest was irrelevant to the crime of aggravated assault on a peace officer in this
       case. The evidence of the aggravated assault was not “obtained in violation of the
       law.” The trial court, therefore, did not err in refusing to suppress the evidence
       concerning the aggravated assault.


Id. at 98; see also Mayorga, 901 S.W.2d at 946.

               For the foregoing reasons, we find no merit in appellant’s contention that the trial

court erred in failing to grant his trial objection that would have removed from the jury’s

consideration all evidence of the charged offense. The first point of error is overruled.


                                  Requested Jury Instructions

               In point of error two, appellant contends that the trial court erred in denying his

“special requested instruction” regarding articles 14. 05 and 38.23 of the Texas Code of Criminal

Procedure.

               Our attention is directed simply to “See Supplement to Defendant’s Special

Requested Instructions.” This is not in compliance with our briefing rules. Tex. R. App. P.

38.1(h). Our search reveals documents so entitled in the clerk’s record. Further search shows

that after the jury argument at the guilt/innocence stage of the trial, appellant reduced the special


                                                 8
requested instructions to writing and filed them with the clerk. These requests were overruled.

Such special requested charges are required to be presented in writing to the trial court or dictated

to the court reporter before the reading of the court’s charge to the jury. See Tex. Code Crim.

Proc. Ann. art. 36. 15 (West Supp. 2001). The same is true of any objections to the jury

instructions. See id. art. 36.14. Special requested instructions presented after the charge has been

read to the jury and the jury has retired to deliberate are not timely and may not be considered on

appeal. See Rojas v. State, 662 S.W.2d 466, 469 (Tex. App.—
                                                          Corpus Christi 1983, pet. ref’d).

               If it be appellant’s contention that these requested instructions should be considered

on appeal regardless of their untimely presentation, the matter has not been briefed. See Tex. R.

App. P. 38.1(h). Moreover, in this multifarious point of error, appellant does not brief the

requested instruction concerning article 14.05. Still further, even if the requested instruction on

article 38.23 had been timely presented, the trial court would not have erred in denying the same

under the circumstances presented and discussed in the first point of error and in light of Mayorga,

901 S.W.2d at 946. If evidence is not “obtained” in violation of the law, then its admission into

evidence is not in contravention of article 38.23. Johnson v. State, 871 S.W.2d 744, 751 (Tex.

Crim. App. 1994). The second point of error is overruled.


                                            Self-defense

               In appellant’s third point of error, he claims that the trial court erred in denying his

special requested instruction on self-defense. See Tex. Penal Code Ann. § 9.31(c) (West Supp.

2001). Because appellant did not admit the offense and then offer justification for it, the issue of



                                                  9
self-defense was not raised, and the trial court did not err in denying the instruction requested.

Anderson v. State, 11 S.W.3d 369, 372 (Tex. App.—
                                                Houston [1st Dist. ] 2000, pet. ref’d) (citing

Young v. State, 991 S.W.2d 835, 839 (Tex. Crim. App. 1999)).

               “The defendant has the burden of producing (going forward with) sufficient

evidence to raise the issue of self-defense.” Shelvin v. State, 884 S.W.2d 874, 878 (Tex.

App.—
    Austin 1994, pet. ref’d). The State, however, is not required to affirmatively produce

evidence to refute the self-defense, but only prove its case beyond a reasonable doubt. Id.

Generally, when evidence from any source raises a defensive issue, and the defendant properly

requests a jury instruction on that issue, the trial court must submit the issue. See Muniz v. State,

851 S.W.2d 238, 254 (Tex. Crim. App. 1993). However, under recent case law, to raise the

defensive issue of self-defense, a defendant must admit the committed offense and then offer self-

defense as justification. Anderson, 11 S.W.3d at 372; Young, 991 S.W.2d at 839 (finding

defendant was not entitled to instruction on the defense of necessity because he argued he did not

commit offense).

