Hall v. State

Full title: JOHN EDWARD HALL, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Apr 11, 2011

No. 05-09-01368-CR (Tex. App. Apr. 11, 2011)

Opinion

No. 05-09-01368-CR

Opinion issued April 11, 2011. DO NOT PUBLISH. Tex. R. App. P. 47

On Appeal from the 363^rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-63139-W.

Before Justices MOSELEY, BRIDGES, and O'NEILL.

MEMORANDUM OPINION

Opinion By Justice BRIDGES.

Appellant John Edward Hall appeals from his conviction for murder and accompanying sentence of seventy years' confinement. In eight issues, appellant argues (1) the evidence is factually insufficient to support a finding that appellant's conduct was not justified, and that the trial court erred: (2) by failing to instruct the jury on the presumption of reasonable belief; (3) by failing to apply self-defense in the application paragraph of the murder charge; (4) by failing to instruct the jury that a person is justified in using deadly force against another to prevent the other's imminent commission of murder; (5) by providing the jury with an inapplicable statutory limitation on his right to self-defense; (6) by instructing the jury pursuant to section 9.32(c) of the penal code; (7) by incorrectly instructing the jury pursuant to section 9.32(d) of the penal code; and (8) by informing the jury about good conduct time. We affirm.

Background

Appellant and Marvin Davis were acquaintances, involved in selling illegal drugs. According to trial witnesses, appellant and Davis appeared to be competitors in drug trafficking. On November 17, 2008, Tu Huynh was standing outside his place of business in central Dallas and observed Davis as he walked northwesterly along Orleans Street. According to Huynh, appellant approached Davis from the rear in a black Ford Crown Victoria. Appellant stopped the car, jumped out, and shouted at Davis. Davis turned to look at appellant, who began intermittently firing a handgun at Davis. Appellant had the gun ready to shoot as he exited the car. Davis did not respond, but started to run away from appellant. According to Huynh and another eye witness, Robin Criss, the chase seemed to end as Davis sat or fell down along the north curb of Louise Avenue. But, as appellant approached Davis and continued to shoot at him, Davis sought to escape until he fell dead in a field on the north side of Louise Avenue. Renee Peters, a drug customer of appellant and Davis, saw appellant shoot Davis. She described what she witnessed as follows:

Q: Did you see [appellant] get out of his car or had he already gotten out of his car?

A: He was already out.

Q: And whenever he was already out of the car, did you see . . .

A: He was shooting.

Q: Was the shooting like immediate, or was it delayed where they had a conversation or what?

A: No conversation.

. . .

Q: And what was [Davis] doing whenever he's being shot at?

A: He would try and run away.

Q: Where was he trying to run away to?

A: Anywhere . . . I mean, he was being shot at.

. . .

Q: So let's talk about where was [appellant] standing whenever he shot [Davis] in the forehead.

A: Like standing up over him.

Q: Standing up over him, pointed the gun down, shot him in the forehead. Is that what you're telling us?

A: Yes, I am.

. . .

Q: When [Davis] is laying down there on the ground before he's shot in the forehead, did he appear to have other injuries on him? Was he already bleeding?

A: Shot up here.

Q: You're pointing to your shoulder?

A: All up here.

Q: And your-like stomach and chest? You saw those shots to his body, shoulder?

A: Uh-huh.

Q: And then this [appellant], after all that, he's on the ground, still shot him to the head?

A: Yes.

