No. 05-05-01420-CR
Opinion Filed July 5, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law, Rockwall County, Texas, Trial Court Cause No. CR05-0732. Reverse and Remand.
Before Chief Justice THOMAS and Justices MORRIS and MALONEY.
The Honorable Frances Maloney, Retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
Opinion By Justice MALONEY.
The jury convicted Brenda Pitts Bennett of assault and assessed a forty-five day confinement in the Rockwall County Jail and a fine of $1000. The jury recommended that the trial court suspend the jail time and fine and place appellant on community supervision. The trial court followed the jury's recommendation, suspended appellant's jail sentence and fine, and placed appellant on community supervision for one year. In one issue, appellant complains the trial court should have submitted a jury instruction on defense of a third person and defense of property. We reverse the trial court's judgment and remand for further proceedings.
Background
Sharon Fields (the complainant) came to appellant's house to remove a truck that her estranged husband, Michael Fields (Fields), had parked in appellant's garage. Because the complainant was too large to fit between the garage and the truck, she called a tow truck to remove the truck from the garage. Fields and Chanda Bennett (Bennett), appellant's daughter, confronted the complainant and an altercation ensued. Appellant did not become involved until Bennet solicited appellant's help. Should the Trial Court Have Submitted a Justification Instruction to the Jury?
In one issue, appellant argues the evidence clearly raised an issue on appellant's right to defend (1) Fields from the complainant's use or attempted use of force and (2) her property against the complainant's trespass and interference with property in appellant's possession. The State responds that appellant not only did not admit assault but also denied the alleged conduct. Additionally, the State maintains that "at the time of the altercation[,] . . . appellant was in her house taking a bath." Further, the State contends, even if we find charge error, appellant did not object and, therefore, must show egregious harm. 1. Standard of Review
When reviewing jury charge error, we must first determine if error actually exists in the jury charge and, if we find error, did it harmed appellant. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g). If appellant objected, we reverse if we find any actual harm, regardless of the degree. Anderson v. State, 11 S.W.3d 369, 374 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). In assessing actual harm, we must examine the harm "in light of the entire jury charge; the state of the evidence, including the contested issues and weight of probative evidence; the argument of counsel; and any other information revealed by the record of the trial as a whole." Frost v. State, 25 S.W.3d 395, 400 (Tex.App.-Austin 2000, no pet.) (citing Alamanza, 686 S.W.2d at 171). If appellant does not object to the jury charge at trial, she must show she suffered actual, egregious harm. Almanza, 686 S.W.2d at 171. For charge error to result in egregious harm, it must affect "the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory." Ngo v. State, 175 S.W.3d 738, 750 (Tex.Crim.App. 2005). To establish egregious harm, it is not essential to show direct evidence of harm. See Stokes v. State, 74 S.W.3d 48, 50 (Tex.App.-Texarkana 2002, pet. ref'd). We review the record to determine if a defendant suffered actual, not theoretical, harm. See Morris v. State, 67 S.W.3d 257, 261 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd) (citing Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994)). 2. Applicable Law
Justification is a statutorily defined defense. Tex. Pen. Code Ann. §§ 9.31, 9.33 (Vernon 2003). Self-defense is a justification for one's acts, which requires admission that the conduct occurred. See Young v. State, 991 S.W.2d 835, 838 (Tex.Crim.App. 1999). First, appellant must admit the offense and then offer self-defense as justification. See id. at 839 (holding appellant not entitled to instruction on necessity if she argues she did not commit offense). However, a defendant may sometimes be entitled to an instruction on justification without admitting the offense. See Golden v. State, 851 S.W.2d 291, 295 (Tex.Crim.App. 1993); Willis v. State, 790 S.W.2d 307, 314 (Tex.Crim.App. 1990). The facts must exonerate the defendant, not simply disprove an element of the offense. See Ex parte Nailor, 149 S.W.3d 125, 133 n. 33 (Tex.Crim.App. 2004). Generally, however, if a defendant denies all participation in the offense, he has not raised a defense. See Willis, 790 S.W.2d at 313-14. A defendant has the right to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may believe about the credibility of the defense. Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App. 1996). We review evidence submitted in support of the defense in the light most favorable to the defendant. See id. 3. The Evidence a. Jeffrey Moseley
Moseley, a Royce City police officer, testified that he and another officer, Tim West, responded to a disturbance call at appellant's residence. When they arrived, Moseley saw the complainant on the ground by her vehicle. The driver's door was open and appellant, Bennett, and Fields were kicking and hitting the complainant. The officers separated the four individuals, handcuffed each of them, and placed them in the patrol cars. Appellant told the officers that she was defending Fields's property, the truck. On cross-examination, Moseley testified that the complainant told him she had come to retrieve the truck because she needed transportation. Moseley explained that Fields was holding the complainant down. The complainant, Fields, and Bennett had injuries. The complainant told Moseley that she had bitten Fields while defending herself. The police filed assault charges against appellant, Fields, and Bennett and a trespassing charge against the complainant. Moseley also testified that the complainant had previously been arrested for trespassing on the appellant's property. b. Tim West
