Susan Wilcut v. State ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00737-CR
Susan WILCUT,
Appellant
v.
The
The STATE of Texas,
Appellee
From the County Court at Law No. 2, Bexar County, Texas
Trial Court No. 398965
Honorable Jason Wolff, Judge Presiding
Opinion by: Sandee Bryan Marion, Chief Justice
Sitting: Sandee Bryan Marion, Chief Justice
Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: May 6, 2015
AFFIRMED
Susan Wilcut was convicted by a jury of assault–bodily injury. On appeal, she contends
the evidence is legally insufficient to support the jury’s implicit rejection of her defensive theories
and an error in the jury charge caused her egregious harm. We affirm the trial court’s judgment.
BACKGROUND
The complainant, Laurie Cherry, testified her father conveyed a tract of land to her and her
sister, Lisa Griesenbeck. The land was previously owned by their grandfather, who inherited the
land from his father. When their grandfather died in 2009, his wife was residing on the property,
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and they took no action with regard to the property until their grandfather’s wife died in January
of 2012. At the time their grandfather’s wife died, her son, James Carlton, was residing in a mobile
home located on the land; however, he voluntarily moved from the mobile home after his mother’s
death.
On July 23, 2012, Laurie and Lisa’s father sent Carlton a letter, advising him he had three
days to remove the mobile home from the land or he would forfeit all of his rights to it. Laurie
and Lisa’s mother and Lisa delivered the letter. At that time, Carlton informed them he could not
afford to move the mobile home, and he did not want it. Laurie testified Carlton stated he was not
coming back to get the mobile home or anything else. Lisa testified they thought Carlton was
“finished at the property” based on his statements.
On July 26, 2012, Laurie, Lisa, and Laurie’s husband Troy went to the mobile home to
clean and place the items in the mobile home in bags to put by the road where Carlton could access
them. Laurie explained that “under the eviction process we were, I guess, responsible for bagging
up their stuff to put it where it would be available for them to get.” Laurie acknowledged they did
not go through a formal eviction process, but they had “read the Texas laws that said that we had
to make their stuff available to them.”
Laurie and Lisa testified Carlton had moved from the mobile home four to five months
before they went to bag the remaining items. No locks were on the doors to the mobile home, and
the doors were bent so they would not completely close. Trash and items were strewn throughout
the home. In addition, piles of dog feces, rats, and roaches were present.
Sometime after they arrived at the mobile home, Wilcut, who is Carlton’s step-daughter,
arrived. 1 Laurie and Lisa testified Wilcut was repeatedly yelling she had a gun and would kill
1
Laurie testified Wilcut arrived an hour and a half after they arrived, while Lisa testified Wilcut arrived twenty to
thirty minutes after they arrived.
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them. Troy immediately called 911 on his cell phone. Wilcut then entered the mobile home and
began pushing and bumping them before grabbing and swinging a three-foot tree limb that was in
the mobile home in an effort to hit them. Troy grabbed the tree limb from Wilcut, and Laurie
pulled Wilcut to the floor. As Laurie was pulling Wilcut down, Wilcut grabbed a heavy drinking
glass and hit Laurie in the forehead with it. Laurie testified the laceration required eight stiches,
and photographs of her injury were introduced into evidence. Although Troy had a concealed
handgun license and a handgun was tucked into his waistband, Laurie, Lisa, and Troy all testified
he never pulled out the gun. Laurie and Lisa held Wilcut down until a deputy sheriff arrived.
Wilcut testified she received a phone call that someone was in her step-father’s mobile
home. Wilcut testified she called 911 and was driven to the mobile home by her uncle and another
man who left the scene during the altercation. Wilcut was surprised the authorities had not arrived
before she did. Wilcut stated she was being nice when she first arrived but became angry when
Laurie, Lisa, and Troy refused to exit the mobile home. Wilcut wanted them to wait outside until
the police arrived. Wilcut stated she and Carlton had moved from the mobile home four to five
months before the altercation but were slowly moving their belongings from the home. Wilcut
denied picking up a stick or a tree limb. Instead, she testified Troy pulled out his gun as Laurie
and Lisa threw her down. Wilcut further testified Laurie and Lisa were sitting on top of her and
she was unable to breathe. When Laurie moved slightly, Wilcut was able to free an arm and
grabbed the glass and hit Laurie. Carlton testified he never gave anyone permission to enter his
mobile home and denied saying he did not want the mobile home and was abandoning the
remainder of his property.
