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Court of Appeals of Texas, Houston (1st Dist.).


NO. 01-16-00316-CR

Decided: March 28, 2017

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.


Appellant Phillip Caldwell was convicted of Burglary of a Habitation with the Intent to Commit Assault. In a single issue on appeal, appellant challenges the trial court's refusal to charge the jury with instructions on defense of a third person. Because there was no evidence to support appellant's argument that he reasonably believed that the use of force was necessary to protect a third person, we affirm.


The Penter family was awakened in the early morning hours of July 22, 2015 by appellant loudly pounding on and kicking their front door. Before complainant Samuel Penter could reach the door, appellant forced it open with a shovel, ripping the door partway off its hinges. Appellant was yelling, “Where's my old lady?” Samuel tried unsuccessfully to push the door back closed to force appellant out while shouting at him, “You have the wrong house.” Appellant then burst into the house, striking Samuel in the head with the shovel. As appellant and Samuel continued to struggle, they moved into the kitchen. The altercation continued, resulting in a smashed window and dislodged slats in the floor. In addition to a head injury from the shovel, Samuel was scratched deeply enough to leave a scar on his side. While he was in the Penters' house, appellant continued asking, “Where is she at? Where is she at?”

Samuel's wife Andrea called 911 after making sure their son was safely hidden. A recording of that call, in which Andrea can be heard telling the dispatcher that someone is in her house attacking her husband with a shovel, was played at trial. Shortly thereafter, a neighbor, Douglas Moncrief, ran into the house to help Samuel. Appellant stopped his attack when he saw Douglas. Samuel and Moncrief took appellant outside and kept him contained in the yard until the police arrived.

Andrea testified that she may have seen appellant before, but that they were not acquaintances. Samuel had met appellant “maybe a half dozen times,” which included “seeing [him] in the store and saying, ‘Hi’ and whatnot.” They had twice had drinks together at a bar with a mutual friend, Joshua Cook. Appellant had also been in the Penters' yard once when Samuel was barbequing.

Douglas, the neighbor who helped Samuel, testified that appellant had been at his house immediately before the Penters' house, but that he had not attacked anyone there. Appellant had knocked on his door, and Douglas's stepson opened it. Appellant brushed past the stepson with a shovel in hand, looking around the house and “hollering, ‘Where is she at? Where is she at? I know she's here. I know y'all are hiding her here.’ ” Douglas repeatedly insisted that they did not know who appellant was talking about, but that there was no one hidden in their house. A few minutes after Douglas ordered appellant out of his house, Douglas and his wife heard a commotion at the Penters' house. That noise is what prompted Douglas to come to Samuel's aid.

Douglas testified that he had likewise previously met appellant a few times in passing as well, but that they were not friends. He did not call 911 that morning because appellant did not threaten them and left when told to do so.

Santa Fe Police Officer K. Heintz testified about responding to the home-invasion call at the Penters. The first thing he saw was appellant being held down on the ground. He put appellant in his patrol car and surveyed the scene. He saw the front door hanging on its top hinge, as well as a shovel on the kitchen floor and a broken window in the kitchen. Heintz also observed Samuel's injuries, which included “cuts along his ribcage and a good size knot growing on the top of his head.”

Heintz described appellant as highly intoxicated and uncooperative. Appellant told Heintz that he believed his ex-girlfriend Lindsey 1 was being held in the Penters' house against her will. Appellant did not, however, offer any explanation for that belief. Appellant also told Heintz that the last time he had seen Lindsey was nine months ago.

A. Appellant's Testimony

Appellant admitted at trial to attacking Samuel, but testified that he went to the Penters' house only to protect Lindsey. The afternoon before he assaulted Samuel, appellant had been at his friend Ricky's house in Texas City. Around 6:30 or 7:00 p.m. that evening, another person came into the house and told appellant that he had seen Lindsey in a trailer community in Santa Fe. Appellant knew that the Penters and the Moncriefs lived there. The location had significance to appellant because he believed that Joshua—the mutual friend who introduced him to Samuel—had previously had an affair with Lindsey.