West, a Royce City police investigator, testified he was the second officer to arrive at the scene. He saw Moseley get out of his patrol car and run up to the house. One "female" was on her back and Bennett was on top of the downed female. Although he saw Bennett hit the complainant, he never saw appellant hit the complainant. Everyone except appellant appeared to have scratches, lacerations, and stretched clothing. The complainant had come to get the truck, which she believed belonged to her. She was too large to fit between the garage door and the truck, so she called a tow truck to pull the truck out of the garage. Appellant, Fields, and Chanda "came running" because they thought the complainant was stealing the truck. c. Jeffrey Scott Stapleton
Stapleton and Jim Baker, Royce City police officers, arrived at the scene after Moseley and West. By the time they arrived, everyone had been separated. Bennett was handcuffed and was screaming, cussing, and yelling at the officers. Stapleton had seen the complainant two or three days earlier. She wanted to go to appellant's house and take the truck. The complainant told Stapleton that her husband was dating Bennett and living at her house. Stapleton told the complainant that if the truck was in her name and parked "outside the residence . . she had as much right to the vehicle as her husband." d. Brian Gene Arnold
Arnold, the tow truck driver, testified that the complainant called and told the office that her husband had parked the truck too close to another truck. She could not get it out, so she asked them to come and pull it out of the garage. The complainant gave Arnold the keys and he was able to get into the garage and back the truck out. As soon as he pulled the truck out, a man and woman came out of the house. The woman, Bennett, began to argue with the complainant. He heard someone say, "What are you doing here?" That is when he left. As he left, he saw the police entering the subdivision. His dispatcher told him to return to the house. When he got back to the scene, the police had already handcuffed appellant. e. Nicole Napoliello Coos
Coos, a friend of the complainant, drove the complainant to pick up the truck in question. They drove around for a while and the complainant called the Rockwall and Royce City Police to ask for permission to get the truck. The police gave her permission. But, when they got to the house, the complainant could not fit into the garage, so she called the tow truck. They waited three hours for the tow truck to arrive. When Fields came out of the house, the complainant told him "it was a repo guy" because he had not made the truck payment. Fields went back in the house and the complainant started to get into the truck. Appellant and Bennett came out of the house and appellant attacked the complainant. Eventually, Fields, Bennett, and appellant all attacked the complainant. On cross-examination, Coos admitted the complainant had told her that Fields had several wrecks in the truck and "had not paid and the truck company was looking for the truck." The complainant had her own car and did not need the truck for transportation. Coos also conceded that if the complainant told the police she needed the truck for transportation, she "was incorrect." And when the complainant told Fields the car was being "repo'd," that was not true. Coos took "four or five" pictures at the scene with her digital camera. Two were admitted into evidence, neither of which showed appellant involved in the altercation. Rather, appellant was "on the phone." Additionally, Coos conceded she telephoned the police and told them "two people, a man and a woman were . . fighting." f. Michael Fields
Fields testified that he and the complainant had reconciled about a month before the trial and were trying to work things out. However, on the date of the altercation, he and Bennett had been living together for about a month. They were in the bedroom when he heard the tow truck pull up. He went outside and saw the complainant's truck "parked out front." Fields went back into the house and told Bennett that "they were towing my truck." Bennett jumped up and ran outside. When Fields got outside, he hit the complainant to get her off of Bennett. He tried to get into the truck to drive it away, but the complainant got in the truck and they fought over the keys. It was then that appellant appeared and hit the complainant in the back. Fields got out of the truck while Bennett and the complainant were still fighting. On cross-examination, Fields admitted that until he reconciled with the complainant, he had never told anyone appellant had hit the complainant, even though he had been in jail and pleaded guilty to assault. Fields also conceded that up until he had reconciled with the complainant, he had remained in contact with Bennett and told her he loved her. As soon as he was released from jail, he returned to Bennett's home, but only to get his truck. But, he later admitted that he also took Bennett's clothes, purse, and a credit card. Fields left the key to the house under the "swan" on the front porch. g. The Complainant