Deputy Gabriel Magallanes was the first officer to arrive at the scene. His report noted the
different versions of the events relayed by the parties. He arrested Wilcut at the scene because she
admitted to striking Laurie with a glass.
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The jury charge contained instructions on the defensive theories of self-defense, defense
of property, and defense of property of a third person. The jury implicitly rejected the defensive
theories and found Wilcut guilty of assault-bodily injury. Wilcut appeals.
SUFFICIENCY OF THE EVIDENCE
In her second, third, and fourth issues, Wilcut contends the evidence is legally insufficient
to support the jury’s implicit rejection of her defensive theories.
A. Self-Defense, Defense of Property, and Defense of Property of a Third Person
Section 9.31(a) of the Texas Penal Code defines the defensive theory of self-defense. TEX.
PENAL CODE ANN. § 9.31(a) (West 2011). Under section 9.31(a), “a person is justified in using
force against another when and to the degree the actor reasonably believes force is immediately
necessary to protect the actor against the other’s use or attempted use of unlawful force.” Id. The
use of force against another is not justified if the actor provoked the other’s use of unlawful force
unless the actor abandons the encounter. Id. at § 9.31(b)(4).
Section 9.41(a) of the Code defines the defensive theory of defense of one’s own property.
Id. at § 9.41(a). Under section 9.41(a), “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 the other’s trespass on the land
or unlawful interference with the property.” Id.
Section 9.43 of the Code defines the defensive theory of defense of a third person’s
property. Id. at § 9.43. Under section 9.43, a person is justified in using force against another to
protect land or tangible, movable property of a third person if: (1) the actor would be justified in
using force to protect his own land or property under section 9.41; and (2) the actor reasonably
believes: (1) the unlawful interference constitutes attempted or consummated theft of or criminal
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mischief to the tangible, movable personal property; or (2) the third person whose land or property
he uses force to protect is the actor’s parent. Id
B. Burden of Proof
A defendant bears the initial burden of production with regard to a defensive theory.
Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). This requires the defendant to
produce some evidence that supports the particular defense. Zuliani, 97 S.W.3d at 594. Once the
defendant meets this burden by producing some evidence, the State then bears the burden of
persuasion to disprove the raised defense. Zuliani, 97 S.W.3d at 594; Saxton v. State, 804 S.W.2d
910, 913 (Tex. Crim. App. 2001). The burden of persuasion is not one that requires the production
of evidence, so the State is not required to affirmatively produce evidence refuting the defensive
claim. Saxton, 804 S.W.2d at 913. Instead, the State is required only to prove its case beyond a
reasonable doubt. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913. When the defendant is
found guilty, there is an implicit finding against the defensive theory. Zuliani, 97 S.W.3d at 594;
Saxton, 804 S.W.2d at 914.
C. Legal Sufficiency Standard of Review
In evaluating the legal sufficiency of the evidence, “we consider all the evidence in the
light most favorable to the verdict and determine whether, based on that evidence and reasonable
inferences therefrom, a rational juror could have found the essential elements of the crime beyond
a reasonable doubt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). “Viewing the
evidence ‘in the light most favorable to the verdict’ under a legal-sufficiency standard means that
the reviewing court is required to defer to the jury’s credibility and weight determinations because
the jury is the sole judge of the witnesses’ credibility and the weight to be given their testimony.”
Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (emphasis in original). The jury
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can choose to believe all, some or none of the testimony presented by the parties. Chambers v.
State, 805 S.W.3d 459, 461 (Tex. Crim. App. 1991).
D. Analysis
In view of the testimony presented, the jury could have chosen to believe Wilcut provoked
the use of force against her by entering the mobile home, bumping and pushing Laurie, Lisa, and
Troy, and attempting to hit them with a three-foot tree limb. Although Wilcut denied taking these
actions, the jury is the sole judge of the credibility of the witnesses. See Brooks, 323 S.W.3d at
899. Because the jury could have found Wilcut provoked the use of force against her, the jury
could have rejected her self-defense theory on that basis. See TEX. PENAL CODE. § 9.31(a)(4).
