Timothy John Cammer v. State

98-01014 Cammer v State of Texas.wpd No. 04-98-01014-CR Timothy John CAMMER,

Appellant

v.

  STATE of Texas,

Appellee

From the 290th Judicial District Court, Bexar County, Texas

Trial Court No. 96-CR-2316

Honorable Sharon MacRae, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: November 8, 2000

REVERSED AND REMANDED.

Timothy Cammer was convicted by a jury of aggravated assault. On appeal, he attacks the sufficiency of the evidence supporting the jury verdict of guilt and the jury finding regarding self-defense. Cammer also complains of the trial court's failure to instruct the jury on the issue of defense of property with force.

Background  

This case involves an incident of "road rage." Cammer was driving a large Ford F-350 pickup truck when he encountered Eric Hammeren, who was driving a Toyota Corolla. One of the drivers evidently "cut off" the other, precipitating an exchange of gestures and taunts between the two drivers. Hammeren then followed Cammer's truck into a restaurant parking lot. After Cammer's passengers exited his truck, Hammeren and his passenger, Kevin Kelly, approached Cammer's truck and began a more personal confrontation. Cammer remained in his vehicle as he and Hammeren exchanged obscenities.

There was some testimony that Cammer chased Hammeren around the parking lot with his truck. At some point, however, Hammeren grabbed onto the truck's driver's side rear view mirror. At or about this time, Cammer shifted the truck into reverse, backed ten to fifteen feet, and then applied the brakes. Cammer said he was acting defensively when Hammeren grabbed the mirror and began banging on his partially open window. Hammeren's story is that he grabbed the mirror only after Cammer began backing toward him and hung on to keep from being run over. It is undisputed that when the truck suddenly stopped, Hammeren was thrown from the truck mirror and suffered serious injuries, including broken ribs and a bruised liver.

Discussion

• Legal Sufficiency

Cammer asserts the evidence is legally insufficient to support the jury's verdict of guilt and its failure to find self-defense. In reviewing a legal sufficiency point, we ask, "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); accord Clewis v. State, 922 S.W.2d 126, 132-33 (Tex. Crim. App. 1996).

The evidence presented constitutes a "swearing match," providing two contradictory accounts of the incident. Hammeren and Kelly testified they were attacked by Cammer, who intended to hit them with his truck. Cammer testified he acted in self-defense, claiming he was attacked by Hammeren and Kelly and that the injury occurred as Cammer tried to leave the scene. The jury was free to believe or disbelieve any or all the evidence it heard. And since there is some evidence to support the jury's answers, we cannot set the verdict aside on grounds of legal insufficiency.

• Jury Instructions

At trial, Cammer requested jury instructions on the issues of self-defense, defense of property with force, and defense of property with deadly force. The trial court granted Cammer's request for a self-defense instruction, but denied the requested instructions on defense of property. Cammer argues the trial court erred in refusing to instruct the jury on the issue of defense of property with force. We agree.

An accused has the right to an instruction on any defensive issue raised by the evidence. Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). This is true regardless of the strength of the evidence or whether it is controverted. Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987). Further, the defendant need not testify for evidence to raise a defensive issue, but rather, evidence from any source can raise the defensive issue. Id. at 809. If the evidence has any tendency to raise the issue of defense of the person as well as defense of property, the court must give a separate charge on each theory. Sledge v. State, 507 S.W.2d 726, 729 (Tex. Crim. App. 1974).

Section 9.41 of the Texas Penal Code regards the right to defend one's property, providing:

A person in lawful possession of land or tangible, moveable 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.

Tex. Pen. Code Ann. §9.41(a) (Vernon 1994).

The State argues Cammer never testified he acted out of fear for his truck. Further, the State asserts Cammer's truck "just simply happened to be there" and that if Cammer acted in defense to anything, it was himself. We have already noted, however, that evidence regarding a defensive issue can come from any source. Hayes, 728 S.W.2d at 809.

At trial, one of Cammer's former passengers, who witnessed the incident, testified she saw Hammeren and Kelly "throwing stuff at the truck. Might have been rocks." She later testified one of the rocks hit Cammer's side of the truck, possibly leaving a dent. She further testified that as Hammeren was holding onto the mirror, he was "banging on the window." Also, she testified either Hammeren or Kelly was holding some sort of a stick or bat during the confrontation.

In addition, Cammer testified that Hammeren spit at him and at his truck. Cammer claimed he maneuvered his truck in that manner to avoid damaging his vehicle, and at one point, stated he drove forward to "get [Hammeren] away from my vehicle, too." Further, Cammer testified he slammed on the brakes to "get [Hammeren] off my truck and get him away from me."

The State cites Leach v. State for the proposition that there must have been some damage to the property for an instruction on defense of property to be available. See Leach, 983 S.W.2d 45, 47-48 (Tex. App. - Tyler 1998, no pet.). Although we question the need to show actual damages to property to get the instruction, it is unnecessary to decide that issue in this case because there is evidence Cammer's truck had been damaged.

We conclude the evidence is sufficient to raise the fact question of whether Cammer acted out of defense of his property and an instruction should have been given to the jury on this issue. See Sledge, 507 S.W.2d at 729-30; Venegas v. State, 660 S.W.2d 547, 549-50 (Tex. App. - San Antonio 1983, no pet.). Further, we find the error was "calculated to injure the rights of" Cammer. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Although a jury may have reasonably found that Cammer, enclosed in his one-ton truck, did not act out of fear for himself, the same jury reasonably could have found Cammer justifiably acted out of fear of damage to his truck.

Conclusion The trial court erred in denying Cammer's requested instruction on defense of property with force and he is, therefore, entitled to a new trial. All other points of error are overruled. The judgment is reversed and the case is remanded to the trial court for further proceedings.

PAUL W. GREEN

Justice

DO NOT PUBLISH