Self Defense In Assault Cases In Texas

A person commits assault under the Penal Code if the person: (1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse; (2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Tex. Penal Code Ann. 22.01 (West 1994 & Supp. 1999) (Penal Code). An assault under sub-section one is a class a misdemeanor while assault under subsections two or three is a class C misdemeanor (with certain enhancements available). "Bodily injury" means "physical pain, illness, or any impairment of physical condition." Id. 1.07(a)(8). Bodily injury is a broad term and encompasses even relatively minor physical contacts so long as they constitute more than mere offensive touching. See Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989) (police officer testified that she suffered physical pain when her wrist was twisted by appellant as he grabbed her wallet and twisted it out of her hands and her wrist was bruised; enough to constitute "bodily injury"). The definition of assault is the same, whether in a civil or criminal trial. See Wal-Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 522 (Tex. App.--San Antonio 1996, writ denied). "With the exception of the rule of evidence which gives a person accused of a crime the benefit of a reasonable doubt, the law of self-defense is the same in both civil and criminal cases." Foster v. H. E. Butt Grocery Co., 548 S.W.2d 769, 771 (Tex. Civ. App.--San Antonio 1977, writ ref'd n.r.e.). In Odem, 929 S.W.2d at 518, a store greeter thought that Odem left the store with unpaid merchandise. The employee grabbed Odem by the arm, turned her around, and reached into her purse to retrieve a readily visible blue package. Odem described the act as a "pull or touch of either her elbow or hand." Id. The court said that Odem's testimony clearly disclosed a grabbing of the arm which Odem considered offensive. "Moreover, if the jury accepted the testimony showing that Saenz only grabbed Odem's purse while she was holding on to it, and not any portion of Odem's body, the conduct would, nevertheless, constitute an assault under subsection (3) of section 22.01." Odem, 929 S.W.2d at 522. Self-defense appears in the Penal Code chapter "Justification Excluding Criminal Responsibility." See Penal Code 9.01-9.63. With certain exceptions, 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. See id. at 9.31(a). In discussing whether to instruct on self-defense, a court held, "Thus, if the defendant was acting in self-defense, the assault would not be unlawful." Foster, 548 S.W.2d at 771.