               This is so because self-defense is inconsistent with a denial of criminal conduct.

Sanders v. State, 707 S.W.2d 78, 81 (Tex. Crim. App. 1986); MacDonald v. State, 761 S.W.2d

56, 60 (Tex. App.—
                 Houston [14th Dist. ] 1988, pet. ref’d). Self-defense is found in Chapter Nine

of the Texas Penal Code entitled “Justification Excluding Criminal Responsibility” which also

includes “necessity” and “public duty.” These defenses have traditionally been recognized as

justification for conduct that would otherwise be criminal.




                                                 10
               In the instant case, appellant entered a plea of not guilty. He did not testify nor did

he offer evidence that he committed the charged offense and acted in self-defense as justification.

We did not find other evidence in the record to raise the issue. The trial court did not err in

refusing the special requested charge. The third point of error is overruled.


                               Jury Instruction on Peace Officer

               Lastly, appellant contends that the trial court erred in instructing the jury that

certain named individuals, including the complainant, were peace officers.

               At the guilt/innocence stage of the trial, the trial court instructed the jury in its

charge, inter alia, that:


       “Peace officer” means a person elected, employed, or appointed as a peace officer
       under art. 212 of the Code of Criminal Procedure, sec. 51.212 or 51. 214 of the
       Education Code, or other law.

       You are instructed that Jay Bauman, Ted Christopher, James Schilling, and Melvin
       Lawson are Peace Officers.


               The first sentence of the instruction is the statutory definition of a “peace officer.”

Tex. Penal Code Ann. § 1.07(a)(36) (West 1994). Appellant timely objected, however, to the

second sentence of the jury instruction that the named individuals, including the complainant in

count five of the indictment, were peace officers.         Appellant objected that the instruction

commented on the weight of the evidence and on an element of the offense, lessened the State’s

burden of proof, and was a violation of due process and due course of law. The objection was

overruled.


                                                 11
               Count five of the indictment under which appellant was convicted alleged that on

or about March 17, 1999, appellant:


       PARAGRAPH A

       did then and there intentionally and knowingly threaten Melvin Lawson with
       imminent bodily injury and did then and there use and exhibit a deadly weapon, to
       wit: a club, during the commission of said assault, and the said Melvin Lawson
       was then and there a public servant to wit: a Llano county Sheriff’s Officer in the
       lawful discharge of an official duty, to wit: arresting Felipe Monroy-Malagon, and
       the said Defendant had been informed and knew Melvin Lawson was a public
       servant,

       PARAGRAPH B

       did then and there intentionally, knowingly and recklessly cause bodily injury to
       Melvin Lawson by striking the arm of Melvin Lawson with a club, and the said
       Defendant did then and there use and exhibit a deadly weapon, to wit: a club,
       during the commission of said assault, and the said Melvin Lawson was then and
       there a public servant in the lawful discharge of an official duty, to wit: arresting
       Felipe Monroy-Malagon, and the said Defendant had been informed and knew
       Melvin Lawson was a public servant,

       And it is further presented that Felipe Monroy-Malagon used and exhibited a
       deadly weapon, to wit: a club, during the commission of and immediate flight from
       said offense.


               “Public servant” is clearly an essential element of the offense charged under the

statute. See Tex. Penal Code Ann. § 22.02(a)(1), (2), (b)(2) (West 1994). The element is clearly

reflected in both paragraphs of count five. In its charge to the jury, the trial court submitted both

paragraphs of count five to the jury. While the jury charge did not set out the statutory definition

of “public servant,” see Tex. Penal Code Ann. § 1.07(a)(41) (West 1994), the charge did give

the statutory definition of “peace officer, ” and designated the complainants, including Melvin


                                                 12
Lawson, as peace officers. Such instruction clearly placed Lawson within the meaning of the

statutory definition of “public servants,” an essential element of the offenses charged in count

five. The jury returned its verdict:


              We, the Jury, find the defendant, Felipe Monroy-Malagon, guilty of
       aggravated assault on a public servant, as charged in the indictment.

