KERRY BRUCE YARBROUGH, Appellant v. STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed May 15, 2009.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-00453-CR
............................
KERRY BRUCE YARBROUGH, Appellant
V.
STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F06-19549-UK
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OPINION
Before Justices FitzGerald, Lang, and Lagarde   See Footnote 1 
Opinion By Justice Lang
        Following a plea of not guilty, a jury convicted appellant Kerry Bruce Yarbrough of aggravated assault. The trial court found Yarbrough used a deadly weapon in the commission of the offense and sentenced him to three years' confinement. Yarbrough raises two issues on appeal, claiming (1) the trial court erred when it denied his request for a defense of property jury charge instruction, and (2) the evidence was factually insufficient to show he knowingly and intentionally committed aggravated assault. We conclude the record does not show Yarbrough was entitled to a jury charge instruction regarding defense of property in this case. Also, we conclude the evidence was factually sufficient to prove Yarbrough knowingly and intentionally committed aggravated assault. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        Yarbrough testified his vehicle and that of the complainant, Megan Manuel, were involved in an automobile collision on a service road while merging onto Highway 635 in Dallas, Texas. Manuel denied the vehicles made any contact, stating that Yarbrough was behind her on the service road and was “getting upset” because he could not pass her to merge onto Highway 635. Manuel did not stop after the alleged collision, but accelerated onto the highway. Yarbrough followed Manuel's vehicle in his van, honking his horn, allegedly to get her attention to obtain her license plate number and insurance information. He attempted to stop her by pulling up beside her in another lane and motioning for her to pull over. According to Manuel and Brian Sauser, an eyewitness also driving on Highway 635 that day, Yarbrough attempted to run Manuel off the road. At trial, Yarbrough's counsel asked Sauser whether driving beside Manuel and motioning for her to pull over would have the “same effect” as attempting to “knock” Manuel off the road. Sauser replied, “Possibly, but I didn't see that.”
        Manuel drove across several lanes of traffic and pulled into the HOV lane in an attempt to distance herself and her passenger from Yarbrough. Yarbrough followed, pulled his van in front of Manuel's vehicle in the HOV lane, and slowed down, but she pulled around him and continued driving in the HOV lane. Yarbrough caught up with her again in the HOV lane, pulled in front of her and “slammed” on his breaks. Manuel stopped. Yarbrough alighted from his van and began yelling at Manuel. She drove off, eventually making her way back into the HOV lane. Yarbrough continued to follow Manuel, catching up with her a third time. He squeezed past and in front of Manuel's vehicle at the point where the HOV lane funneled into a lane where both sides of the lane were bounded by concrete barricades. Then, Yarbrough stopped his van, put it in reverse, and began backing up toward Manuel. She “mashed” on her brakes, but could not avoid a collision with Yarbrough's van. Two of the vehicles behind her were also unable to stop in time to avoid the collision. Yarbrough attempted to drive off and leave the scene, but one of the drivers involved in the collision stepped in front of his van and kept him from leaving. At this point, both Yarbrough and Manuel left their vehicles and Manuel screamed “you are trying to kill me.”
        When police arrived at the scene, Yarbrough approached an officer and claimed he was the victim of an accident, describing the prior alleged collision on the service road merging onto Highway 635. He told the officer he had followed Manuel in order to obtain her identification and insurance information. After speaking to Yarbrough and Manuel, the officer determined Manuel was the victim.
        At trial, Yarbrough testified he had previously been involved in a collision where a driver rear-ended his “vehicle,” then left the scene before Yarbrough was able to obtain any information from him. It cost Yarbrough $3000 to repair the damage to his “vehicle” in the previous collision. Also, Yarbrough introduced evidence regarding the $250 in damages to his van that Manuel had caused. Then, Yarbrough stated he did not intend to frighten Manuel or “make her fear for her life,” but that he did intend to ensure she was held “financially responsible” for the damage she caused to his van. Yarbrough admitted he did not file an insurance claim against her.
        After both sides closed, Yarbrough requested a defense of property instruction in the jury charge, which the trial court denied. Yarbrough objected to the denial of his request for a defense of property instruction in the jury charge. Following the jury's finding of guilt and the trial court's assessment of punishment, a judgment was signed and entered accordingly. Yarbrough filed a motion for new trial. The record is silent as to the disposition of that motion. This appeal timely followed.
II. REQUEST FOR JURY INSTRUCTION REGARDING “DEFENSE OF PROPERTY”
 
