                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                §
 ROBERTO CASTILLO,                                              No. 08-11-00142-CR
                                                §
                        Appellant,                                  Appeal from
                                                §
 v.                                                          County Court at Law No. 4
                                                §
 THE STATE OF TEXAS,                                          of El Paso County, Texas
                                                §
                        Appellee.                               (TC # 20100C03071)
                                                §


                                          OPINION

       Roberto Castillo appeals from his conviction for the misdemeanor offense of assault

causing bodily injury--family violence. On appeal, Appellant complains of the trial court’s

refusal to submit a jury instruction as to defense of property. See TEX.PENAL CODE ANN. §§

9.02, 9.41(a), (b)(West 2011)(providing that protection of one’s own property as a justification

defense to prosecution for assault). For the reasons that follow, we affirm.

                                 FACTUAL BACKGROUND

       Appellant was charged by information with the misdemeanor offense of assault causing

bodily injury - family violence. Specifically, the information alleged that, on or about November

20, 2009, Appellant intentionally, knowingly, and recklessly caused bodily injury to Karla

Castillo (his spouse) by “squeezing Karla Castillo’s arm with [Appellant’s] hand.”
       At the trial, Ms. Castillo testified regarding the incident giving rise to the charges. On

November 20, 2009, she met Appellant at Wal-Mart because he was to give her some money to

pay bills and purchase diapers for their son. Appellant brought her some diapers but when he

told her that he was unable to give her any money, Ms. Castillo became upset and their

conversation escalated into an argument. At some point during the argument, Ms. Castillo sat in

Appellant’s vehicle. Appellant asked her to get out, but she refused because Appellant had taken

the keys to her vehicle and attached them to his own key ring. Appellant then attempted to drive

off with Ms. Castillo still sitting in his vehicle while the passenger door was open.

       Once Appellant stopped, Ms. Castillo reached over and removed the entire set of keys

from the ignition. Appellant became upset, got out of the vehicle, and walked around to the

passenger side to get the keys. Ms. Castillo was holding the keys in her right hand with a finger

through one of the rings. Appellant started pulling at the keys, trying to remove them from Ms.

Castillo’s finger. Despite the pain, Ms. Castillo resisted. Appellant then grabbed Ms. Castillo’s

arm “and he squeezed it with force.” She asked Appellant to let go because he was hurting her,

but Appellant refused. Ms. Castillo then relented and released the keys.

       Ms. Castillo explained that if Appellant had asked her nicely and offered to drive her

back to her vehicle, she would have handed over his car keys. But he never asked nicely and

instead only yelled before grabbing her arm. Her hand was swollen and she had scratches as

well as a bruise on her arm. Photographs of Ms. Castillo’s injuries were admitted into evidence.

       During the charge conference, defense counsel objected to the jury charge and requested

an instruction regarding defense of property which the trial court denied. The jury found

Appellant guilty as charged. The trial court subsequently sentenced Appellant to serve 365 days




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in the county jail and ordered him to pay a $4,000 fine. The jail sentence and $3,500 of his fine

were probated, and Appellant was placed on community supervision for twelve months.

                                      CHARGE ERROR?

       In his sole issue for review, Appellant contends he was entitled to an instruction on the

justification defense of the use of force to protect one’s own property because the defensive issue

was raised by the evidence.      The State counters that because the instruction addressed a

justification defense, Appellant was required to admit to the charged offense before he could

assert the defense. Alternatively, the State contends the trial court did not err because there was

no evidence showing that Appellant reasonably believed that force was immediately necessary to

recover the property -- a required element of proof of the protection of one’s own property

defense.

                                       Standard of Review

       Appellate review of alleged jury charge error involves a two-step process. Abdnor v.

State, 871 S.W.2d 726, 731 (Tex.Crim.App. 1994); Almanza v. State, 686 S.W.2d 157, 174

(Tex.Crim.App. 1984)(op. on reh’g); See Sakil v. State, 287 S.W.3d 23, 25–26 (Tex.Crim.App.

2009). We must determine whether error occurred. Abdnor, 871 S.W.2d at 732. If so, we must

then analyze whether sufficient harm resulted from the error to require reversal. Ngo v. State,

175 S.W.3d 738, 743 (Tex.Crim.App. 2005). The degree of harm necessary for reversal depends

on whether the appellant properly preserved the error by objection. Id., citing Middleton v. State,

125 S.W.3d 450, 453 (Tex.Crim.App. 2003). Where, as here, error in the charge is preserved for

review, reversal is required if the error caused “some harm.” Almanza, 686 S.W.2d at 171.




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                                     Entitlement to Instruction

       We begin our analysis by determining whether Appellant was entitled to the instruction

on defense of property under Section 9.41(a). While Section 9.41 does address the use of force

to protect one’s own property, Appellant’s reliance on subsection (a) is misplaced. Subsection

(a) applies when an actor in lawful possession of property is using force to prevent another’s

“trespass on the land or unlawful interference with the property.” TEX.PENAL CODE ANN.