Appellant continued helping Ricky around his house and drinking alcohol for the next few hours. Later that night, one of Rickey's neighbors, Mike, also told appellant that Lindsey was in Santa Fe and agreed to give appellant a ride to the trailer-home community.

Appellant explained that, when they arrived, he grabbed a shovel out of the bed of Mike's truck because he “went over there to find out what happened to Lindsey; and I didn't know what to expect because of people that were there, Doug[las] and them, because I know he ended up cutting my brother with a razor knife two or three years before that.” When appellant did not find Lindsey at the Moncriefs' house, he thought that the Penters' house was the only other place she could be because of Samuel's friendship with Joshua.

In contrast with other witnesses' testimony, however, appellant claimed to have set the shovel down before he approached and knocked on the Penters' door. This was because it occurred to him after he went into the Moncriefs' house carrying a shovel that this might not be appropriate behavior with children around. Appellant testified that Samuel opened the door when appellant knocked and told him that Lindsey was not there. Appellant admitted to assaulting Samuel, but claimed that he only punched Samuel in the face, and that they stayed on the porch; he never crossed the threshold into the Penters' house.

When asked about his belief that Lindsey was in danger and needed his help, appellant explained some history of their relationship and the months leading up to his arrest. He and Lindsey had been together for nine years. He testified that, on the morning he went to the Moncriefs' and the Penters' homes, it had been three months since he had last seen Lindsey. After he and Lindsey got in an argument sometime in April of 2015, he left and went to a friend's in Alvin. He then could not find a ride back to Santa Fe, so he stole someone's phone. He was arrested for that phone theft and spent fifty days in the Brazoria County jail. After he was released, someone told him that Lindsey had moved back to Missouri. But then, on the evening of July 21, 2015, someone told him she was in Santa Fe, and that is why he went looking for her.

When asked how knocking on the Penters' door and inquiring if Lindsey there escalated to a physical altercation, appellant acknowledged, “I wouldn't take no for an answer because I was really concerned about my old lady being there because, like I said, somebody just sit there and told me they seen her there or seen her in the trailer park -- seen her in Santa Fe at that trailer park. So I was -- I was under the impression that she was there.”

When asked about why he felt Lindsey was being held against her will, appellant explained she had not seemed herself when they talked:

When I talk to her on the phone, she's talking to me in a third person, like, somebody else is on the other end -- I don't know how it works. It sounds like I'm being talked to in a third person. I've been with her nine years, day in and day out, and I know her and I know she's been acting off for whatever reason. She ain't been herself. I just been worried, just worried sick and you name it.

When asked why he believed she was in danger, he testified, “That's the only thing I could believe because she wouldn't tell me nothing straight. I can't get a straight answer from nobody.” Finally, when asked whether his actions were because he believed Lindsey needed aid or defense, he responded:

I believe so. I believe she -- when they said she was there, yes, sir, I believe a hundred percent that -- like I said, somebody was lying; and I don't think she goes to that extent to lie to me. You know what I mean? I never thought she would go to the extent to lie to me like that to where it seems like everybody was. I didn't know what to think.

B. The Jury Charge, Verdict, and Trial Court's Judgment

The jury was charged with the offense of Burglary of a Habitation with Intent to Commit Assault. At appellant's request, the jury was additionally charged on the lesser-include offense of Assault Causing Bodily Injury. The trial court denied, however, appellant's request for inclusion of an instruction on defense of a third party.

The jury found appellant guilty of Burglary of a Habitation with Intent to Commit Assault. Appellant pleaded true to a prior conviction for felony Sexual Assault of a Child and elected for punishment to jury. It assessed punishment at 20 years' confinement and $1,000 fine. The court entered judgment on the jury's verdict.


Under Texas law, in some circumstances, a person's use of force in defense of another may be justified:

§ 9.33. Defense of Third Person

A person is justified in using force or deadly force against another to protect a third person if:

(1) under the circumstances as the actor reasonably believes them to be, the actor would be justified under Section 9.31 [self defense] or 9.32 [deadly force in self defense] in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and

(2) the actor reasonably believes that his intervention is immediately necessary to protect the third person.