In addition, Wilcut testified she struck Laurie with the glass because she was unable to
breathe. Wilcut did not testify she struck Laurie with the glass to “prevent or terminate [her and]
the other’s trespass on the land or the unlawful interference with the property.” TEX. PENAL CODE
ANN. § 9.41(a); see also Tidmore v. State, 976 S.W.2d 724, 731 (Tex. App.—Tyler 1998, pet.
ref’d) (holding trial court did not err in failing to instruct jury regarding defense of property when
evidence established appellant discharged gun in rage or to protect himself). Also, the jury could
have determined the use of force to protect any property was not “immediately necessary” in view
of Wilcut’s testimony that she had phoned 911 and believed law enforcement should have arrived
before she did. Accordingly, the jury could have implicitly rejected Wilcut’s defensive theories
of defense of property and defense of third person’s property.
Wilcut’s second, third, and fourth issues are overruled.
JURY CHARGE
In her first issue, Wilcut asserts the jury charge included an erroneous instruction with
regard to defense of a third person’s property, and the error resulted in egregious harm. The portion
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of the jury charge about which Wilcut complains is the following instruction on defense of a third
person’s property:
A person is justified in using force or deadly force against another to protect
land or tangible, moveable property of a third person if, under the circumstances as
she reasonably believes them to be, the actor would be justified in using force or
deadly force to protect her own land or property and the actor reasonably believes
the unlawful interference constitutes attempted or consummated theft of or criminal
mischief to the tangible, moveable property, and a third person whose land or
property she uses force or deadly force to protect is the actor’s spouse, parent, or
child, resides with the actor, or is under the actor’s care.
(emphasis added). As previously noted, under section 9.43 of the Code, a person is justified in
using force against another to protect land or tangible, movable property of a third person if: (1)
the actor would be justified in using force to protect his own land under section 9.41(a); and (2)
the actor reasonably believes: (1) the unlawful interference constitutes attempted or consummated
theft of or criminal mischief to the tangible, movable personal property; or (2) the third person
whose land or property he uses force to protect is the actor’s parent. See TEX. PENAL CODE.
§ 9.43. In its brief, the State concedes that the use of the conjunctive term “and” in the jury charge
was erroneous.
Because Wilcut did not object to the instruction, she is not entitled to a reversal unless the
record shows she suffered “egregious harm.” Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim.
App. 2013). “This is a difficult standard to meet and requires a showing that [Wilcut was] deprived
of a fair and impartial trial.” Id. “The record must disclose ‘actual rather than theoretical harm,’
and the error must have affected the very basis of the case, deprived the defendant of a valuable
right, or vitally affected a defensive theory.” Id. (quoting Cosio v. State, 353 S.W.3d 766, 777
(Tex. Crim. App. 2011)). “In determining whether egregious harm is shown, we look at the entire
jury charge, the state of the evidence (including the contested issues and the weight of probative
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evidence), the arguments of counsel, and any other relevant information revealed by the record of
the trial as a whole.” Id.
As previously noted, the jury could have found from Wilcut’s testimony that she was not
acting in defense of property when she struck Laurie, but was only acting to defend herself. See
Tidmore, 976 S.W.2d at 731. Moreover, the jury could have found Wilcut’s use of force was not
“immediately necessary” given her testimony that she previously contacted law enforcement and
only wanted Laurie, Lisa, and Troy to exit the mobile home until law enforcement arrived. During
closing argument, the prosecutor emphasized this testimony, asserting, “Why — if you called the
police, if you were really worried that someone was trespassing and destroying your father’s
property, why didn’t you stay out by your truck and wait for law enforcement to arrive?” Although
Wilcut notes the words “constitutes attempted or consummated theft of or criminal mischief to the
tangible” were underlined in the jury charge by a pen or pencil, any theory or conclusion about the
reason or by whom those words were underlined would be pure speculation. Having reviewed the
record as a whole, we conclude the record does not establish actual as opposed to theoretical harm
or show that Wilcut was deprived of a fair and impartial trial.
CONCLUSION
The trial court’s judgment is affirmed.
Sandee Bryan Marion, Chief Justice
DO NOT PUBLISH
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