Summary
holding defendant was not entitled to presumption because he was a felon in unlawful possession of a firearm
Summary of this case from Larrinaga v. StateOpinion
No. 05-10-00732-CR
Opinion Filed August 12, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 363rd Judicial District Court Dallas County, Texas, Trial Court Cause No. F08-62443-W.
Before Justices BRIDGES, LANG-MIERS, and MURPHY.
OPINION
Kevin Jermaine Davis was charged with and convicted of the murder of Octavier Greer. Greer was about 18 years old and worked in maintenance at the apartment complex where he was shot and killed by appellant. Appellant testified that he was acting in self-defense and in defense of his family when he shot Greer. The trial court instructed the jury on murder, manslaughter, and appellant's defensive issues. The jury rejected appellant's defensive issues and convicted appellant of murder. After appellant pleaded true to an enhancement paragraph, the jury sentenced him to 55 years' incarceration. In seven issues, he argues that the evidence is insufficient to show that his conduct was not justified and that the trial court committed jury charge error. For the following reasons, we affirm the trial court's judgment.
Sufficiency of the Evidence
In issues one and two, appellant challenges the factual sufficiency of the evidence to support the jury's rejection of his claims of self-defense and defense of third persons.Standard of Review
Claims of self-defense and defense of third persons are defenses to prosecution, and the defendant bears the burden of producing some evidence to support those defenses. See Tex. Penal Code Ann. §§ 2.03, 9.02, 9.32, 9.33 (West 2011); Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). The State, however, bears the ultimate burden of persuasion to disprove the defenses beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594-95; Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1992). Because the State bears the ultimate burden of persuasion to disprove the defensive theories, we review the sufficiency of the evidence under the Jackson v. Virginia standard. See Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.) (eliminating factual sufficiency review); Smith v. State, No. 01-09-00634-CR, 2011 WL 1233367, at *4 (Tex. App.-Houston [1st Dist.] Mar. 31, 2011, no pet. h.) (applying Jackson v. Virginia standard to jury's rejection of self-defense claim); Saxton, 804 S.W.2d at 914 (distinguishing standard of review with regard to defensive claims in which the State bears the burden of persuasion and affirmative defenses in which the defendant bears the burden of proof). Under the Jackson v. Virginia standard, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks, 323 S.W.3d at 899. A jury's "verdict of guilty is an implicit finding rejecting the defendant's self-defense theory." Saxton, 804 S.W.2d at 914. In our review, we 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. See Jackson, 443 U.S. at 326. We measure the sufficiency of the evidence against the hypothetically correct jury charge. Cada v. State, 334 S.W.3d 766, 773 (Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). The hypothetically correct jury charge "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. (quoting Malik, 953 S.W.2d at 240).Applicable Law
The indictment alleged that appellant "unlawfully then and there intentionally and knowingly cause[d] the death of Octavier Greer, an individual, hereinafter called deceased, by shooting the deceased with a firearm, a deadly weapon. . . ." A person commits the offense of murder if he intentionally or knowingly causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1). A person is justified in using deadly force when and to the degree the person reasonably believes that deadly force is immediately necessary to protect himself against another's use or attempted use of deadly force. Id. § 9.32(a)(2)(A). A person is justified in using deadly force against another to protect a third person if the person reasonably believes that he would be justified in using deadly force to protect himself and that his intervention is immediately necessary to protect the third person. Id. § 9.33.Discussion
The State called as witnesses four of the eyewitnesses to the shooting. They included two teenagers who lived in the apartment complex, a young woman and friend of the deceased's, and a grandmother who was visiting a friend. The State also presented testimony from a police detective, a crime scene analyst, a firearms expert, and a trace evidence expert. It also played a recorded telephone conversation appellant had with his wife and brother from jail. The defense called as witnesses appellant and appellant's mother and aunt. Appellant's brother also testified for the defense, but in the State's case-in-chief pursuant to a subpoena. The incident that led to the shooting began in the apartment complex where appellant's brother, Alex Inkton, lived with his roommate Dominic (Nick) Handley. Nick was also the girlfriend of appellant's sister, Kenya Reed. Appellant's mother, Brenda Inkton, Brenda's sister Sheila Davis and Kenya went to Alex and Nick's apartment to get Nick. Kenya went upstairs to get Nick. When Kenya and Nick came down the stairs, they were cursing at each other. Nick called Kenya a "ho" and Kenya hit Nick. The argument continued into the parking lot, where the girls started fist fighting. One of the eyewitnesses, Sharon Clark (the grandmother), testified that she was going to an upstairs apartment to visit a friend. She did not see the fight between Kenya and Nick, but she heard people in the parking