TEX. PENAL CODE ANN. § 9.33 (West 2011). The section 9.31 self-defense provision referenced in section 9.33 in turn provides “a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force.” Id. § 9.31.

If other words, a “defendant is justified in defending a third person if, under the circumstances as the defendant reasonably believes them to be, the third person would be justified in defending himself.” Morales v. State, 357 S.W.3d 1, 4 (Tex. Crim. App. 2011). To be entitled to a jury instruction on this defense, the defendant must make out a prima facie case, i.e., point to “evidence, from any source, on each element of the defense that, if believed by the jury, would support a rational inference that that element is true.” Shaw v. State, 243 S.W.3d 647, 657–58 (Tex. Crim. App. 2007).

Appellant argues that the trial court erred by refusing to charge the jury on the affirmative defense of a third person, and that error was harmful. He contends that such an instruction was warranted because “the record clearly shows appellant's belief that he searching for and saving his wife, and the reasons for that belief,” as well as “a lack of evidence as to any other motive.” The State responds that an instruction would not have been proper because, appellant's testimony, even if wholly believed, “provides no rational support for the Defendant's belief that Samuel Penter was then and there threatening Lindsey Hood with unlawful force such that assaulting him was immediately necessary to protect Lindsey.” We agree with the State.

There is no evidence that Samuel posed any threat to Lindsey, much less an immediate threat. Nonetheless, an instruction on defense of a third person could still be available. This is because “the focus of the defense-of-third-persons defense is upon what the actor reasonably believes concerning the situation of the third person,” not whether that belief is ultimately proven mistaken. Morales, 357 S.W.3d at 7 (emphasis added). Accordingly, the issue we must resolve is whether there is evidence supporting a reasonable belief that force against Samuel was necessary to protect Lindsey from an immediate threat.

A reasonable belief is “a belief held by an ordinary and prudent man in the same circumstances as the actor.” TEX. PENAL CODE ANN. § 1.07(a)(42) (West 2011). Appellant testified that some person told him that Lindsey was at the trailer-home community where the Penters lived several hours before appellant went to the trailer-home community. Appellant explained that he believed Lindsey was being held somewhere against her will because Lindsey did not sound like herself when they talked at some point on the phone.

There was no evidence, however, that Samuel ever presented a threat to Lindsey, much less that appellant had reason to think he did. See Pena v. State, 635 S.W.2d 912, 914 (Tex. App.—Eastland 1982, pet. ref'd) (defendant's subjective belief that deadly force was necessary to protect two women did not justify defense of third person because “[t]here was no testimony that the [complainant] had directed any threats of any kind toward either of the women”); Constancio v. State, 643 S.W.2d 153, 155 (Tex. App.—Austin 1982, no pet.) (“Viewed in the light most favorable to appellant, we hold the testimony does not raise the issue that appellant reasonably believed his intervention was immediately necessary to protect a third person. Appellant's subjective belief that his [complainant] ‘might’ have shot a third party was insufficient to raise the issue.”). Nor was there any evidence presented that Lindsey was ever in the Penters' house, much less evidence that she was anywhere in the trailer-park community when appellant arrived some six or seven hours after he was told Lindsey had been seen there. Henley v. State, 493 S.W.3d 77, 90 (Tex. Crim. App. 2016) (“[F]orce that is immediately necessary to protect oneself or another from a person's use of unlawful force is force that is needed at that moment—when a split second decision is required.” (quotations omitted)).

The evidence presented at trial—even if appellant subjectively believed it indicated that he needed to protect Lindsey from an immediate threat by Samuel—is not evidence of a reasonable belief justifying a jury instruction on defense of a third person. We overrule appellant's single issue.


We affirm the trial court's judgment.


1.   It is not clear from the record whether Lindsey had been his girlfriend or his wife. She is referred to as both various places throughout the record.

Sherry Radack Chief Justice