NO. 12-02-00264-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CHARLES EDGAR BOZEMAN,§ APPEAL FROM THE
APPELLANT
V.§ COUNTY COURT AT LAW
THE STATE OF TEXAS,
APPELLEE§ HOUSTON COUNTY, TEXAS
MEMORANDUM OPINION
Charles Edgar Bozeman ("Appellant") appeals his conviction for assault, for which he was sentenced to confinement for six months and fined one thousand dollars. Appellant's sentence was suspended for two years. Appellant raises one issue on appeal. We reverse and remand the matter for a new trial.
Background
On November 21, 2001, Appellant and his adult son, Charles Aaron Bozeman ("Aaron") got into an argument over a bank account set up for Aaron's school expenses. During the argument, Appellant punched Aaron twice in the face. Appellant was charged with assault (1) and the matter proceeded to trial.
Both Aaron and Appellant testified at Appellant's trial. Aaron testified that he made no move toward Appellant when Appellant suddenly punched him. Appellant testified that Aaron was standing at the rear of a car, while Appellant was standing near the rear door. Appellant stated that Aaron "came up" to within arm's reach of him, and Appellant reacted by hitting Aaron in the nose. Appellant further testified about the circumstances surrounding the confrontation as follows:
- Okay. Did you think he was going to hit you?
- I sure did.
- Were you scared?
A. Fear wasn't an issue at that point. It was just a reflex reaction. I was not going to be hit, but the argument was at a level that that was possible.
....
Q. At that point that - - I believe you testified that at the first blow you felt like it was necessary to stop him from hitting you?
A. That's correct.
....
Q. You think people are - - should be responsible for reflex reactions regardless of a situation?
A. I believe someone has a right to defend themselves.
Q. Yes. And - - and you felt at that time that you were in eminent danger from this child; correct?
A. Absolutely.
....
Q. Now, could you stand up and tell the jury again if you will exactly what he said to you when you felt that he was going to maybe, what, cause you bodily - - serious bodily injury or death?
- It's not what he said to me that was the reason I defended myself. It was his gesture.
....
Q. Aaron today is a grown man?
A. He is. Yes, he is.
Q. And he's stronger than you?
A. Sure.
Q. You found that out the day before?
A. That's right. (2)
Appellant also testified that Aaron had hit him prior to the incident in question. Moreover, Appellant engaged in demonstrations, the substance of which, given the lack of accompanying testimony, cannot be recounted in this opinion.
Following the close of evidence, Appellant requested an instruction in the court's charge on self-defense. The trial court denied Appellant's request. Ultimately, the jury found Appellant guilty as charged and Appellant was sentenced to confinement for six months and fined one thousand dollars. Appellant's sentence was suspended for two years.
Self-Defense Instruction
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's use or attempted use of unlawful force. Tex. Pen. Code Ann. § 9.31(a) (Vernon Supp. 2003). The defendant has the initial burden of producing some evidence to justify submission of a self-defense instruction. See Tidmore v. State, 976 S.W.2d 724, 729 (Tex. App.-Tyler 1998, pet. ref'd). The trial court must give a jury instruction on a defensive theory raised by the evidence regardless of whether such evidence is strong, feeble, impeached, or contradicted, and even if the trial court is of the opinion that the testimony is not entitled to belief. See Castaneda v. State, 28 S.W.3d 216, 224 (Tex. App.-El Paso 2000, pet. ref'd) (citing Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997)). If the issue is raised by any party, refusal to submit the requested instruction is an abuse of discretion. See Castaneda, 28 S.W.3d at 224. However, where the evidence fails to raise a defensive issue, the trial court commits no error in refusing such a request. Id. We review the evidence in a light most favorable to the defendant. See Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001).
Appellant argues on appeal that his testimony alone was sufficient to support the submission of a charge on self-defense to the jury. (3) From Appellant's testimony, we can determine that (1) Appellant and Aaron were engaged in an argument that escalated, (2) Aaron "came up" to within arm's reach of Appellant, (3) Appellant believed Aaron was going to hit him, (4) Appellant struck Aaron because he believed it was necessary to stop Aaron from hitting him, (5) Appellant believed, at that time, because of Aaron's gesture, that he was in eminent danger, (6) Appellant believed that Aaron was stronger than he was, and (7) Aaron had struck Appellant in the past. The State argues that Appellant's testimony that "[f]ear wasn't an issue "and that "[he] was not going to be hit" demonstrates that Appellant was not entitled to a self-defense instruction.
We iterate that the trial court must give a jury instruction on a defensive theory raised by the evidence regardless of whether such evidence is strong, feeble, impeached, or contradicted, and even if the trial court is of the opinion that the testimony is not entitled to belief. See Castaneda, 28 S.W.3d at 224. While Appellant's testimony is certainly contradicted by Aaron's testimony and, as the State notes, impeached by his own statement that "[he] was not going to be hit[,]" such matters are not relevant to our review. Id. Based on our review of the record, Appellant's testimony, when viewed in a light most favorable to Appellant, sufficiently indicates that Appellant reasonably believed the force he used against Aaron was immediately necessary to protect himself against Aaron's use or attempted use of unlawful force. Therefore, we hold that in denying Appellant's requested jury instruction, the trial court abused its discretion. Appellant's sole issue is sustained.
Conclusion
Having concluded that the trial court's failure to include a self-defense instruction in the court's charge was an abuse of discretion, we reverse the judgment of the trial court and remand the matter for a new trial.
SAM GRIFFITH
Justice
Opinion delivered March 5, 2003.
Panel consisted of Worthen, C.J., and Griffith, J.
(DO NOT PUBLISH)
1. 2. 3.