lot talking about it. She said the parking lot was full of people, including children, which was "usual when someone fight or whatever, a crowd will come. . . ." She said there was "not a lot of hollering going on" and people were just "standing around talking about what happened." She and her friend were outside talking when they saw a girl and a guy walk up. Sharon's friend told Sharon that the guy had a gun from "the way he's acting." Sharon said she heard the girl tell the guy, "I brought somebody for you." That's when the guy with the gun walked "up like he was fixing to fight [Greer]." Demonstrating for the jury, she said appellant had his hands up like he was really about to fight. But she said "instead of fighting, he actually pulled a gun and shot him." She said appellant and Greer were face to face when the shooting occurred. She said Greer "had his hands in the air the same way," ready for a fight. She said that at the time Greer got shot, "it was just them two right there. It's like the crowd was coming in as they do when people fight. . . . But as he shot, I mean, the crowd stopped at a distance." She did not see anyone else running up on the shooter before Greer was shot. And she did not see anyone with weapons except appellant. She did not testify that she heard more than one gunshot. She testified, "After the shot rang out," "[t]he shooter ran. Everybody ran." She did not see where appellant ran. Another eyewitness, Treyvonne Williams, testified that she was standing in the doorway of Greer and his girlfriend's apartment and saw the fight. Greer was in the apartment eating nachos. She said the two girls who were fighting left for a while and then came back with two boys, one of whom was appellant. She saw Sedrick Williams, who lived in the same apartment complex, and some other boys come around the corner and walk up to the girls. Appellant and Sedrick were standing face to face and exchanged words. She said there was a crowd of people surrounding them in a circle, but they were not "getting in on the action," and were "just standing there, looking, waiting on the fight." She did not see anyone in the crowd assaulting appellant. She said Greer ran down to the parking lot, pushed Sedrick out of the way, and was standing face to face with appellant. Appellant said, "what's up cuz," which Treyvonne said meant he was ready to fight. She said Greer put his hands up and started to throw a punch, but appellant shot him. Greer fell face down, and Nick, Kenya, appellant, and another male she did not know ran to a black car and left. One of the girls who had been fighting kicked Greer before she ran to the car. Appellant got in the front passenger seat. Treyvonne said appellant's mother and aunt were not there. She did not see anyone but appellant with a gun, and she heard only one gunshot. Sedrick Williams, who was about 14 years old when the shooting occurred, testified that he and his "homeboys" were trying to get the girls to stop fighting so that the police would not come to the apartment. He said there was a lot of "commotion" going on. He saw a man with a box haircut get out of a red car and say, "Hold on, cuz," like he wanted the girls to keep fighting. He said the two girls and "the little thick lady" "was doing a lot of commotion. You know how people is when they getting into it." He said the commotion was directed at him and his friends, but he could not really hear what they were saying. Then "the little thick lady . . . called some dude over there with the braids." She said, "I got something for you, I got something for you, and then she called — she called somebody. I don't know. Called the dude with the braids." He said everybody was talking, "just talking, just having a big old commotion, everybody is talking. My — my side over here. They side over here." He said there were about six people with him. He saw "the dude with the braids," later identified as appellant, running through the breezeway of the apartment. He demonstrated how appellant appeared-hand by his waist, bouncing up and down. Sedrick said appellant was holding something, but he did not see a gun. Then Sedrick saw Greer in the corner of his eye running up. Greer " came running behind me and went straight to the dude — and went straight to the dude with the braids." He was ready to throw a punch, and "started to throw a punch, but he — he didn't get it in as quick as he got that bullet in." He saw appellant shoot Greer "in the middle of the chest." Sedrick testified that he saw the gun in appellant's hand at that point. Then "they all left." He said "the two dykes, the dude with the box [haircut] . . . and the dude that shot [Greer] . . . and the lady that called the dude . . . got in the [black] car." He said he thought appellant got in the back passenger seat. Sedrick was not asked how many gunshots he heard, and he testified to having heard one. Raelyn Michael, who was about 13 years old at the time of the shooting, testified that she knew of Greer, but did not know any of the other people involved in the incident. She said she was sitting outside with her mom, her sister, and a little boy. She saw two young ladies arguing. She said there was a man and a woman with them. The woman "was kind of thick built, and . . was . . . an older lady." She said the man began to yell at the ladies who were fighting, and about that time, Sedrick came up and told the man that he should not be talking to the ladies like that. She said that made the man mad, and he started arguing with Sedrick. She said this went on for about five minutes and there were other people standing