Following the shooting, appellant returned to his car and left the scene. He was arrested on November 18 and gave the police varying descriptions of the shooting, but acknowledged he disposed of his gun by throwing it in the Trinity River. At trial, appellant, relying on a theory of self-defense, testified that he was on foot when Davis came up from behind and verbally threatened to kill him. Appellant said he then observed Davis reach for a gun, so appellant also drew his weapon, a 40-caliber handgun that he was illegally carrying. He began exchanging gunfire with Davis, claiming Davis was the first to fire. Appellant admitted he shot at Davis at least ten times and acknowledged he chased Davis from behind during some of the gunfire. Dr. Janice Townsend-Parchman was present for the autopsy of Davis and reviewed the autopsy report. She testified Davis was shot a total of eight times, some fired at close range. Several of those shots would individually have been life-threatening. The shots to Davis's head were presumably at or near the end of the chase, as they necessarily caused instantaneous death. The police recovered a trail of empty shell casings from the same gun along the path taken by appellant and Davis. However, the police did not find appellant's gun or any evidence that a second gun was fired at the location. The jury convicted appellant of murder, enhanced by his prior felony convictions, and assessed his punishment at seventy years' confinement. The trial judge entered the sentence, and this appeal ensued.

Analysis

In his first issue, appellant argues the evidence was factually insufficient to support a finding that appellant's conduct was not justified. We note the Texas Court of Criminal Appeals has overruled Clewis v. State, ¹ holding the Jackson v. Virginia ² standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.). Therefore, we will address appellant's issue under the Jackson v. Virginia standard. 443 U.S. 307. In reviewing a challenge to the sufficiency of the evidence, 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, 443 U.S. at 319; Brooks, 323 S.W.3d at 894-95. We are required to 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 ("a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution"). Appellant contends the jury's rejection of his claim of self-defense was so against the great weight and preponderance of the evidence that the jury's conclusion that his conduct constituted murder was manifestly unjust. Under the law of self-defense, 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 Tex. Penal Code Ann. § 9.31 (West Supp. 2010). "Deadly force" is force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury. Tex. Penal Code Ann. § 9.01(3) (West Supp. 2010). A person is justified in using deadly force against another if he would be justified in using force against the other under section 9.31 and when and to the degree the actor reasonably believes the deadly force is immediately necessary to protect the actor against the other's use or attempted use of deadly force. Tex. Penal Code Ann. § 9.32(a)(1)(2)(A) (West Supp. 2010). Appellant admitted to firing his weapon at least ten times at or in the direction of Davis. Eight of those shots fired hit Davis, several of which were life-threatening. At least some of the shots occurred while appellant chased Davis. Both Huynh and Peters testified appellant immediately started shooting at Davis. There was no conversation between appellant and Davis before shots were fired. Peters testified appellant hovered over Davis, who was already on the ground from being shot, and shot him again in the forehead. Although there is some evidence from appellant that Davis was the first aggressor, the police found no evidence of a second weapon. "The right of self-defense commences when the necessity arises, continues as long as there is real or apparent danger, and ceases when the danger disappears." See 21 TEX. JUR. 3D Criminal Law § 1921 (2001). The record before us indicates appellant continued to use deadly force to assure not only the incapacity of Davis, but also his death by shooting him many times after Davis had been severely wounded or incapacitated. Appellant's testimony that he feared for his life "while all of this [was] going on" was not enough to suggest a legal justification for all of his conduct. Some credible evidence of appellant's state of mind at the time the fatal shots were fired was essential, otherwise no juror could rationally conclude that appellant formed any belief that he then needed to use deadly force to protect himself. Reed v. State, 703 S.W.2d 380, 384-85 (Tex. App.-Dallas 1986, pet ref'd); see also Mata v. State, 141 S.W.3d 858, 863 (Tex. App.-Corpus Christi 2004), rev'd on other grounds, 226 S.W.3d 425 (Tex. Crim. App. 2007). Appellant's claim that his continued use of force was reasonably believed to be immediately necessary to protect himself, even when Davis had discontinued any alleged threat, does not meet the burden imposed on appellant by section 9.32(a)(2)(a). See Tex. Penal Code Ann. § 9.32(a)(2)(a) (West Supp. 2010). 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. Thus, the jury could have rationally determined appellant's ultimate conduct was not in self-defense. See, e.g., Riddle v. State, 888 S.W.2d 1, 6 (Tex. Crim. App. 1994) (no testimony of continued threat by victim, thus hitting him the head another 14 times could not be justified); Morgan v. State, 545 S.W.2d 811, 815 (Tex. Crim. App. 1977) (alleged danger passed at time force was used). We, therefore, overrule appellant's first issue. In his second issue, appellant argues the trial court erred by failing to instruct the jury on the presumption of reasonable belief. Section 9.32(b)(3) states that an actor's belief under (a)(2) that the deadly force was immediately necessary is presumed to be reasonable if the actor "was not otherwise engaged in criminal activity. . . ." See Tex. Penal Code Ann. § 9.32(b)(3) (West Supp. 2010). Here, however, appellant admitted to carrying a gun in public and, therefore, as a convicted felon, was engaged in criminal activity. See Tex. Penal Code Ann. § 46.02(a) (West Supp. 2010) (Unlawful Carrying Weapons); Id. at 46.04(a) (Unlawful Possession of a Firearm). Therefore, the trial court did not err by failing to instruct the jury on the presumption of reasonable belief. We overrule appellant's second issue. We next turn to appellant's third issue in which he complains of charge error, arguing the trial court erred by failing to apply self-defense in the application paragraph of the murder charge. Our first duty in analyzing a jury charge issue is to decide whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Then, if we find error, we analyze that error for harm. Id. Preservation of charge error does not become an issue until we assess harm. Id. The degree of harm necessary for reversal depends on whether the appellant preserved the error by objection. Id. Under Almanza, ³ jury charge error requires reversal when the defendant has properly objected to the charge and we find "some harm" to his rights. 686 S.W.2d at 171. When the defendant fails to object or states that he has no objection to the charge, we will not reverse for jury charge error unless the record shows "egregious harm" to the defendant. Ngo, 175 S.W.3d at 743-44. The first two application paragraphs of the charge state:

Now, bearing in mind the foregoing instructions, if you find and believe from the evidence beyond a reasonable doubt that on or about [the] 17^th day of November, A.D., 2008, in the County of Dallas and State of Texas, the [appellant] did unlawfully then and there intentionally or knowingly cause the death of Marvin Davis, an individual, hereinafter called deceased, by shooting the deceased with a firearm, a deadly weapon, you will find the defendant guilty of the offense of murder and so say by your verdict.

If you do not so find and believe from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict "Not Guilty."

Although we agree with appellant that self-defense is not included in these paragraphs, the record reflects the charge continues with multiple instructions on when the use of deadly force is justified, followed by a third application paragraph:

Now, if you find from the evidence beyond a reasonable doubt that the defendant, John Edward Hall, did kill the said Marvin Davis by shooting the deceased with a firearm, a deadly weapon, as alleged in the indictment, but you further find from the evidence, or you have a reasonable doubt thereof, that, viewed from the standpoint of the defendant at the time, from the words or conduct, or both of Marvin Davis it reasonably appeared to defendant that his life was in danger and there was created in defendant's mind a reasonable expectation or fear of death or serious bodily injury from the use of unlawful deadly force at the hands of Marvin Davis, and that the defendant, acting under such apprehension and reasonably believing that the use of deadly force, by his intervention, on his part was immediately necessary to protect himself against Marvin Davis's use or attempted use of unlawful deadly force and that he, therefore, shot the deceased with a firearm, a deadly weapon, said Marvin Davis, then you will find the defendant not guilty; or if you should have a reasonable doubt as to whether the defendant was acting in defense of himself on said occasion under such foregoing circumstances, then you should give the defendant the benefit of that doubt and find him not guilty.

