Opinion
No. 05-07-00598-CR
Opinion issued July 21, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-81781-05.
Before Justices WRIGHT, BRIDGES, and MAZZANT.
OPINION
Joe Daniel Yougas was convicted of aggravated assault and sentenced to two years in prison. The trial court suspended the sentence and placed him on community supervision for a period of ten years. In his only issue, appellant argues that the jury charge included an instruction on provocation that improperly limited his right to self-defense. We affirm the trial court's judgment.
Discussion
In his only issue, appellant argues that the trial court erred by instructing the jury as to provocation because no evidence suggested that he provoked anyone other than the victim's brother, Marco Malagron. The trial judge charged the jury in part as follows:You are further instructed as part of the law of this case, and as a qualification of the law on self-defense, that the use of force by a defendant against another is not justified if the defendant provoked the other's use or attempted use of unlawful force, unless (a) the defendant abandons the encounter, or clearly communicates to the other his intent to do so, reasonably believing he cannot safely abandon the encounter, and (b) the other person, nevertheless, continues or attempts to use unlawful force against the defendant.In analyzing a jury charge issue, our first duty is to decide whether error exists. Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App. 2003). If we find error, we then analyze that error for harm. Id. The degree of harm necessary for reversal depends on whether the appellant preserved the error by objection. Id. When, as in this case, error is properly preserved, reversal is required if "some harm" is shown. Herron v. State, 86 S.W.3d 621, 632 (Tex.Crim.App. 2002). Thus, we review alleged charge error by considering (1) whether error existed in the charge and (2) whether sufficient harm resulted from the error to compel reversal. See Posey v. State, 966 S.W.2d 57, 60 n. 5 (Tex.Crim.App. 1998). There are limitations on the right to self-defense. See Tex. Penal Code Ann. § 9.31(b) (Vernon Supp. 2007). One of those limitations prevents the use of force, including deadly force, against another when the person claiming self-defense provoked the attack. See id. § 9.31(b)(4). Pursuant to section 9.31(b)(4):
(b) The use of force against another is not justified:
* * *
(4) if the actor provoked the other's use or attempted use of unlawful force, unless:
(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and
(B) the other nevertheless continues or attempts to use unlawful force against the actor.Id. An instruction on provocation is required when there is sufficient evidence (1) the defendant did some act or used some words which provoked the attack on him, (2) such act or words were reasonably calculated to provoke the attack, and (3) the act was done or the words were used for the purpose and with the intent the defendant would have a pretext for inflicting harm upon the other. Harrod v. State, 203 S.W.3d 622, 628 (Tex.App.-Dallas 2006, no pet.) (citing Smith v. State, 965 S.W.2d 509, 513 (Tex.Crim.App. 1998)). All of the elements are questions of fact. Id. The exact words said or action taken by the defendant causing the attack need not be proven to the jury. Smith, 965 S.W.2d at 515. The jury must merely be able to find that there were some provoking acts or words. Id. Acts or words directed at a third party may provoke the difficulty. See Bennett v. State, 726 S.W.2d 32, 36 n. 3 (Tex.Crim.App. 1986) ("an accused could be found to have provoked the difficulty with the intent to kill his adversary by words or acts, or both, directed at a third party, so long as they were calculated to provoke and did provoke his adversary, just as the accused intended"). Viewing the evidence in the light most favorable to giving the instruction, the appellate court must determine if there was sufficient evidence from which a rational jury could have found provocation beyond a reasonable doubt. Id. at 514. Trial testimony shows that, in 2005, there were "bad feelings" between appellant and the Malagron family. Appellant had been involved in a fight at Marco Malagron's house with Marco and a number of other individuals, including two of Marco's brothers, Ricardo and Christian. The following day, there was a confrontation between appellant and Juan Malagraon, the only Malagron brother who was not involved in the fight, when appellant attempted to retrieve his car. On the afternoon of May 14, 2005, Marco was working at a Wendy's restaurant in McKinney, Texas, when he noticed appellant arrive with four friends. From the time he ordered at the counter and continuing throughout the meal, appellant and Marco traded insults and argued back and forth. At one point, according to Marco, appellant said, "I'm going to kick your ass." As he left the restaurant, appellant invited Marco to "[j]ust come outside." Eventually, two of Marco's brothers, Christian and Juan, also arrived at the Wendy's. Juan confronted appellant and told him to quit "messing" with his family. In response, appellant grabbed something from inside his car and wrapped a shirt over his fist. Appellant then swung at Juan with his fist. When Juan tried to defend himself, appellant stabbed him in the knee with what turned out to be a blade wrapped in the shirt. Juan fell down after being stabbed and appellant took a swing at Christian before running away. Marco retrieved a bat from his car but the brothers decided not to pursue appellant because he was armed and running away too fast. Appellant's friends did not intervene. According to appellant and David Saucedo, who was the only one of appellant's friends that testified, Marco followed them out of the Wendy's restaurant and challenged them to fight. When Juan pulled his vehicle in behind appellant's car and blocked his exit, appellant grabbed the box cutter from his car and put it in his pocket. Appellant admitted that he intended to stab Juan in the leg but claimed Juan struck first and that he only stabbed Juan because Juan was trying to choke him. Looking at the evidence in the light most favorable to the instruction, we conclude there is sufficient evidence from which the jury could have found that appellant provoked the difficulty and that appellant's actions were reasonably calculated to provoke the attack. The jury was entitled to draw reasonable inferences and logical deductions from the evidence. Harrod, 203 S.W.3d at 629. The evidence in this case shows a history of animosity between appellant and the Malagron brothers. Although appellant's initial actions in the Wendy's restaurant were directed at Marco, not Juan, they are sufficient evidence that appellant intended to provoke an attack. The jury could have reasonably inferred that appellant knew the Malagron brothers would protect one another and that appellant's words and actions at the Wendy's restaurant would incite them, thereby provoking an attack. Appellant admitted that he probably could have avoided a confrontation by leaving the area. The jurors also could have reasonably inferred that appellant's friends failed to support him or intervene in the fight because appellant provoked the confrontation. Thus, the evidence was sufficient to allow the jury to find the first and second factors. Whether appellant intended to provoke the difficulty must be determined from the circumstances surrounding the attack, including appellant's actions during or after the provocation as well as previous actions. Smith, 965 S.W.2d at 518. Given appellant's words and conduct as set out above, including appellant's decision to arm himself before confronting Juan and the history of animosity between appellant and the Malagron family, the jury could have reasonably inferred that appellant had the necessary intent. Because a rational jury could have found every factor of provocation beyond a reasonable doubt, the trial court properly instructed the jury on provocation. We therefore conclude that there was no jury charge error. We do not reach the issue of harm. Appellant's sole issue is overruled. We affirm the trial court's judgment.