Summary
rejecting assertion that hypothetically correct jury charge would have included instruction under section 9.04 because case involved use of deadly force rather than threat of force
Summary of this case from Kizima v. StateOpinion
No. 05-16-00337-CR
06-21-2017
JOSEPH ALBERT ROBIC, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 282nd Judicial District Court Dallas County, Texas
Trial Court Cause No. F-15-23573-S
MEMORANDUM OPINION
Before Justices Francis, Fillmore, and Stoddart
Opinion by Justice Stoddart
Joseph Albert Robic was indicted for the murder of Ray Keech. A jury found Robic guilty of the lesser included offense of criminally negligent homicide, assessed punishment at ten years in prison, and recommended community supervision. The trial court sentenced Robic to ten years' confinement, suspended the sentence, and placed him on community supervision for ten years. In a single issue, Robic challenges the sufficiency of the evidence to show he voluntarily engaged in conduct or acted with criminal negligence, and to support the rejection of his claim of self-defense. We modify the trial court's judgment and affirm as modified.
BACKGROUND
Robic's mother, Glenda, met Keech in 2008. Keech moved into her house later that year. Although Glenda and Keech broke up in December of 2010, they remained friends and Keech continued to rent a room in the house. Keech and Robic did not like each other, but never had a physical altercation before this incident.
In March of 2015, Robic and his wife, Megan, learned they were going to have a child. They decided to surprise Glenda with the news at lunch. When the couple arrived at Glenda's house, she was not home so they let themselves in with their key. Keech was at the house and, after a brief conversation, returned to his room. Because Glenda was having problems with her television, Robic decided to look at her cable box. Keech came back into the room and asked Robic what he was doing. Robic said Glenda told him Keech was having trouble installing the cable boxes. Keech responded, "Oh, if that's what you want to say," and walked into the kitchen. Robic sensed Keech was agitated.
Megan got up from the couch and said, "Let's go." She walked to the front door and opened it. As Robic walked to the door, he asked Keech, "What's your problem?" Robic testified that he heard Keech run at him yelling, "You're my fucking problem!" Robic turned around and Keech ran into his chest. Megan turned and saw the men "holding on to each other's shoulders, shirts, kind of shoving and chest bumping." Keech swung at Robic, striking him in the face.
Licensed to carry a handgun, Robic pulled a loaded pistol from his waistband and grabbed Keech by the neck with his left hand while holding the gun in his right hand. As Megan attempted to separate the two men, Robic pushed Keech backwards against the back of a loveseat, knocking it over. All three fell on the loveseat. Robic held the gun under Keech's neck and told him to calm down and let Megan leave. Robic said his intent was to control the situation and allow them to leave the house. He did not have a conscious desire or objective to kill Keech. His finger was not on the trigger of the gun.
After Keech calmed down, Robic released Keech's neck, but continued to point the gun at Keech's "center mass." Robic told Megan to leave. Megan testified she pulled on Robic's shirt so he would leave with her, but "with the gun being present, I realized that he wasn't coming towards the pull, so I released him." She turned and went to the door. Before crossing the door frame, she heard a gunshot. She turned to see what happened and saw Keech lying on his back on the floor.
According to Robic, after falling over the love seat, Keech stood up and gave Robic a "big push." Keech then lowered his head as if to tackle Robic. Robic moved his finger to the trigger of the gun. He explained:
Q. [Defense Counsel] Why did your finger go to the trigger as he's pushing you backwards?
A. He came in for another attack while I had my gun pointed at him, and I was scared. I've never seen a situation where somebody attacked somebody that has a gun pointed at them.
Q. Did you even think about the fact that your finger moved, or did it just go there?
A. It just went there.
Robic took a few steps back and unexpectedly hit the bookcase behind him. Frightened, Robic "tensed up" and the gun discharged in a "straight head shot." When asked if he would have shot Keech had he not hit the bookshelf, Robic answered, "I would have had to."
On cross-examination, Robic stated:
Q. [Prosecutor] At the point you moved your finger to the trigger, you've made the decision to kill Ray Keech, haven't you?
A. Yes.
. . . .
Q. So which was it? Were you protecting your wife and child or was it an accident?
A. The shooting itself was an accident. Pointing my gun at somebody attacking me is deliberate.
Q. And if you hadn't accidentally shot him, you would have intentionally shot him.On redirect, Robic explained that when he moved his finger to the trigger, he recognized "the possibility" that he might have to take Keech's life.