around, but they were "real far back." She said the only time there was a crowd was after Greer went down. She saw one of the ladies who had been fighting run off under the breezeway. About five minutes later, she came back through a different pathway and had another man with her. This man had a gun. Raelyn saw the man take the gun out of his pocket, look at it, and put it back in his pocket. She demonstrated for the jury what she saw the man do with the gun. Meanwhile, Sedrick had taken off his shirt and was about to fight the other man when the lady and the man with the gun approached. The man with the gun said "what's the problem, or whatever" and Sedrick was "about to fight him." She saw Greer jump down off his stairs and run over. She said appellant and Greer "start posting up," meaning they were pulling up their pants and putting their hands in the air like they were about to fight. While demonstrating for the jury what she saw, she said the man with the gun threw the first punch, Greer ducked, and Greer took a swing at the man with the gun, "and then the gentleman reached here and did that and shot him and [Greer] did that and he fell like that." Raelyn testified that after Greer was shot, the "older lady" got into a black car on the driver's side and the "shooter got into the passenger side." Before they left in the car, she saw one of the ladies who had been fighting kick the deceased. Raelyn said she heard two gunshots pretty close in time. Detective Jerry Fonville testified that he investigated the shooting. When he arrived at the scene, patrol officers had taped off several hundred square yards of area in the parking lot. Fonville testified that he found one shell casing about ten feet away from an eight-inch pool of blood. He did not find any other fired cartridge casings or bullets at the crime scene. Andra Lewis-Krick testified that she was a crime scene analyst at the time of the shooting and processed the scene for prints and collected evidence. She processed a black vehicle in which eyewitnesses said appellant left the scene. She explained her photographs to the jury, showing that the vehicle was dirty except around the front and rear passenger door handles and rear passenger window where it appeared someone had wiped down those areas. The doors and windows on the driver's side did not appear to have been wiped down. She testified that she was unable to lift any fingerprints from the door handles. The firearm examiner testified that the bullet that killed Greer was a .40 caliber. She tested the cartridge casing found at the scene and determined that it was also a .40 caliber casing, but there were no tool marks by which she could determine that the bullet came from that cartridge casing. The trace evidence examiner testified that she analyzed the deceased's hands and found one particle of gunshot residue on the back of the deceased's left hand and one particle on the back of his right hand. She said anyone within three to five feet of the end of the barrel of the gun or within 12 to 24 inches of the side of the gun could possibly receive gunshot residue when the gun was fired. Her report listed three possibilities for the gunshot residue that she found on the deceased's hands: he could have been in the area where the gun was fired, he could have fired the gun himself, or he could have handled a firearm or its components, such as bullets or ammunition. She testified that there was no way to connect the gunshot residue on the deceased's hands to the bullet that killed him or to any individual. The police never recovered the gun that was used to kill Greer. The State also played a recording of a conversation appellant had from jail with his wife and his brother. In that conversation, appellant recounted the night of the shooting and how he made fun of one of the boys in the crowd, calling him "dirty draws" and telling him "with . . . your dirty boxer a-, you need to go on with this s-." The defense presented the following evidence. Appellant's brother, Alex, testified that he was upstairs watching television when he heard his mother calling to him from downstairs. He went downstairs where he saw Nick and his sister, Kenya, fighting in the parking lot. He saw several young neighborhood boys who "wanted to see something go down." The boys told Nick to "hit that ho, jump that ho, start something. . . ." Alex told the crowd to leave, that "this was family business," and that the fight was none of their business, but when he said that, "every single one of them — like five of them — four or five of them — every single one of them start cussing me out." He said the boys yelled and hollered in a threatening manner and he was afraid for his mom, sister, aunt, and Nick. He said the boys were dressed "like thugs" and were "sagging"-"[l]ike the pants hanging off their bottoms with their underwear showing." He also said the boys had both hands on their pants and that he saw bulges in their pants "like it was guns." He said there were over 20 people closing in on them in a "big tight circle." He said he "felt a graze over [his] face, like somebody took a swing at [him]," and at the same time he heard a gunshot. He said he heard "[m]aybe at least two, three" gunshots when Greer was shot and about four or five more as they got into the car to leave. He said appellant did not get into the black car after the shooting. Alex testified that he talked to the police the day after the shooting and the police were trying to pin the shooting on him. He told the police that he heard only one gunshot. He did not tell the police about hearing gunshots as