Opinion
NO. 14-15-01059-CR
06-20-2017
JOSEPH LEONARD ELLIS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court Harris County, Texas
Trial Court Cause No. 1474975
MEMORANDUM OPINION
A jury convicted Joseph Leonard Ellis of murder and sentenced him to an enhanced punishment of confinement for fifty years. In his sole issue on appeal, appellant claims the trial court erred by refusing to instruct the jury on self-defense. Because appellant was not entitled to the instruction, we affirm.
I. Background
The complainant Ronald Willis, Sr. ("Willis") and Josephine Edwards had two children together, a son and a daughter. After Willis and Edwards ended their relationship, their grown children lived with Edwards in an apartment. In August 2013, Edwards was dating appellant.
Late in the evening on August 6, 2013, Ronald Willis, Jr. ("Ronald"), drove his father, Willis, and his maternal uncle, Donald Anderson, to Edwards' apartment. The purpose of the visit was to surprise Edwards for her birthday with groceries and to allow Willis to discuss with Edwards burial arrangements for Willis' girlfriend who had recently passed away.
Appellant was at Edwards' apartment on August 6, 2013, when Ronald, Willis, and Anderson arrived. Appellant was upset by the unexpected visit and asked Willis to leave. Appellant held a large stick in his hand as he spoke with Willis. When Willis refused to leave the apartment, appellant called the police to report a disturbance. Appellant picked up a flashlight, holding both the stick and flashlight while speaking with Willis.
After appellant called the police, Anderson left the apartment and waited in the car. Edwards tried to convince Ronald and Willis to leave. When they did not, Edwards went to a neighbor's apartment. Thereafter, Ronald left the apartment to tell Anderson that Willis was about ready to leave, leaving appellant and Willis alone in the apartment. After waiting at the car five or ten minutes for Willis, Ronald began to walk back to the apartment to find out what was keeping him. As Ronald walked around the side of the building, he heard a loud "whop" noise. Ronald saw his father lying on the ground with the appellant standing over him holding the large stick. Ronald then observed appellant strike his father with the stick. Ronald exclaimed, "Oh, my God, you hit my dad." Appellant turned to Ronald and said that he was "next." Ronald ran back to the parking lot and called the police.
The Houston Police Department responded to the call. When officers arrived, they saw the appellant standing on the front porch of the apartment with a large stick in his hand. The officers observed Willis lying in the grass unconscious with a large pool of blood expanding behind his head. Appellant was ordered to drop the stick and was taken into police custody. Willis was transported to a nearby hospital where he died. Willis had sustained severe blunt head and neck trauma: his left cheekbone was fractured, his skull was fractured behind his left ear, and a bone in his larynx was fractured. Police did not locate any witnesses; however, a 33-inch stick and a 12-inch flashlight were recovered. Blood was observed inside and outside the apartment.
Appellant gave police a video recorded statement claiming that as he held the stick and the flashlight, Willis said that he was "going to make [appellant] use that stick. . . ." and "[h]e scared me, man." According to appellant, Willis was acting strange; he was on his knees, slapping the floor and begging appellant to hit him. Appellant claimed that Willis came towards him so he hit Willis across the face with the flashlight. Appellant asserted that he ran outside the apartment because he was worried about becoming trapped inside. Appellant alleged that Willis followed him out of the apartment and put his fists up to fight. In response, appellant claimed he threw the flashlight at Willis, hitting Willis' head. As Willis began to fall to the ground, appellant struck him again in the face with the stick. Appellant claimed he did not know why he hit Willis again, but that he was overcome by emotion.
Appellant was charged with the murder of Willis. The charge was enhanced by two prior felony convictions. He pled "not guilty," and the case was tried to a jury. Appellant's video recorded statement was admitted into evidence; however, appellant did not testify at trial. Appellant argued that he was entitled to a jury instruction on the law of self-defense because it was raised by appellant's description of the circumstances surrounding the homicide in his recorded statement. The trial court denied appellant's request. On December 11, 2015, the jury found him guilty and assessed punishment at fifty years in prison. Appellant timely filed this appeal.
II. Analysis
In a single question, appellant asks whether the trial court reversibly erred when it denied a requested instruction on the law of self-defense.
A. Standard of review.
We review jury charge issues under a two-step process, considering first whether the trial court erred by failing to give the instruction. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If the trial court did err, we analyze that error for harm under the procedural framework of Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). See Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). Thus, we first consider whether the trial court erred in failing to instruct the jury on self-defense.
