Opinion
No. 10-05-00267-CR
Opinion delivered and filed September 13, 2006. DO NOT PUBLISH.
Appeal from the 40th District Court, Ellis County, Texas, Trial Court No. 28832CR. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
Timothy Lamont Lewis was indicted for murder to which he pleaded not guilty. The jury found Lewis guilty of manslaughter and assessed a fifteen-year sentence. Lewis now appeals, arguing that the evidence does not support the conviction, admission of a photograph resulted in prejudicial error, and the court improperly limited the scope of his voir dire. We affirm.
Sufficiency of the Evidence
In his first point of error, Lewis argues that the evidence is factually insufficient to support the jury's rejection of his self-defense claim. Specifically, Lewis claims he acted out of fear of death or serious bodily injury and he attempted to retreat. The defendant must first produce "some evidence" supporting self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003); In re S.S., 167 S.W.3d 108, 114 (Tex.App.-Waco 2005, no pet.). Once the defense is raised, the State "bears the burden of persuasion to disprove the raised defense." Id. The State need not "affirmatively produce evidence which refutes the self-defense claim," but must "prove its case beyond a reasonable doubt." Shaw v. State, 995 S.W.2d 867, 868 (Tex.App.-Waco 1999, no pet). Thus, in conducting a factual sufficiency review, we consider all the evidence in a "neutral light" and determine whether the fact finder was "rationally justified in finding guilt beyond a reasonable doubt." Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004).[T]here are two ways in which the evidence may be [factually] insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met.Id. at 485. A person commits manslaughter by recklessly causing an individual's death. See TEX. PEN. CODE ANN. § 19.04(a) (Vernon 2003). Self-defense is justified when a person "reasonably believes" that "force is immediately necessary to protect himself against the other's use or attempted use of unlawful force." TEX. PEN. CODE ANN. § 9.31(a) (Vernon 2003). The use of deadly force is warranted only where "self-defense is justified under Section 9.31, a reasonable person would not have retreated, and when deadly force is reasonably necessary to protect against another's use or attempted use of deadly force." Bumguardner v. State, 963 S.W.2d 171, 173 (Tex.App.-Waco 1998, pet ref'd) (emphasis original); see TEX. PEN. CODE ANN. § 9.32(a)(1)-(3) (Vernon 2003). According to the evidence, when Cumeshia Branch and Wilmon Davis, Jr. arrived at Lewis's home, Branch used a metal pipe to break the windows in Lewis's home. Lewis opened the front door, pointed a gun outside, and ordered Branch to leave. Davis then reached for the gun and a struggle ensued between Davis and Lewis. Lewis's neighbor, Wendell Richardson, Jr., intervened in the fight. During this altercation between Richardson and Davis, the gun fired, the bullet struck Davis's head, and he died at the scene. Lewis testified he was concentrating on Branch. Richardson testified that Lewis was standing next to him when the gun fired. Bruenta Williams and Nicholas Morris testified that the gun fired as Lewis attempted to punch Davis. Williams added that this occurred because Davis first tried to punch Lewis. Morris did not see Lewis's finger on the trigger. Richardson did see Lewis's finger on the trigger after the gun fired. The medical examiner established that the gun was fired no less than two feet from Davis's head. Lewis testified that he feared Branch and Davis planned to cause him death or serious bodily injury. He further claimed that throughout the incident, he attempted to retreat to the inside of his home, but Branch stood in a "baseball stance" with the pipe and blocked his exit. Morris testified that Branch stood near a car, but later testified that Branch was chasing Lewis with the pipe. According to Williams, Branch stood still while holding the pipe. The evidence is conflicting as to (1) the circumstances surrounding the gun's firing; (2) Lewis's conduct during the altercation between Davis and Richardson; and (3) whether Branch blocked Lewis's exit such that no other avenues of retreat existed. However, it was the "exclusive province" of the jury to resolve these conflicts. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000); see Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998). In doing so, the jury could reasonably conclude that Lewis did not act in self-defense. First, deadly force was unnecessary under the circumstances. Regardless of whether Lewis fired the gun intentionally or recklessly, no evidence indicates that Davis either possessed a weapon or attempted to use deadly force against Lewis. Rather, Lewis was armed and exercised deadly force where a reasonable person in Lewis's position would have used nondeadly force, if needed. See Kelley v. State, 968 S.W.2d 395, 399 (Tex.App.-Tyler 1998, no pet). A rational jury could have found that it was not reasonable for Lewis to believe that the use of deadly force was immediately necessary. See Bumguardner, 963 S.W.2d at 174. Second, Davis did not use unlawful deadly force against Lewis. It was up to the jury to decide whether Lewis injected himself into the fight between Davis and Richardson or whether he responded to an attack by Davis. Either way, at the time the gun fired, Davis did not have a weapon; thus Lewis could not have reasonably feared for his life. The jury was free to reject Lewis's claim that Davis intended to cause him death or serious bodily injury. See Saxton v. State, 804 S.W.2d 910, 913-14 (Tex.Crim.App. 1991). Third, a reasonable person would have retreated. Whether Branch blocked Lewis's front exit does not eliminate other avenues of escape, such as the back of the house. Nevertheless, either by firing the gun or striking Davis with the gun, Lewis chose to exercise force rather than utilize any other available means of retreat. Because it was for the jury to decide whether Lewis's "failure to retreat was reasonable under the circumstances," the jury could have concluded that a reasonable person in Lewis's situation would have retreated. Alvarado v. State, 821 S.W.2d 369, 373 (Tex.App.-Corpus Christi 1991, no writ); see TEX. PEN. CODE ANN. § 9.32(a)(2). Therefore, a rational jury could conclude, beyond a reasonable doubt, that Lewis did not act in self-defense. See id; see also TEX. PEN. CODE ANN. § 9.32(a)(3); Bumguardner, 963 S.W.2d at 174; Wesbrook, 29 S.W.3d at 111; Mosley, 983 S.W.2d at 254. The evidence is not such that the beyond-a-reasonable-doubt standard could not have been met, but is factually sufficient to support the jury's rejection of Lewis's claims of self-defense beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484-85; see also Saxton, 804 S.W.2d at 914. We overrule Lewis's first point of error.
Admissibility of the Autopsy Photograph
Lewis contends in his second point that admission of an autopsy photograph was improper because the photograph's probative value is substantially outweighed by the danger of unfair prejudice. A court's determination of the probative and prejudicial value of evidence is reviewed for abuse of discretion. See Jones v. State, 944 S.W.2d 642, 651 (Tex.Crim.App. 1996). In deciding the probative and prejudicial value of a photograph, we consider "the number of exhibits offered, their gruesomeness, their detail, their size, whether they are in color or black and white, whether they are close-up, and whether the body depicted is clothed or naked." Wyatt v. State, 23 S.W.3d 18, 29 (Tex.Crim.App. 2000). We also consider the "availability of other means of proof" and the individual circumstances of each case. Id. Autopsy photographs are admissible unless they "depict mutilation of the victim caused by the autopsy itself." Rojas v. State, 986 S.W.2d 241, 249 (Tex.Crim.App. 1998). Alterations caused by the autopsy are "of minor significance if the disturbing nature of the photograph is primarily due to the injuries caused by the appellant." Hayes v. State, 85 S.W.3d 809, 816 (Tex.Crim.App. 2002). During the guilt/innocence phase, the State presented a single autopsy photograph of the gunshot wound to Davis's head. This close-up photograph depicted lacerations surrounding the wound. The medical examiner testified that because of the angle and head curvature, the bullet created these lacerations upon entering Davis's head. Thus, the wound portrayed in the photograph constituted the entire entrance wound. For this reason, the photograph does not depict that Davis's wound was mutilated by the autopsy. See Rojas, 986 S.W.2d at 