                                             Hazel Beard
                                             Foreman of the Jury3


               A trial court may not comment on the weight of the evidence in the jury charge or

instructions. Tex. Code Crim. Proc. Ann. art. 36.14 (West Supp. 2001); Smith v. State, 959

S.W.2d 1, 27 (Tex. App.—
                       Waco 1997, pet. ref’d). A trial court should never give an instruction

which constitutes a comment on the elements of the offense, or assumes a disputed fact. Grady

v. State, 634 S.W.2d 316, 317 (Tex. Crim. App. 1982); Molinar v. State, 910 S.W.2d 572, 584

          El Paso 1995, no pet.); Collins v. State, 800 S.W.2d 267, 269 (Tex. App.—
(Tex. App.—                                                                       Houston

[14th Dist.] 1990, no pet.). Such action is impermissible. Davis v. State, 955 S.W.2d 340, 351

          Fort Worth 1997, pet ref’d); cf. Atkinson v. State, 923 S.W.2d 21, 24-5 (Tex. Crim.
(Tex. App.—

App. 1996). The trial court erred in instructing the jury that Melvin Lawson was a peace officer,

which was tantamount to telling the jury Lawson was a public servant, an essential element of the

offense charged.


       3
           If alternative theories are submitted to the jury and a single, general verdict form is
provided, a verdict of guilty will be upheld against an evidentiary sufficiency attack if there is
sufficient evidence to support the verdict under any one of the theories submitted. Brooks v.
State, 990 S.W.2d 278, 283 (Tex. Crim. App. 1999); Kitchens v. State, 823 S.W.2d 256, 257
(Tex. Crim. App. 1991).

                                               13
                                        Harmless Error

               In reviewing jury charge error, we apply the usual Almanza standard which depends

upon whether appellant preserved the error. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

App. 1984) (op. on reh’g). Where appellant preserved error by timely objection, as in the instant

case, we reverse the conviction if we find any actual harm, regardless of the degree. Abdnor v.

State, 871 S.W.2d 726, 739-40 (Tex. Crim. App. 1994). We assess harm from preserved error

in light of the entire charge, considering (1) the charge itself; (2) the state of the evidence,

including contested issues and the weight of probative evidence; (3) arguments of counsel; and

(4) any other relevant information revealed by the record of the trial as a whole. Almanza, 686

S.W.2d at 171.

               An examination of the jury charge shows that the trial court required the jury to

find beyond a reasonable doubt that each element of the offenses alleged in count five was proven

before the jury could convict. While the trial court did not submit the statutory definition of

“public servant,” as noted earlier, there was no objection to the omission. In exploring the state

of the evidence, we find no contested issue as to whether Lawson was a peace officer. Lawson

identified himself as a deputy sheriff of Llano County with several years of experience. Other

officer-witnesses referred to him as an officer or a deputy in their testimony. No one questioned

his status. Appellant did not testify or offer evidence. The sufficiency of the evidence is not

challenged. The fact that Lawson was a peace officer was not controverted. Considering the

other relevant portions of the record, we do not find any actual harm caused by the trial court’s

jury charge error. Even when the matter is uncontroverted, however, the trial court should


                                               14
proceed with extreme caution in charging in such matters. See Tew v. State, 551 S.W.2d 375,

378 (Tex. Crim. App. 1977). Finding that the error here was harmless under Almanza, the fourth

point of error is overruled.

               The judgment is affirmed.




                                           John F. Onion, Jr. , Justice

Before Chief Justice Aboussie, Justices Patterson and Onion*

Affirmed

Filed: March 29, 2001

Do Not Publish




                                             15
*
    Before John F. Onion, Jr. , Presiding Judge (retired), Court of Criminal Appeals, sitting by
    assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).




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