A. Probably.
Keech died from a single gunshot wound to the head.
The jury was instructed on murder and the lesser included offenses of manslaughter and criminally negligent homicide. They were also instructed regarding the requirement of voluntary conduct, self-defense, and defense of a third person. The jury found Robic guilty of criminally negligent homicide.
STANDARD OF REVIEW
We review a challenge to the sufficiency of the evidence where the State has the burden of proof under the sufficiency standard of review set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979); Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). Under this standard, "we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Adames, 353 S.W.3d at 860. We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. See id. (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Circumstantial evidence is as probative as direct evidence in establishing the guilt of the actor, and circumstantial evidence alone may be sufficient to establish guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)).
The jury is the sole judge of credibility and weight to be attached to the testimony of witnesses. See Jackson, 443 U.S. at 319. When the record supports conflicting inferences, we presume the jury resolved the conflicts in favor of the verdict, and we defer to that determination. Id.; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (fact-finder's duty is "to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts") (quoting Jackson, 443 U.S. at 319). Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Hooper, 214 S.W.3d at 13.
When an appellant challenges the sufficiency of the evidence to support the rejection of a self-defense claim, we review all the evidence in the light most favorable to the verdict, and determine whether "any rational trier of fact would have found the essential elements of [the offense] beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt." Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991); Gaona v. State, 498 S.W.3d 706, 709 (Tex. App.—Dallas 2016, pet. ref'd). The defendant has the initial burden to produce evidence supporting self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton, 804 S.W.2d at 913. Once the defendant produces some evidence, the State bears the ultimate burden of persuasion to disprove the raised defense. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913-14. The State is not required to produce evidence refuting the claim of self-defense, but must prove its case beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913; Gaona, 498 S.W.3d at 709. The issue of self-defense is a fact issue to be determined by the jury, and the jury is free to accept or reject any defensive evidence on the issue. Saxton, 804 S.W.2d at 913-14. If the jury finds the defendant guilty, then it implicitly finds against the defensive theory. Id. at 914.
DISCUSSION
A. Voluntary Conduct
Robic challenges the sufficiency of the evidence to show he voluntarily engaged in conduct. The penal code provides that a person commits an offense "only if he voluntarily engages in conduct, including an act, an omission, or possession." TEX. PENAL CODE ANN. § 6.01(a). Before criminal responsibility may be imposed, the actor's conduct must include a voluntary act, omission, or possession. Id.; see Farmer v. State, 411 S.W.3d 901, 905-06 (Tex. Crim. App. 2013). Voluntariness refers only to the actor's physical body movements. Farmer, 411 S.W.3d at 906. The voluntary act requirement does not necessarily go to the ultimate act, such as pulling the trigger. Rogers v. State, 105 S.W.3d 630, 638 (Tex. Crim. App. 2003). Instead, the actor's conduct must include an act that is voluntary, such as pulling the gun, pointing the gun, or cocking the hammer. Id.
Robic argues his conduct was not voluntary because he accidentally pulled the trigger of the gun when Keech pushed him into the bookcase. But whether the ultimate act of pulling the trigger was an "accident" is irrelevant to the analysis under section 6.01(a). See Farmer, 411 S.W.3d at 907 (whether defendant's conduct was "by mistake or on purpose is irrelevant to our analysis" when determining if there was a voluntary act under section 6.01(a)). Even if the jury believed Robic involuntarily pulled the trigger, the evidence shows that Robic voluntarily pulled a loaded gun and pointed it at Keech during the fight. Robic continued to point the gun at Keech after they stood up from the overturned loveseat. These voluntary physical movements satisfy the requirement that Robic voluntarily engaged in conduct including an act. TEX. PENAL CODE ANN. § 6.01(a); see Farmer, 411 S.W.3d at 907 (all that is necessary to satisfy section 6.01(a) is that the commission of the offense included a voluntary act); Rogers, 105 S.W.3d at 638 (criminal responsibility must include an act that is voluntary such as "pulling the gun, pointing the gun, or cocking the hammer").