 
 
 
        In his first issue, Yarbrough contends the trial court erred when it denied his requested jury charge instruction regarding defense of property pursuant to Texas Penal Code section 9.41(a). See Tex. Penal Code Ann. § 9.41(a) (Vernon 2003). Yarbrough asserts he requested a specific charge of defense of property during the charge conference and objected when it was not included in the jury charge. He argues he was harmed because “the jury was not able to consider” his defense and “could have acquitted him” if they believed his testimony. The State responds that a jury charge regarding defense of property was not appropriate in this case because (1) Yarbrough was not using force “to prevent or terminate” the “unlawful interference with the property,” and (2) Yarbrough's “categorical denial” of committing the charged offense did not entitle him to a justification defense.
A. Standard of Review
 
        1. Jury Charge Error Generally
 
        An appellate court's first duty in evaluating a jury charge issue is to determine whether error exists. See Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005); Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003) (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)). Then, if error is found, the appellate court must determine whether the error caused sufficient harm to require reversal. Middleton, 125 S.W.3d at 453; see also Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).
        The degree of harm necessary for reversal depends on whether the appellant preserved the error by objection. See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); Ngo, 175 S.W.3d at 743. Error in the charge, if timely objected to in the trial court, requires reversal if the error was “calculated to injure the rights of defendant.” See Tex. Code Crim. Proc. Ann. art. 36.19. This means, in the view of the court of criminal appeals, that if the charge contains error and the error has been properly preserved by objection, reversal is mandated as long as the error is not harmless. Almanza, 686 S.W.2d at 171. However, if no objection was made at trial, reversal is proper only if the error is so egregious and created such harm that it might be fairly said the defendant did not have a fair and impartial trial. Id.
2. Denial of Requested Instruction Regarding Defensive Issue
 
        We review a trial court's decision not to include a defensive issue in a jury charge for an abuse of discretion. See Love v. State, 199 S.W.3d 447, 455 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd) (citing Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000)). 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 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). A defendant is entitled to an instruction on every defensive issue raised by the evidence, 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). When reviewing a trial court's decision to deny a requested defensive instruction, the appellate court views the evidence in the light most favorable to the defendant. Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006).
 
B. Applicable Law
 
        Defense of property, “like other chapter nine defenses, justifies conduct that would otherwise be criminal.” VanBrackle v. State, 179 S.W.3d 708, 715 (Tex. App.-Austin 2005, no pet.) (addressing self-defense) (citing Young v. State, 991 S.W.2d 835, 838 (Tex. Crim. App. 1999) (necessity)). Pursuant to section 9.41(a) of the Texas Penal Code:
 
A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate . . . unlawful interference with the property.
 
Tex. Penal Code Ann. § 9.41(a). In order to raise defense of property, a “defendant must 'admit' violating the statute under which he is being tried, then offer a statutory justification for his otherwise criminal conduct.” VanBrackle, 179 S.W.3d at 715 (citing Young, 991 S.W.2d at 838); see also Hudson v. State, 145 S.W.3d 323, 325 (Tex. App.-Fort Worth 2004, pet. ref'd) (“When there is no evidence of a belief that force is needed to defend property, a criminal defendant is not entitled to a jury instruction on defense of property.”). Accordingly, a defendant is not entitled to a jury instruction on defense of property “if, through his own testimony or the testimony of others, he claims he did not perform the assaultive acts alleged, or that he did not have the requisite culpable mental state, or both.” VanBrackle, 179 S.W.3d at 715.
 
