                                      NO. 07-11-0093-CR

                                IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                            PANEL C

                                     NOVEMBER 13, 2012

                            ______________________________


                          SALVADOR RODRIGUEZ, APPELLANT

                                                   V.

                            THE STATE OF TEXAS, APPELLEE


                          _________________________________

               FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;

                 NO. 8664; HONORABLE PHIL VANDERPOOL, JUDGE

                           _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                  MEMORANDUM OPINION


       Following a plea of not guilty, Appellant, Salvador Rodriguez, was convicted of

aggravated assault causing serious bodily injury, 1 and sentenced to twenty years

confinement. The trial court’s judgment includes special findings ordering Appellant to

pay restitution to the victim and court-appointed attorney’s fees. Appellant challenges


1
TEX. PENAL CODE ANN. § 22.02(a)(1) (W EST 2011).
his conviction and the special findings by four issues. By his first issue, he contends the

trial court erred in refusing to give a requested defensive instruction. By his second

issue, he challenges the sufficiency of the evidence to support the order of restitution.

By issues three and four, he questions the sufficiency of the evidence to support the

order to pay court-appointed attorney’s fees and alternatively, questions how the

attorney’s fees were calculated. We reverse and remand.


                                   BACKGROUND FACTS


      On the night of June 30, 2010, the victim, Carl Cady, drove to Appellant’s

residence to retrieve a purse belonging to his girlfriend which he claimed she had left

there when she visited earlier that night.       Other visitors that night included two of

Appellant’s nephews and one of their friends.


      When Cady arrived at the residence, he proceeded toward the porch where he

was met by Appellant and his brother, Rudy Rodriguez. At the time, the two nephews

and their friend remained inside. Cady explained why he was there and was told the

purse was not there and he was asked to leave. Cady did not retreat and a fight

ultimately ensued between him, Appellant and Rudy. During that fight, Cady sustained

serious injuries to his face and head. After the fight, Cady walked across the street

while Appellant and the others got into his nephews’ friend’s car and started to drive

away. When they observed officers arriving, they pulled back into the driveway and

remained at the scene.



                                             2
      The officers observed a very bloody Cady and called for an ambulance to take

him to the emergency room. They also observed blood stains in the yard and street.

After the officers conducted interviews and investigated the scene, Appellant and Rudy

were arrested and charged with aggravated assault causing serious bodily injury. The

case was tried to a jury under a law-of-parties theory. Appellant was convicted and the

trial court assessed punishment.


                                            ANALYSIS


      Distilling Appellant’s first issue, he asserts the trial court improperly denied his

request for a jury instruction on defense of property pursuant to section 9.42 of the

Texas Penal Code. 2 Because the State argues the issue is waived and thus requires

egregious error for reversal, 3 we first address whether Appellant’s complaint was

preserved for review.


      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).              To preserve possible error for

appellate review, the defendant must sufficiently identify the defensive theory for which

he seeks an instruction. Id. at 640.




2
TEX. PENAL CODE ANN. § 9.42 (W EST 2011).
3
See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984).
                                                 3
       “Magic words” are not required to preserve a complaint for review, Bennett v.

State, 235 S.W.3d 241, 243 (Tex.Crim.App. 2007), and a request for a particular

instruction need not be perfect. Williams v. State, 630 S.W.2d 640, 643 (Tex.Crim.App.

1982). However, the substance of the complaint must be adequate to convey to the trial

court a clear understanding of the particular subject of the requested instruction.

Rogers, 105 S.W.3d at 640 n.34. A trial judge is not required to mull over all the

evidence introduced at trial to determine whether a defendant’s request for a jury

instruction means more than it says. Bennett, 235 S.W.3d at 243.


       A defendant is entitled to an instruction on every defensive issue raised

regardless of whether the evidence is strong, feeble, unimpeached or contradicted, and

even when the trial court thinks that the testimony is not worthy of belief. Walters v.

State, 247 S.W.3d 204, 209 (Tex.Crim.App. 2007). 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).           We review the denial of a requested

defensive instruction in the light most favorable to the defendant. Bufkin v. State, 207

S.W.3d 779, 782 (Tex.Crim.App. 2006).


       A trial court’s decision not to include a defensive instruction in a jury charge is

reviewed for abuse of discretion. See Love v. State, 199 S.W.3d 447, 455 (Tex.App.—

Houston [1st Dist.] 2006, pet. ref’d). A trial court does not abuse its discretion when its

decision is within the zone of reasonable disagreement.           See Casey v. State, 215

S.W.3d 870, 879 (Tex.Crim.App. 2007). When a defensive theory is raised by the


                                              4
evidence from any source and a charge is properly requested, it must be submitted to

the jury. Shaw v. State, 243 S.W.3d 647, 662 (Tex.Crim.App. 2007).


