Javier Ybarra v. The State of Texas--Appeal from 12th District Court of Madison County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00066-CR

Javier Ybarra,

Appellant

v.

The State of Texas,

Appellee

From the 12th District Court

Madison County, Texas

Trial Court No. 05-10942-012-03

MEMORANDUM Opinion

Javier Ybarra, an inmate in prison, was convicted of two counts of assault on a public servant for throwing scalding hot liquid on two correctional officers. The officers suffered first and second degree burns. Ybarra represented himself at trial but had counsel standing by for any assistance if requested by Ybarra. Because the trial court did not err in denying Ybarra s request for a self defense instruction, we affirm the trial court s judgment.

In one issue, Ybarra contends that the trial court erred in denying his requested self defense instruction. In general, "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. Penal Code Ann. 9.31(a) (Vernon 2003). Further, a "defendant is entitled to an affirmative defensive instruction on every issue raised by the evidence . . . ." Young v. State, 991 S.W.2d 835, 840 (Tex. Crim. App. 1999) (Mansfield, J., dissenting). However, if the evidence, viewed in the light most favorable to the defendant, does not establish self-defense, the defendant is not entitled to an instruction on the issue. Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001). Additionally, "to rely on 'self-defense,' the defendant must first admit," or "substantially admit," "committing the conduct which forms the basis of the indictment; the defense is inconsistent with a denial of the conduct." East v. State, 76 S.W.3d 736, 738 (Tex. App. Waco 2002, no pet.); see Ex parte Nailor, 149 S.W.3d 125, 133-34 (Tex. Crim. App. 2004) (distinguishing self defense from accident); see also Kitchen v. State, No. 10-05-00169-CR, 2006 Tex. App. LEXIS 2978, *1-2 (Tex. App. Waco April 12, 2006, pet. ref d) (mem. op.).

Although he conducted cross-examination and direct-examination, Ybarra was not sworn as a witness and did not testify. What was established through the witnesses who testified was that Ybarra threatened an officer; he was asked to submit to a strip search and be moved to another location; he refused; a use of force team was established; he again refused to submit to a strip search and be moved; he was sprayed with a chemical agent; he threw a very hot liquid substance at the officers; the liquid struck two officers which burned them. Self defense was not established by the evidence and, accordingly, Ybarra was not entitled to the self-defense instruction. Ybarra s sole issue is overruled.

Having overruled Ybarra s only issue, the trial court s judgment is affirmed.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed January 2, 2008

Do not publish

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