B. Mental State
Robic also challenges the sufficiency of the evidence to show he acted with criminal negligence. As relevant here, a person commits criminally negligent homicide if he causes the death of an individual by criminal negligence. TEX. PENAL CODE ANN. § 19.05(a). Criminal negligence with respect to the result of conduct means the actor "ought to be aware of a substantial and unjustifiable risk that . . . the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint." Id. § 6.03(d). Criminally negligent homicide "involves inattentive risk creation, that is, the actor ought to be aware of the risk surrounding his conduct or the result thereof [but fails] to perceive the risk." Stadt v. State, 182 S.W.3d 360, 364 (Tex. Crim. App. 2005) (quoting Lewis v. State, 529 S.W.2d 550, 553 (Tex. Crim. App. 1975)).
Proof of a culpable mental state is normally based on circumstantial evidence. Stadt v. State, 120 S.W.3d 428, 438 (Tex. App.—Houston [14th Dist.] 2003), aff'd, 182 S.W.3d 360 (Tex. Crim. App. 2005). Culpable mental states may be inferred from any facts tending to show their existence, such as actions, words, and conduct of the accused, the method of committing the crime, and the nature of the wounds inflicted on the complainant. See id.; see also Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002); Charlton v. State, 334 S.W.3d 5, 12 (Tex. App.—Dallas 2008, no pet.). "Evidence that a defendant knows a gun is loaded, that he is familiar with guns and their potential for injury, and that he points a gun at another, indicates a person who is aware of a risk created by that conduct and disregards the risk." Thomas v. State, 699 S.W.2d 845, 850 (Tex. Crim. App. 1985).
The jury heard evidence that Robic was familiar with the gun he carried and knew it was loaded. He was trained in gun safety, non-violent dispute resolution, and penal code provisions regarding use of force as part of the mandatory four-hour course to obtain his handgun license. Robic also passed a shooting test as part of the course. See TEX. GOV'T CODE ANN. §§ 411.171-.209. As part of his gun safety training, Robic was taught to keep his finger off the trigger until ready to fire his gun. The reason for the rule is that when a person is scared or nervous, the body's sympathetic nerve reflex may cause them to clench their hands and press the trigger. The reflex can also result from falling or bracing in anticipation of a fall.
Robic testified that his finger moved to the trigger after Keech pushed him backwards. Although Robic said his finger "just went there," he also said he moved his finger to the trigger because he was scared. There is evidence that Robic's moving his finger to the trigger represented a decision to kill Keech. There is also evidence that even if Robic had not hit the bookcase, he would have shot Keech.
From all the evidence viewed in the light most favorable to the verdict, a rational jury could conclude that Robic ought to have been aware of a substantial and unjustifiable risk that the gun would discharge, even if unintentionally, and result in the death of a person. A rational jury could also reasonably conclude from the evidence that the failure to perceive this risk was a gross deviation from the standard of care an ordinary person would exercise under the circumstances as viewed from Robic's perspective.
C. Rejection of Self-Defense
Finally, Robic challenges the jury's rejection of his self-defense argument. A person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force. TEX. PENAL CODE ANN. § 9.31(a). A person is justified in using deadly force against another (1) if he would be justified in using force against another under section 9.31 and (2) when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. Id. § 9.32(a). "Deadly force" means 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. Id. § 9.01(3). A person is justified in using force or deadly force against another to protect a third person (1) if the actor would be justified under sections 9.31 or 9.32 in using force or deadly force to protect himself against the unlawful force or deadly force he reasonably believes to be threatening the third person, and (2) the actor reasonably believes his intervention is immediately necessary to the protect the third person. Id. § 9.33. "Reasonable belief" means a belief that would be held by an ordinary and prudent person in the same circumstances as the actor. Id. § 1.07(a)(42).
The record indicates both men were about the same height and weight. Keech was sixty-five years old at the time of the shooting. Robic was thirty-two years old at the time of trial, less than a year after the shooting. There is evidence Keech struck Robic in the face, gave him a "big push," and attempted to tackle him. However, Robic never claimed he believed Keech was armed with a weapon or was attempting to use deadly force against Robic or Megan. Robic agreed Keech never hit Megan. Robic knew Megan was "clear" after they stood up from the loveseat when she pulled his shirt in an attempt to get him to leave with her.