C. Application of the Law to the Facts
 
        We address first Yarbrough's request to include a defense of property instruction in the jury charge. See Ngo, 175 S.W.3d at 743-44; Middleton, 125 S.W.3d at 453. The record shows Yarbrough did not admit he committed the charged offense of aggravated assault. See VanBrackle, 179 S.W.3d at 715; Hudson, 145 S.W.3d at 325. He contended he did not use force at any time while following Manuel and merely attempted to convince her to pull over in order to obtain her insurance information. Also, he testified he did not intend to threaten or frighten Manuel. However, a defendant is not entitled to a jury instruction on defense of property “if, through his own testimony or the testimony of others, he claims he did not perform the assaultive acts alleged, or that he did not have the requisite culpable mental state, or both.” VanBrackle, 179 S.W.3d at 715.
        Viewing the evidence in the light most favorable to Yarbrough, we conclude the record does not show he was entitled to a jury charge instruction regarding defense of property in this case. See Bufkin, 207 S.W.3d at 782; VanBrackle, 179 S.W.3d at 715; Hudson, 145 S.W.3d at 325. Accordingly, the trial court did not abuse its discretion by denying Yarbrough's requested jury charge instruction. We decide Yarbrough's first issue against him.
 
III. FACTUAL SUFFICIENCY
 
        In his second issue, Yarbrough argues the evidence is factually insufficient to prove he knowingly and intentionally committed aggravated assault. Yarbrough claims his testimony was the only “direct evidence” of intent and that the testimony of other witnesses was “not inconsistent” with his stated intent. The State responds that intent can be inferred and the facts are factually sufficient to prove Yarbrough was intentionally and knowingly “trying to push [Manuel] off of the highway with his van.”
A. Standard of Review
 
        In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 282 (2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). When conducting a factual sufficiency review, an appellate court considers all of the evidence, both direct and circumstantial, whether properly or improperly admitted. See Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007); Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007). Reversal for factual insufficiency occurs only when: (1) the evidence supporting the verdict is so weak the verdict seems clearly wrong and manifestly unjust; or (2) there is some objective basis in the record that shows the great weight and preponderance of the evidence contradict the jury's verdict. See Berry, 233 S.W.3d at 854; Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 417. We give deference to a jury's decision regarding what weight to give contradictory testimonial evidence because the decision is most likely based on an evaluation of credibility and demeanor, which the jury is in the better position to judge. See Lancon, 253 S.W.3d at 706.                                         B. Applicable Law
        Pursuant to section 22.01(a)(2) of the Texas Penal Code, “[a] person commits [assault] if the person . . . intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse.” Tex. Penal Code Ann. § 22.01(a)(2) (Vernon Supp. 2008). Further, a person commits aggravated assault “if the person commits assault as defined in § 22.01 and the person . . . uses or exhibits a deadly weapon during the commission of the assault.” Id. § 22.02(a)(2).
C. Application of the Law to the Facts
 
        Yarbrough testified he did not try to run Manuel off the road, rather he was attempting to convince her to pull over in order to obtain her insurance information. Also, he testified he did not intend to threaten or frighten Manuel. However, Manuel and Sauser testified Yarbrough chased Manuel on Highway 635 and attempted to “run her off the road.” When Sauser was asked whether driving beside Manuel and motioning for her to pull over would have the “same effect” as attempting to “knock” Manuel off the road, he replied, “Possibly, but I didn't see that.” Also, Manuel and Sauser testified that Yarbrough pulled in front of Manuel and either slowed down or stopped in front of her three different times on the highway. The third time Yarbrough pulled in front of Manuel was in an HOV lane with concrete barriers on either side. There, Yarbrough stopped and began backing toward Manuel, forcing her to “mash” on her brakes in order to stop. At this point, Yarbrough's actions caused his van to collide with Manuel's vehicle. Two other vehicles in the HOV lane could not stop and slid into each other and Manuel's vehicle. Finally, two witnesses driving on Highway 635 the day of the collision testified Yarbrough attempted to leave the scene after the vehicles collided.
        We give deference to a jury's decision regarding what weight to give contradictory testimonial evidence. See Lancon, 253 S.W.3d at 706. Viewing the evidence in a neutral light, we conclude there is factually sufficient evidence from which a fact-finder could rationally conclude beyond a reasonable doubt that Yarbrough knowingly and intentionally committed aggravated assault. We decide Yarbrough's second issue against him.
IV. CONCLUSION
 
        The record does not show Yarbrough was entitled to a jury charge instruction regarding defense of property in this case. Also, the evidence was factually sufficient to prove Yarbrough knowingly and intentionally committed aggravated assault. The trial court's judgment is affirmed.
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
080453F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.