We, therefore, conclude the trial court properly included self-defense in an application paragraph within the charge, and there is no error. See Ngo, 175 S.W.3d at 743. We overrule appellant's third issue. In his fourth issue, appellant argues the trial court erred by failing to instruct the jury that a person is justified in using deadly force against another to prevent the other's imminent commission of murder. Although the trial court charged the jury on the law of self-defense under section 9.32(a)(1)(2)(A) of the penal code, appellant argues he was entitled to an instruction under the independent theory of self-defense set forth in section 9.32(a)(1)(2)(B). However, when the trial court asked the parties whether there were any objections or requests for additions to the charge, appellant's counsel responded: "None from the Defense." The trial court is not required to sua sponte submit a defensive theory, and a defendant must make a request before he is entitled to claim any error in omission from the charge. See Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998); see also Jackson v. State, 288 S.W.3d 60, 64 n. 2 (Tex. App.-Houston [1^st Dist.] 2009, pet. ref'd). We, therefore, overrule appellant's fourth issue. In his fifth issue, appellant argues the trial court erred by providing the jury with an inapplicable statutory limitation on his right to self-defense. Appellant specifically complains of 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 unlawfully carrying a weapon.

A charge limiting a defendant's right of self-defense is properly given where (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. Lee v. State, 259 S.W.3d 785, 789 (Tex. App.-Houston [1^st Dist.] 2008, pet. ref'd). Appellant argues, and we agree, the record does not contain evidence of the second factor. The record, instead, reflects appellant started shooting at Davis without first having a conversation with Davis. The trial court, therefore, erred. Because appellant failed to object to the instruction at trial, we now consider whether the error resulted in egregious harm. Ngo, 175 S.W.3d at 743-44. To determine the degree of harm, we consider "the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Alamanza, 686 S.W.2d at 171. In our review of the record with regard to appellant's first issue, we have already determined the jury was reasonably justified in rejecting appellant's claim of self-defense. See Jackson, 443 U.S. 307. We conclude that to be the case, whether or not the trial court included a limiting instruction on appellant's claim of self-defense. Therefore, any improper limitation on a defense that was reasonably rejected by the jury was harmless. See Alamanza, 686 S.W.2d at 171. We now turn to appellant's sixth and seventh issues in which he claims the trial court erred by instructing the jury pursuant to sections 9.32(c) and (d) of the penal code. Appellant complains of the following instruction:

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.

The trial court pulled the foregoing language from section 9.32(c) of the penal code, while section 9.32(d) of the penal code states that "in determining whether an actor described by [the foregoing] 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." See Tex. Penal Code Ann. §§ 9.32(c), (d) (West Supp. 2010). As we have already noted with regard to appellant's second issue, appellant, a convicted felon, admitted to carrying a gun in public and, therefore, was engaged in criminal activity at the time deadly force was used. See Tex. Penal Code Ann. § 46.02(a) (West Supp. 2010) (Unlawful Carrying Weapons); Id. at 46.04(a) (Unlawful Possession of a Firearm). The evidence of appellant engaging in criminal activity, therefore, properly invoked the instruction given at trial. See Tex. Penal Code Ann. §§ 9.32(c), (d) (West Supp. 2010). Thus, the trial court did not err. Ngo, 175 S.W.3d at 743. We overrule appellant's sixth and seventh issues. In his eighth issue, appellant complains the trial court erred by informing the jury about good conduct time. Specifically, appellant argues he was ineligible for good conduct time, and the trial court improperly instructed the jury to the contrary. The charge at punishment tracked the language of article 37.07, section 4(a), allowing the jury to consider good conduct time. See Tex. Code Crim. Proc. Ann. Art. 37.07, § 4(a) (West 2006). However, because appellant was convicted of murder, he is precluded from receiving good conduct time credit. Tex. Gov't Code Ann. § 508.149 (West Supp. 2010). Appellant contends the instant case involves a violation of article 36.14, requiring the trial court to accurately instruct the law applicable to the case. See Tex. Code Crim. Proc. Ann. Art. 36.14 (West 2007). However, in order for us to review the alleged violation under article 36.14, "[a]ll objections to the charge and to the refusal of special charges shall be made at the time of the trial." Tex. Code Crim. Proc. Ann. Art. 36.19 (West 2006). Appellant did not object to the charge given at the punishment phase of trial. Therefore, appellant waived his right to complain on appeal. Id. We overrule appellant's eighth issue. Having overruled all of appellant's issues, we affirm the judgment of the trial court.