they were leaving in the car. He did not tell police about the boys who had bulges in their pants. And he did not tell the police about appellant being there when the shooting occurred. He said he tried to tell the police those things, "but one of them said it was bulls-." Brenda Inkton, who is the mother of appellant, Kenya, and Alex, testified that she, her sister Sheila Davis and Kenya arrived at Alex and Nick's apartment and had plans to celebrate Brenda's job promotion. She said Kenya and Nick came down the stairs cursing at each other. Then they started fighting in the parking lot. She called to Alex for help, and the two of them separated the girls. She said a crowd gathered, and Alex tried to get them to leave, but the crowd grew angry and began to move in on them. She said one of the boys said, "I'm going to kill you, someone going to die tonight." She went to the car and got the big end of a "pool stick" to help defend Alex because he had a finger in a cast. She said the confrontation went on for about 25 to 30 minutes and the situation "kept getting worse and worse and worse. And I was afraid for my life and also my children life . . . And all I could think of was dying, being killed." She said her sister called 911, but the police never came. She said they tried to leave, but could not "because the thing about it, if you had turned your back on a mob of crowd like that, what would have they done [sic]?" She said the crowd was "chanting" and said "someone was going to die tonight." She also said the boys had "their pocket bulging" and she "assumed it was weapons because they was screaming they had guns." She said the crowd was swinging at her, Alex, and Kenya. She later said she told Kenya to wait over by the car with Brenda's sister because Kenya did not have her glasses on and could not see. She sent Nick to get appellant, who was at Brenda's house a short distance away. Brenda testified that there were about 20 boys fighting with them and she was fending them off with the pool cue. When appellant arrived, he confronted one of the boys in the crowd who appeared ready to fight Alex. About that time, she saw a boy approach appellant. She saw the boy swing at her with a shiny object that she assumed was "brass knucks." But after she heard the gunshot, she thought the boy might have had a gun. She saw a blue flash in front of her as she heard the gunshot. She testified that she told the police she "heard a shot . . . and someone fell and so I assume someone shot." At trial, she said "I just heard two shots and . . . saw a blue flash. . . ." She did not tell the police she saw someone swinging something shiny at her head. She did not tell the police that she and her family were shot at as they were leaving in the car. She told the police that her sister, Kenya, Nick, and Alex were there, but she did not tell the police that appellant was there because she said they did not ask. Sheila Davis, appellant's aunt, testified that Nick and Kenya stopped fighting, but the boys that had gathered "wanted to jump on Alex." She said there were about four to six boys at first, but then the crowd grew to 25 to 30 or more. She was standing by the car, away from the crowd. She was afraid and called 911. She said the incident lasted about 20 minutes, but the police never came. She heard "one to two sound like, a firecracker or something, or a car backfire." She said it "probably was two. I'm not for sure." She said the crowd left and she heard more sounds like that as they were leaving, but the sounds might have been cars backfiring. She did not see Greer get shot, and she did not see appellant there. She said appellant did not get in the car with them. Appellant testified that he was awakened by Nick. He did not say what she told him, but he put his shoes on, grabbed a gun, and ran to the apartments, which were only a short distance away. When he got to the parking lot, he "observed like a nightmare." He saw "[s]o many young men out there. Some with shirts off, some with shirts on. A predominant red color, sagging." He said the guys used one hand to hold up their pants and the other was either tucked in their pockets or behind their backs. Based on "past experience, TV shows, movies . . . common sense," this meant to him that they had weapons. He estimated the crowd, which was 25 or 30, contained "around 15 of aggressive young men" and were surrounding his family in a semicircle. He told the crowd that this was "a family situation" and "[p]lease mind y'all business." He said that aggravated the boys even more and "they got more excited, more crunk." He said the crowd "was a cluster of five, six here. It's a cluster of three, four there. This is like — it's everywhere. It's all around us." He heard shouts from the crowd like, "But we are going to f-y'all up, stump y'all out, this is Village Oaks, blood, bitches, going to f-by stumping yo women. Don't know where y'all at. You ain't from around here." He said it was dark and he did not know who said that. Then he heard "a pop. It was a firearm," and "four or five individuals bomb rush[ed] us at the same time. . . ." He explained that "bomb rushing" meant "like attacking all at once." He said he saw someone throwing a punch at his mother and the person had a shiny metal object in his hand, and he "reacted. I pull my gun, and I — I fired. I fired my gun. I didn't want to hurt no one. I could not do that. I wanted to retreat. I believe in God -." He testified, "I shot because the guy was swinging in my mother's direction on her side where she was at with something in his hand. Everything happened so fast, I