B. Appellant was not entitled to self-defense instruction.
The trial court must give a requested instruction on every defensive issue that is raised by the evidence. Gonzalez v. State, 474 S.W.3d 345, 349 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd) (citing Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. Crim. App. 2013)). A defensive issue is raised by the evidence if there is some evidence, regardless of its source, on each element of a defense that, if believed by the jury, would support a rational inference that the element is true. See Shaw v. State, 243 S.W.3d 647, 657-58 (Tex. Crim. App. 2007).
A defendant's testimony alone is sufficient to raise a defensive issue requiring an instruction in the jury charge even if based on beliefs which appear unreasonable and unjustified, and even if the defendant may have used more force than necessary under the circumstances. Hayes v. State, 728 S.W.2d 804, 807-08 (Tex. Crim. App. 1987). Whether the defendant's actions are reasonable is a fact question which the jury must answer from the defendant's standpoint. Ex parte Drinkert, 821 S.W.2d 953, 955 (Tex. Crim. App. 1991).
In analyzing whether a defensive issue has been raised by the evidence, we have stated a trial court
. . . must rely on its own judgment, formed in the light of its own common sense and experience, as to the limits of rational inference from the facts that have been proven. Id. at 658. The defendant is entitled to an instruction on a defense when there is legally sufficient evidence to raise the defense, regardless of whether the evidence supporting the defense is weak or contradicted, and even if the trial court is of the opinion that the evidence is not credible. Id. Whether the record contains such evidence is a question of law, which means that we do not apply the usual rule of appellate deference to the trial court's ruling. Id. "Quite the reverse, we view the evidence in the light most favorable to the defendant's requested submission." Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006).Gonzalez, 474 S.W.3d at 349. A person is justified in using force against another when and to the degree he believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Tex. Penal Code § 9.31. A person is justified in using deadly force against another as follows:
(1) if he would be justified in using force against the other under Section 9.31 of this code;
(2) if a reasonable person in the actor's situation would not have retreated; andId. § 9.32. The State contends that there is no evidence to justify appellant's use of deadly force against Willis. We agree.
(3) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to protect himself against the other's use or attempted use of unlawful deadly force; or
(B) to prevent the other's imminent commission of aggravated kidnapping, murder, rape, aggravated rape, robbery, or aggravated robbery.
It was unreasonable for appellant to believe deadly force was immediately necessary. It is undisputed that Willis was unarmed when he visited Edwards at her apartment. Willis arrived with his and Edwards' son, Ronald, and Edwards' brother, Anderson. Willis never stated he was going to kill or attempt to kill appellant. Willis and appellant had no violent history that would lead appellant to believe his life was in danger. Willis, Rodney, and Anderson surprised Edwards with groceries for her birthday and Willis sought Edwards' advice on burial services for his deceased girlfriend. Thus, at no time did appellant need to protect himself against Willis' use or attempted use of unlawful deadly force. See Werner v. State, 711 S.W.2d 639, 644 (Tex. Crim. App. 1986) ("In absence of evidence of use or attempted use of deadly force by the deceased, the statutory defense permitted by § 9.32 is not available, and a defendant is not entitled to a jury instruction."), modified on other grounds, Hamel v. State, 916 S.W.2d 491 (Tex. Crim. App. 1996); Cerda v. State, 557 S.W.2d 954, 958 (Tex. Crim. App. 1977) ("The evidence at bar raises no issue as to any attack or apparent attack upon the person of the appellant by the deceased nor does it raise any reasonable expectation or fear of such an attack.").
Moreover, even if Willis was behaving erratically as alleged by appellant, nothing in the record reveals any basis for appellant to reasonably believe that he needed to use deadly force against Willis. See Kirkpatrick v. State, 633 S.W.2d 357, 358 (Tex. App.—Fort Worth 1982, pet. ref'd) (concluding that appellant was not entitled to use deadly force when victim "hollered" at him and threatened to "kick his ass"); see also Schiffert v. State, 257 S.W.3d 6, 14 (Tex. App.—Fort Worth 2008, pet. dism'd) (holding that a punch could not demonstrate attempt to use deadly force). Thus, even if Willis taunted appellant to use the stick, verbal provocations alone do not justify appellant's use of deadly force. See Tex. Penal Code § 9.31(b)(1); Hamel v. State, 916 S.W.2d 491, 494 (Tex. Crim. App. 1996).
In sum, the evidence in this case, viewed in the light most favorable to appellant, simply does not warrant a charge as to self-defense. See Werner, 711 S.W.2d at 644; see also Cerda, 557 S.W.2d at 958; Kirkpatrick, 633 S.W.3d at 358. As such, the trial court did not err in refusing to include the instruction. We overrule appellant's sole issue on appeal.
III. Conclusion
The judgment of the trial court is affirmed.
/s/ John Donovan
Justice Panel consists of Justices Christopher, Jamison, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).