§9.41(a). Subsection (b) provides:

       (b) A person unlawfully dispossessed of land or tangible, movable property by
       another is justified in using force against the other when and to the degree the
       actor reasonably believes the force is immediately necessary to reenter the land or
       recover the property if the actor uses the force immediately or in fresh pursuit
       after the dispossession and:

               (1) the actor reasonably believes the other had no claim of right when he
               dispossessed the actor; or

               (2) the other accomplished the dispossession by using force, threat, or
               fraud against the actor.

TEX.PENAL CODE ANN. § 9.41(b). Here, Appellant had already been dispossessed of the car keys

and was attempting to regain possession at the time force was used. Accordingly, subsection (b)

applies. See TEX.PENAL CODE ANN. § 9.41(a), (b); see e.g. Ordonez v. State, No. 14-10-00132-

CR, 2010 WL 5395808, at *3 (Tex.App.--Houston [14th Dist.] December 21, 2010, no pet.)(not

designated for publication)(noting that because “the alleged owner of property already had been

dispossessed of property and was attempting to regain possession at the time force was used, it is

not section 9.41(a) but section 9.41(b) of the Penal Code that applies). In any event, Appellant

was not entitled to the instruction because he did not admit to having committed any of the

physically abusive conduct for which he was charged.




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       A defendant is entitled, upon a timely request, to an instruction on any defensive issue

raised by the evidence, provided that (1) the defendant timely requests an instruction on that

specific theory and (2) the evidence raises that issue. Rogers v. State, 105 S.W.3d 630, 639

(Tex.Crim.App. 2003); see also Shaw v. State, 243 S.W.3d 647, 662 (Tex.Crim.App.

2007)(recognizing the rule that when a defensive theory is raised by the evidence from any

source and a charge is properly requested, it must be submitted to the jury). A defendant is

entitled to such an instruction regardless of whether the evidence supporting the defensive issue

is strong, feeble, unimpeached, or contradicted.         Walters v. State, 247 S.W.3d 204, 209

(Tex.Crim.App. 2007). This is true even when the trial court thinks that the testimony is not

worthy of belief.    Id.; see also Granger v. State, 3 S.W.3d 36, 38 (Tex.Crim.App. 1999)

(reiterating the well-settled rule that a defendant is entitled to an instruction on any defensive

issue raised by the evidence without regard to the strength or credibility of the evidence raising

it). This rule is designed to insure that the jury, not the judge, will decide the relative credibility

of the evidence. Miller v. State, 815 S.W.2d 582, 585 (Tex.Crim.App. 1991).

       However, defense of property is a justification defense. See TEX.PENAL CODE ANN. §

9.02 (providing a defense to criminal responsibility in circumstances where the criminal conduct

is “justified”); § 9.41 (defense of property). “This justification, by definition, does not negate

any element of the offense, including culpable intent; it only excuses what would otherwise

constitute criminal conduct.” Shaw, 243 S.W.3d at 659. Therefore, a defendant is not entitled to

an instruction on a justification defense when he denies committing the conduct with which he is

charged. See Ex parte Nailor, 149 S.W.3d 125, 132-33 (Tex.Crim.App. 2004)(defendant alleged

that he did not strike victim with hand and that her injury was accidental); McGarity v. State, 5

S.W.3d 223, 226-27 (Tex.App.--San Antonio 1999, no pet.)(defendant charged with assault by



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hitting victim in face, but claimed he threw victim on bed but did not hit her). For the defendant

to be entitled to an instruction, there must be some defensive testimony to the effect that the

defensive issue applies. See VanBrackle v. State, 179 S.W.3d 708, 715 (Tex.App.--Austin 2005,

no pet.); see also Maldonado v. State, 902 S.W.2d 708, 712 (Tex.App.--El Paso 1995, no pet.)

(noting that “[o]ne cannot establish that an act is justified without first identifying, or admitting

to the commission of, the predicate act.”).

       Appellant was charged with intentionally, knowingly, or recklessly causing bodily injury

to Ms. Castillo by squeezing her arm. Ms. Castillo testified that Appellant did in fact grab her

arm and squeeze it, causing her arm to bruise. Appellant did not testify. His failure to do so, or

to otherwise admit to the conduct upon which he was charged, prevents him from benefiting

from the defense of property. See Maldonado, 902 S.W.2d at 712 (finding that where Appellant

did not testify or otherwise admit his crimes prevented him from benefitting from the defense of

necessity, a justification defense). Finding no error, we overrule Appellant’s sole point and

affirm the trial court’s judgment.


July 24, 2013
                                      ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.
Antcliff, J., not participating

(Do Not Publish)




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