couldn't sit down and analyze everything that's happening right then, when things is just happening." He said everyone ran after Greer was shot. He said he did not get in the black car, but that he and Nick ran back to his mother's house, that he got his wife and child, they packed and left for Las Vegas, and he was in Las Vegas until after his wife's baby was born in late November. Appellant testified that he initially lied to one of the detectives and told him he was not in Dallas when the shooting occurred. He later told another detective about what happened, but he did not say anything about hearing more than one gunshot, and he did not tell the detective that he thought the boys in the crowd had guns. He told the detective that he shot one time and ran. He said he threw the gun away in a dumpster, and he left for Las Vegas a few hours after the shooting. He said the gun he used was a .40 caliber. He did not tell the police that the person he shot had a shiny object in his hand. In summary, the jury heard conflicting testimony about the number of gunshots, who was there, who said what, what appellant and his family were doing, what the crowd was doing, and who provoked the confrontation. Both the State's and the defense's evidence showed that Nick and Kenya had stopped fighting when the shooting occurred. And the defense's evidence showed that appellant's mother had the opportunity to leave the crowd and obtain a pool cue from her car and to tell Kenya to stand by the car with Sheila. Although appellant and Alex testified that they thought some of the young boys may have had guns, no one testified that they actually saw anyone else with a gun that night, except appellant. Only appellant and his mother testified that she had to use a pool cue to keep the crowd at bay. The eyewitnesses presented by the State said appellant left in the black car, and the defense witnesses said he did not. And much of the defense witnesses's testimony at trial conflicted with their statements to the police in key respects. The State's evidence showed that only one bullet casing was recovered at the scene and that it was a .40 caliber, the same caliber as the gun appellant used to shoot Greer. The jury resolved the conflicts in the evidence in favor of the State and convicted appellant of murder. Based on the evidence, the jury could have found beyond a reasonable doubt that the deceased was not attempting to use deadly force against appellant or his family and, consequently, appellant's use of deadly force was not justified. See Tex. Penal Code Ann. §§ 9.32(a), 9.33. The jury also could have found beyond a reasonable doubt that appellant's use of deadly force was not justified because he provoked Greer's use or attempted use of force and carried a weapon in violation of the law. See id. § 9.31(b)(5)(A). We conclude that the evidence is sufficient to support the jury's rejection of appellant's defensive claims. We resolve issues one and two against appellant.Jury Charge Error
In issues three, four, five, six, and seven, appellant contends that the jury charge contained errors requiring reversal of the conviction. We disagree.Standard of Review
When we review a claim of charge error, we first determine whether the jury charge contains error. See Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). If it does, but the defendant did not object to the charge or, as here, stated he had no objection, the appellant must show that the error caused him to suffer egregious harm. See Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). We do not reach the harm issue, however, unless we first find error in the charge. See Barrios, 283 S.W.3d at 350.Applicable Law
The trial court is required to give the jury "a written charge distinctly setting forth the law applicable to the case. . . ." Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007). The purpose of the jury charge is to instruct the jury on the law that applies to the case and to guide the jury in applying the law to the facts of the case. Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007); Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996); Caldwell v. State, 971 S.W.2d 663, 666 (Tex. App.-Dallas 1998, pet. ref'd) (citing Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995)). The abstract or definitional portions of the charge help the jury to understand the meaning of concepts and terms used in the application paragraphs of the charge. Caldwell, 971 S.W.2d at 666 (citing Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim. App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997)). A charge is adequate if it contains an application paragraph that authorizes a conviction under conditions specified by other paragraphs of the jury charge to which the application paragraph necessarily and unambiguously refers, or contains some logically consistent combination of those paragraphs. Caldwell, 971 S.W.2d at 666.Discussion
Issue Three
