COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
RUBEN VARGAS, )
) No. 08-03-00291-CR
Appellant, )
) Appeal from the
v. )
) 409th District Court
THE STATE OF TEXAS, )
) of El Paso County, Texas
Appellee. )
) (TC# 20020D06227)
)
O P I N I O N
Appellant, Ruben Vargas, appeals from his conviction of aggravated assault with a deadly weapon. After finding Appellant guilty, the jury assessed punishment at 2 year=s confinement, probated to 2 years= community supervision. In a single issue on appeal, Appellant complains that the trial court committed fundamental error by refusing to charge the jury on the right of
self-defense against multiple assailants. We affirm.
On the night of October 3, 2002, Appellant, his girlfriend, his two nieces, and a friend of his nieces went to a football game at Mountain View High School. After the game, Appellant and his girlfriend were walking towards their vehicle when he noticed five individuals, whom they had passed by, trailing behind them. Appellant became suspicious and fearing that he and his girlfriend were going to get jumped, he pulled out his pocket knife and opened the blade. When he reached his car, as he was going to open the driver=s door, one of the individuals by the name of Cesar De La Torre walked up to the Appellant and told him that Ahe had hit [his] brother, let=s see him try to hit [De La Torre].@ Appellant responded by saying Acome on then.@ Appellant testified that at that point, Mr. De La Torre went towards him with his head down while swinging his arms at the Appellant. Mr. De La Torre=s account alleged that the Appellant swung at him first, missed him and instead hit the car, and then he charged towards the Appellant.
The fight lasted only a few minutes during which the Appellant had Mr. De La Torre in a head lock as Mr. De La Torre continued attempting to hit the Appellant. Appellant threw Mr. De La Torre to the ground, but Mr. De La Torre jumped back up and continued to hit the Appellant. At some point, a school teacher was headed their way and that is when the Appellant let go of Mr. De La Torre. Appellant and his girlfriend drove away in their vehicle; Mr. De La Torre ran away and then his friends picked him up in their vehicle.
While sitting in the vehicle, Mr. De La Torre testified that he felt pain on his back and that when he touched the sore area, he felt his shirt was wet. Once he arrived at his house, Mr. De La Torre=s friend confirmed that he had been stabbed. Mr. De La Torre sought medical help at Thomason Hospital and it was then that Detective Matthew Durning of the El Paso Sheriff=s Department was assigned to the case. On October 8, 2002, Detective Durning was able to contact the Appellant and collect the knife used in this altercation.
Mr. De La Torre testified that he did not know that Appellant had a knife in his hand when he approached him nor did he notice it during the fight. Furthermore, he testified that his sole purpose in attending the football game was to get into a fight with the Appellant and that he initiated contact with the Appellant. Appellant also testified that it was not his intention to stab Mr. De La Torre, but rather that he was hoping once the individuals saw the knife, they would be scared and run off. Furthermore, he testified that it was not until he was inside his vehicle and saw blood on his hands that he realized he had stabbed Mr. De La Torre.
Appellant was indicted for committing aggravated assault with a deadly weapon. Before his trial, he elected for the jury to assess his punishment and entered an application for probation of sentence. After a jury trial, Appellant was found guilty of aggravated assault as alleged in the indictment. The jury assessed a punishment of two years= confinement, probated to two years= community supervision.Appellant now timely files this appeal.
In his single issue on appeal, Appellant complains that the trial court erred in refusing to instruct the jury on the law of self-defense against multiple assailants. The State contends that the Appellant has not preserved this issue for review. Having reviewed the entire record, we must agree with the State=s contentions.
Under Tex.Code Crim.Proc.Ann. art. 36.14 (Vernon Supp. 2004-05), a defendant is required to object and obtain an adverse ruling to preserve any complain on appeal about Aerrors claimed to have been committed in the charge, as well as errors claimed to have been committed by omissions therefrom or in failing to charge upon issues arising from the facts . . . .@ A trial court has no duty to sua sponte instruct the jury on a defensive issue, even if raised by the evidence. Posey v. State, 966 S.W.2d 57, 61-4 (Tex.Crim.App. 1998). Where the trial court is not requested to included a defensive issue in the court=s charge to the jury and omits the instruction, the defendant cannot complain for the first time on appeal. Id. Defense against multiple assailants being a defensive issue, absent a request, the trial court=s failure to include it in the charge is not error. See Frank v. State, 688 S.W.2d 863, 868 (Tex.Crim.App. 1985), (treating self-defense against multiple assailants as a defensive issue).
In this case, at the jury charge conference, Appellant=s trial counsel objected to the charge on the grounds that it was silent regarding Appellant=s right to self-defense. Specifically, Appellant=s counsel requested for a jury instruction regarding self-defense pursuant to Tex.Pen.Code Ann. ' 9.31 (Vernon 2003) and to a deadly force instruction pursuant to Tex.Pen.Code Ann. ' 9.32 (Vernon 2003).[1] The trial court overruled Appellant=s requested instructions and submitted a jury charge without a self-defense instruction. Appellant=s counsel never mentioned or requested an instruction of self-defense against multiple assailants. Raising the issue for the time on appeal, Appellant has failed to preserve the issue for our review. See Posey, 966 S.W.2d at 61-4. We must therefore overrule Appellant=s Issue One and affirm the trial court=s judgment.
December 16, 2004
DAVID WELLINGTON CHEW, Justice
Before Panel No. 2
Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish)
[1] Appellant=s counsel made the following request:
The Defendant, Ruben Vargas, would further submit to the Court that the following instruction -- would further request of the Court that the following instruction be granted by the Court and placed in the charge, that being, to wit, upon the law of self-defense, you are instructed that a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other person=s use or attempted use of unlawful force.
A person is justified in using force against another if he would be justified in using force against another in the first place, as set out above, and when he reasonably believes that such deadly force is immediately necessary to protect himself against the other person=s use or attempted use of unlawful deadly force, and if a reasonable person in the Defendant=s situation would not have retreated.
The Defendant would further request that the charge would also state that unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, or, you further believe from the evidence that at the time he did so, the Defendant reasonably believed that the -- that Cesar De La Torre was then and there committing or attempting to commit aggravated assault, and to prevent the imminent commission of such aggravated assault upon his person, and that a reasonable person in the Defendant=s situation would not have retreated, then you will find the Defendant not guilty and you shall acquit the Defendant, Ruben Vargas, of aggravated assault with a deadly weapon.