       Here, Appellant tried his case on a theory of defense of property. He testified

that prior to the physical altercation, Cady was charging at the residence, yelling in a

belligerent manner. According to Appellant, he and Rudy both asked Cady to leave and

Rudy stepped in front of Cady. When Cady physically proceeded around Rudy4 and

towards the door, punches were exchanged. While Appellant admitted striking Cady

once behind the ear, other witnesses testified that most of Cady’s injuries were inflicted

by Rudy.


       During Appellant’s case-in-chief, his nephew, Joe Jacob, testified that Cady was

coming up the sidewalk of the residence.                The nephew’s friend, Paul Rodriguez, 5

testified more than once that Cady was angry and kept trying to enter the residence.

On one occasion he testified, “[h]e kept trying to go in the house and they kept telling

him to leave and he wouldn’t leave and he kept trying to go in.” Appellant’s other

nephew, Rudy, Jr., when asked if Cady came into the house, answered, “[n]o, he tried

. . . like he went towards the door.” Rudy further testified, “[Cady] said he was going to

come in the house because he wanted a purse or something.”


       During the charge conference, defense counsel presented a written motion

tracking the statutory language of section 9.42 on use of deadly force to protect

property. Counsel requested a jury instruction on “defense of a habitation and the
4
Evidence was presented that Cady “charged [Rudy] and tried to rip off his shirt.”
5
Although the witness has the same surname as Appellant, he is not related to him.
                                                    5
defense of property specifically with the use of deadly force.” The State countered

arguing there was no evidence supporting imminent commission of the offenses

enumerated in section 9.42 of arson, burglary, robbery, aggravated robbery, theft during

the nighttime or criminal mischief during the nighttime. Defense counsel responded as

follows:


       Your Honor, there just has to be a minimum amount of evidence to be
       able to instruct the jury. In this case there’s been some evidence that Mr.
       Cady was angry, that he was acting in a volatile manner. He was going
       into that house even though my client didn’t – had told him not to.
       Specifically, Your Honor, we didn’t know what his frame of mind was, we
       didn’t know exactly what he was going to do in there.

The trial court denied the requested instruction.


       The record reflects that Appellant’s case-in-chief was neither complex nor

lengthy and that the trial court had just heard testimony from Appellant and defense

witnesses that Cady was aggressively attempting to enter the Appellant’s residence

without consent. Defense counsel’s argument in support of the requested instruction for

defense of property was adequate to convey to the trial court a clear understanding of

the particular subject of the instruction. Rogers, 105 S.W.3d at 640 n.34. Defense

counsel gave the trial court specific reasons why he believed Appellant was entitled to

an instruction on defense of property.      The trial court was not “sandbagged” with

objections he did not understand.       See Mays v. State, 318 S.W.3d 368, 384-85

(Tex.Crim.App. 2010).      Accordingly, we conclude the requested instruction was

preserved for review.



                                             6
       We now turn to the merits of Appellant’s complaint that the trial court abused its

discretion in refusing to instruct the jury on use of deadly force to defend property.

Appellant, his two nephews and their friend, testified that Cady was attempting to enter

Appellant’s residence without consent, that his stated purpose was to take property

(albeit property he claimed did not belong to the occupants), and that he was doing so

in an aggressive or assaultive manner. Certainly such conduct could have constituted

the “imminent” commission of one or more of the section 9.42 enumerated offenses.

Regardless of the source of the evidence and whether that evidence is strong, feeble,

unimpeached, contradicted, or not worthy of belief, a defensive issue was raised and

the trial court should have instructed the jury accordingly. Viewing the evidence in the

light most favorable to Appellant, we hold the trial court abused its discretion in refusing

to give a section 9.42 defensive instruction in the jury charge.


      Finding error in the court's charge begins, rather than ends, our inquiry. Almanza

v. State, 686 S.W.2d 157, 174 (Tex.Crim.App. 1984) (op. on reh'g). If error exists, we

must then analyze the error for harm.            Ngo v. State, 175 S.W.3d 738, 743

(Tex.Crim.App. 2005). When, as here, error in the charge is preserved for review,

reversal is required if the error caused “some” harm, i.e., was calculated to injure the

rights of the defendant. Almanza, 686 S.W.2d at 171.


       The trial court’s refusal to give the jury a defensive instruction deprived Appellant

of the ability to present a defense and argue that defense to the jury. He was entitled to

have the jury rule on his claim of defense of property.        By refusing the requested

instruction, the trial court removed any opportunity for the jury to decide the relative
                                           7
credibility of the evidence or the merits of the defense. See Miller, 815 S.W.2d at 585.

Accordingly, we conclude Appellant suffered “some” harm from the trial court’s

erroneous refusal to give the instruction. Issue one is sustained.


                                      CONCLUSION


      Having sustained Appellant’s first issue, we pretermit issues two, three and four.

TEX. R. APP. P. 47.1. Accordingly, the trial court’s judgment is reversed and the cause is

remanded for a new trial consistent with this opinion.



                                                Patrick A. Pirtle
                                                    Justice


Do not publish.




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