In issue three, appellant argues that the trial court erred because it submitted an application paragraph for murder without including the law of self-defense in the same paragraph. Appellant concedes that the trial court gave the jury instructions about self-defense and defense of others. But his complaint is that "the Trial Court erred by failing to order the charge in a logical manner." Appellant does not cite any authority stating that defensive issues must be contained in the same application paragraph as the charge on the elements of the offense. In this case, the jury charge contained an application paragraph on murder, immediately followed by instructions about justification and an application paragraph applying the defensive theories to the facts of the case. The application paragraphs effectively and clearly applied the law to the facts. The application paragraphs are "logically consistent" because they require the jury to first determine whether the State proved the offense of murder beyond a reasonable doubt and then whether the State disproved that appellant acted in self-defense. See Wingo v. State, 143 S.W.3d 178, 190 (Tex. App.-San Antonio 2004), aff'd, 189 S.W.3d 270 (Tex. Crim. App. 2006); Caldwell, 971 S.W.2d at 666-67. The charge as given guided the jury to determine whether appellant committed murder and then whether his conduct was justified. Accordingly, we conclude that the charge is "logically consistent" and does not contain error. We resolve issue three against appellant.Issue Four
In issue four, appellant argues that the trial court erred by not instructing the jury (1) on his right to use deadly force to prevent the imminent commission of murder and (2) that his belief that deadly force was immediately necessary should be presumed reasonable. See Tex. Penal Code Ann. §§ 9.32(a)(2)(B), (b). But a trial court is not required to sua sponte instruct the jury on a defensive theory, even if the issue is raised by the evidence. See Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998); Jackson v. State, 288 S.W.3d 60, 62-63 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd). Instead, the defendant must make a specific request to include the defensive issues in the charge. See Posey, 966 S.W.2d at 62; Jackson, 288 S.W.3d at 63. There is nothing in the record to indicate that appellant requested an instruction under either section 9.32(a)(2)(B) or section 9.32(b). And when the trial court asked whether appellant had any objections to the charge, he stated, "No, Your Honor." Consequently, appellant did not preserve this issue for our review. See Jackson, 288 S.W.3d at 63, 64 n. 2. We resolve issue four against appellant.Issue Five
In issue five, appellant argues that the trial court erred by including an instruction to the jury that limited his right of self-defense. He complains about the following instruction:The use of force against another is not justified if the actor sought explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was prohibited by law from possessing a firearm.A charge limiting a defendant's right of self-defense is properly given when (1) self-defense is an issue, (2) there are facts in evidence that show the defendant sought an explanation from or discussion with the victim concerning their differences, and (3) the defendant was unlawfully carrying a weapon. Tex. Penal Code Ann. § 9.31(b)(5)(A); Lee v. State, 259 S.W.3d 785, 789 (Tex. App.-Houston [1st Dist.] 2008, pet. ref'd). Appellant argues that there is no evidence in the record of the second factor. We disagree. The evidence showed that appellant's mother asked appellant to come to the parking lot to help with the situation occurring there. Appellant grabbed a gun and ran to the apartment complex. When he arrived at the parking lot, he told the crowd that the fight was family business, it was not their business, and he asked the crowd to leave. Greer was among the crowd. And there is some evidence that appellant and Greer confronted each other and exchanged words before they started to fight and the shooting occurred. We conclude that the record contains evidence to support the trial court's decision to instruct the jury under section 9.31(b)(5)(A) and that the charge does not contain error. See Lee, 259 S.W.3d at 790. We resolve issue five against appellant.
Issues Six and Seven
In issues six and seven, appellant argues that the trial court erred by instructing the jury on the statutory duty to retreat. He contends that the instruction was a comment on the weight of the evidence. He complains specifically about the following instruction in the jury charge:In determining whether an actor reasonably believed that the use of deadly force was immediately necessary, you may not consider whether the actor failed to retreat if the actor had a right to be present at the location where the deadly force was used, the actor did not provoke the person against whom the deadly force was used, and the actor was not engaged in criminal activity at the time the deadly force was used.Appellant argues that he was not required to retreat because the undisputed evidence showed that he had a right to be in the parking lot and that he did not provoke Greer's use or attempted use of force. The law regarding self-defense and the duty to retreat provides:
(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.
(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.Tex. Penal Code Ann. § 9.32(c)-(d). Appellant does not address the third requirement of subsection (c), that is, that he was not engaged in criminal activity at the time the deadly force was used. See id. § 9.32(c). It is undisputed that appellant possessed a firearm in violation of the law at the time he used deadly force because he was a convicted felon prohibited by law from possessing a firearm. See id. § 46.04(a). And contrary to appellant's assertion, the evidence at trial was conflicting about whether appellant provoked Greer. Because appellant did not satisfy the requirements of subsection (c), the presumption that he was not required to retreat did not apply in this case. See id. § 9.32(c). We conclude that the trial court did not err by instructing the jury about appellant's failure to retreat. See id. We resolve issues six and seven against appellant.