The complainant testified the truck was in her and Fields's names and he had not kept the payments current or carried insurance. Ford Motor Credit told her that if Fields did not insure the truck, they would come after her because the truck was in both their names. Before she went to appellant's house to get the truck, the complainant contacted the Rockwall County Sheriff's Department and "explained things" to them. She also notified the Royce City Police Department because the Sheriff told her to let them know "in case there was [sic] any problems." The police said she could get her vehicle as long as she didn't destroy any of the other parties' things. The complainant thought she could not get the truck out of the garage, so she called the tow truck. Fields came out and had words with the tow truck driver. When Bennett came out, the complainant tried to get away because of the things Bennett said. Bennett pulled the complainant back and Fields and Bennett both began hitting the complainant. In the beginning, appellant came out of the house a couple of times and said some things, but never came near the complainant. Bennett went into the house and the complainant tried to get into the truck to leave. It was then that appellant came out of the house and pulled the complainant out of the truck by her hair. Although appellant hit her on the back of her head with something and began to kick her, Fields and Bennett were the most involved. However, the complainant "did not remember telling the police" that only Fields and Chanda assaulted her. h. Chanda Bennett
Bennett testified that she was in bed when Fields came in crying and told her that the complainant was trying to take his truck away. Appellant was taking a bath when Bennett told her about what was happening. They heard Fields scream. Appellant got out of the bath, telephone the police, and then went outside. Fields was behind the truck's wheel trying to drive the truck away. The complainant was leaning over Fields and biting him. Because of the complainant's size, it took both Bennett and appellant to pull her off Fields. That was the only physical contact appellant had with the complainant; appellant never hit or kick the complainant. i. Appellant
Appellant testified that she had known the complainant and Fields since he was seven, appellant's son and Fields were in school together. When Fields and Bennett started dating, Fields had said he was divorced. She first learned that Fields and the complainant were still married when the complainant began telephoning and coming by appellant's house almost every day. Appellant got out of the bathtub when Bennett came running into the bathroom with blood dripping off her. Appellant saw the complainant on top of Fields, biting him. Appellant admitted that she and Bennett pulled the complainant off Fields. After appellant forcibly removed the complainant from Fields and laid her down on the ground, appellant went back to her porch and telephoned 911. Appellant was still on the telephone when the police arrived. 4. Analysis
We turn now to the State's claim that appellant's denial of any assault during the trial precludes her from a justification jury instruction and her failure to preserve error. After preparing the jury charge, the trial court ask if either side had any objections to the charge. Appellant objected to the trial court's not including a justification defense instruction in the jury charge and requested the court include self-defense "as it relates to this case." Although the trial objection and request were not as specific as he argues in his appellate brief, we conclude they were sufficient to place the trial court on notice of his complaint. We, therefore, conclude that if we find error, we will look for some harm. See Almanza, 686 S.W.2d at 171. The record shows that appellant denied the information's allegations that she hit or kicked the complainant. But, she did admit grabbing the complainant and pulling her off of Fields. Fields's screams got appellant out of the bathtub and took her outside to where she saw the complainant on top of Fields, biting him. Fields and Bennett were both bleeding. Bennett confirmed appellant's description of those events and added that it took both her and appellant to pull the complaint off of Fields. Additionally, Bennett acknowledged her use of force and appellant's participation in the assault. Our review of the above evidence warrants the submission of an issue of defense of a third person to the jury. We now turn to whether appellant suffered harm because of this error. When appellant preserves the complained-of error, as here, we reverse only if the error caused "some" harm to appellant. Ovalle v. State, 13 S.W.3d 774, 786 (Tex.Crim.App. 2000). A justification charge benefits the defendant in that it allows the jury to excuse appellant's conduct. By completely excluding any defensive charge, the jury was not allowed to take into account the complainant's acts in determining whether appellant was justified in her acts. See Sparks v. State, 177 S.W.3d 127, 135-36 (Tex.App.-Houston [1st Dist.] 2005, no pet.). Once appellant produced sufficient evidence to raise a defense, the State was required to disprove this defense beyond a reasonable doubt. See Boget v. State, 40 S.W.3d 624, 626 (Tex.App.-San Antonio 2001), aff'd, 74 S.W.3d 23 (Tex.Crim.App. 2002). The trial court's error in not charging the jury on justification denied the jury the option of an alternative to a guilty verdict-considering whether Texas law justified appellant's conduct. This denial resulted in some harm to appellant. We resolve appellant's issue regarding the defense of person instruction in his favor. In light of our disposition, we need not address appellant's other claim of defense of property. We reverse the trial court's judgment and remand this cause to the trial court for further proceedings consistent with this opinion.