249. As the medical examiner's testimony indicates, the "disturbing nature" of the photograph is a direct result of the injuries inflicted by Lewis. Hayes, 85 S.W.3d at 816. Furthermore, this photograph assisted the medical examiner in explaining her testimony regarding the distance from which the gun was fired. See Escamilla v. State, 143 S.W.3d 814, 826 (Tex.Crim.App. 2004); see also Long v. State, 823 S.W.2d 259, 271 (Tex.Crim.App. 1991). In light of the fact that Lewis planned to contest "manner and means," distance, and cause of death, this photograph was certainly the "subject of testimony at trial." Williams v. State, 958 S.W.2d 186, 195-96 (Tex.Crim.App. 1997). Because this single photograph depicts nothing more than the gruesomeness of the actual wound caused by Lewis and because it assisted the medical examiner's testimony, its probative value was not substantially outweighed by the danger of unfair prejudice. See Narvaiz v. State, 840 S.W.2d 415, 429-30 (Tex.Crim.App. 1992); see also Escamilla, 143 S.W.3d at 826; Long, 823 S.W.2d at 271; Williams, 958 S.W.2d at 196. The court did not abuse its discretion by admitting the photograph. See Jones, 944 S.W.2d at 651. We overrule Lewis's second point of error.Limiting the Scope of Voir Dire
Lewis's third point complains that the court improperly limited the scope of voir dire because the following question addressed an "issue and difference in intent, recklessness, negligence and self-defense:"DEFENSE COUNSEL: So in a situation where, let's say, you're at a family reunion, something like that, and you're outside and somebody pulls up. Three people walk out: A, B, and C. And they start approaching you, and one starts cursing at you, saying some foul language. Does anybody feel like they have the right to use force against that person?
THE STATE: Object.
THE COURT: Sustained.
DEFENSE COUNSEL: Okay.
THE COURT: Can't commit them to what they would do or would not do in a particular fact situation.
DEFENSE COUNSEL: In a situation like that, the law says words alone, that's not enough. And specifically it says use of force against another is not justified in response to just a verbal provocation. Takes more than that.Does any body have any questions on that? Don't understand self-defense, deadly force? Okay. I just kind of want to switch back over to punishment . . . We review a court's limitation of voir dire for abuse of discretion. See Sells v. State, 121 S.W.3d 748, 755 (Tex.Crim.App. 2003); see also Rogers v. State, 44 S.W.3d 244, 248 (Tex.App.-Waco 2001, no pet). A court abuses its discretion by disallowing the answer to a proper question. See Sells, 121 S.W.3d at 755-56; see also Allridge v. State, 762 S.W.2d 146, 163 (Tex.Crim.App. 1988). A proper question seeks a "juror's views on an issue applicable to the case," while an improper question commits the "juror to a particular verdict based on particular facts." Sells, 121 S.W.3d at 756. Where a court places no absolute limitation on the "underlying substance" of the defendant's question, "counsel must rephrase the improperly phrased question or waive the voir dire restriction." Bolden v. State, 73 S.W.3d 428, 431 (Tex.App.-Houston [1st Dist.] 2002, pet ref'd); see Wright v. State, 28 S.W.3d 526, 534 (Tex.Crim.App. 2000). It is insufficient to merely show that the court "generally disapproved of an area of inquiry from which proper questions could have been formulated," as the court "might have allowed the proper question had it been submitted for the court's consideration." Sells, 121 S.W.3d at 756. After the court sustained the State's objection to Lewis's question, Lewis abandoned this particular line of questioning. The court's disapproval of Lewis's "area of inquiry" does not eliminate the possibility that the court might have allowed Lewis to either rephrase his question or ask other questions. See Sells, 121 S.W.3d at 756. Lewis did not dispute the court's ruling, seek to rephrase the question or request to pose alternative questions. See Bolden, 73 S.W.3d at 431; see also Wright, 28 S.W.3d at 536. Therefore, Lewis failed to preserve his complaint for appeal. See Sells, 121 S.W.3d at 756; see also Bolden, 73 S.W.3d at 431; Wright, 28 S.W.3d at 536. We overrule his third point of error. Having overruled each of Lewis's three points of error, we affirm the judgment.