Robic cites section 9.32(b) to assert that his belief that deadly force was immediately necessary is presumed reasonable. He contends Keech was attempting to commit aggravated assault by causing serious bodily injury. However, the presumption under section 9.32(b)(1)(C) arises only if the actor knows or has reason to believe the other person is committing or attempting to commit "an offense described by Subsection (a)(2)(B)." TEX. PENAL CODE ANN. § 9.32(b)(1)(C). Aggravated assault is not an offense described in subsection 9.32(a)(2)(B). See id. § 9.32(a)(2)(B) ("the actor reasonably believes the deadly force is immediately necessary: . . . (B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery"). There is no evidence Robic knew or had reason to believe Keech was committing or attempting to commit any of these offenses. Therefore, the presumption does not apply in this case.
Section 9.32(b) provides:
(b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the deadly force was used:
. . .
(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);
TEX. PENAL CODE ANN. § 9.32(b).
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.
Robic also argues the hypothetically correct charge for this case would have included an instruction on the threat of force under penal code section 9.04. See TEX. PENAL CODE ANN. § 9.04. Section 9.04 provides that for purposes of determining whether the threat of force is justified, displaying a weapon, so long as the actor's purpose is limited to creating the apprehension he will use deadly force, does not constitute the use of deadly force. Id. However, the issue in this case is not whether the threat of force was justified, but whether the use of deadly force was justified. Robic cites no authority that section 9.04 applies in a case involving the use of deadly force rather than a case involving the threat of force. The case he cites, McDermott v. State, No. 05-04-01125-CR, 2005 WL 1385229, at *1 (Tex. App.—Dallas June 13, 2005, no pet.) (mem. op., not designated for publication), did not involve the use of deadly force. McDermott was convicted of unlawfully carrying a handgun by a license holder when he displayed a handgun to another driver after a road-rage incident. Id. at *1. The handgun was never fired and no physical injuries resulted from the incident. See id. Further, we concluded that section 9.04 did not apply because "[u]nder the specific [concealed handgun] statute under which appellant was convicted, appellant was justified in displaying his weapon only if he were justified in using deadly force." Id. at *3. We conclude that neither the language of section 9.04 nor the holding in McDermott support Robic's contention that section 9.04 is part of the hypothetically correct jury charge for this case.
Section 9.04 states:
The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.Id.
Based on all the evidence, a rational jury could conclude that Keech's single punch, push, and attempt to tackle Robic was not the use or attempted use of unlawful deadly force against Robic or Megan and that Robic's belief that deadly force was immediately necessary was not reasonable under the circumstances. We conclude a rational trier of fact could have found against Robic on self-defense and defense of a third person beyond a reasonable doubt.
CONCLUSION
Reviewing all the evidence in the light most favorable to the verdict, a rational jury could conclude beyond a reasonable doubt that Robic voluntarily engaged in conduct including at least one physical act and that Robic caused the death of Keech by criminal negligence. A rational jury could also conclude beyond a reasonable doubt that Robic did not act in self-defense or defense of a third person because he did not reasonably believe under the circumstances that deadly force was immediately necessary to prevent Keech from using or attempting to use unlawful deadly force against Robic or his wife and unborn child. Therefore, a rational trier of fact could have found the essential elements of criminally negligent homicide beyond a reasonable doubt and found against Robic on the self-defense and defense of a third person issues beyond a reasonable doubt. We overrule Robic's issue.
Robic and the State point out that the judgment incorrectly shows he waived a jury, pleaded guilty, and was convicted of a third-degree felony. The record shows these recitals are incorrect. We have the authority to modify a judgment when errors are called to our attention and we have the information necessary to make the record speak the truth. See French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.—Dallas 1991, pet. ref'd). Accordingly, we modify the trial court's judgment to reflect that Robic did not waive a jury, pleaded not guilty, and was convicted of a state jail felony. See TEX. R. APP. P. 43.2.
As modified, we affirm the trial court's judgment.
/Craig Stoddart/
CRAIG STODDART
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
160337F.U05
JUDGMENT
On Appeal from the 282nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1523573-S.
Opinion delivered by Justice Stoddart. Justices Francis and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
(1) The title of the judgment is modified to read: "Judgment of Conviction by Jury" (2) The Degree of Offense is modified to read: "State Jail Felony" (3) The Plea to Offense is modified to read: "Not Guilty" As MODIFIED, the judgment is AFFIRMED. Judgment entered this 21st day of June, 2017.