No. 14-04-00393-CR
Memorandum Opinion filed August 30, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 263rd District Court, Harris County, Texas, Trial Court Cause No. 951,157. Affirmed.
Panel consists of Justices EDELMAN, GUZMAN, and MURPHY.
Senior Chief Justice Paul C. Murphy sitting by assignment.
EVA M. GUZMAN, Justice.
A jury convicted appellant Terrance Clayton Lindsey of murder, and the trial court sentenced him to sixty years' confinement in the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID"). Appellant argues in his sole issue on appeal that the trial court erred in refusing to submit an instruction on self-defense to the jury. Finding no error in the trial court's decision, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Savannah Monique Anderson and Darrell Moore, the complainant in this case, shared a room at the Air Rest Motel in Houston. In June 2003, a friend picked up Anderson at the motel and drove her to an abandoned building to meet two other men, one of whom was appellant, Terrance Clayton Lindsey. Appellant and Anderson smoked crack cocaine together at the building, then returned to Anderson's and Moore's motel room so that appellant could purchase crack cocaine from Moore. While still intoxicated from the cocaine they smoked earlier, appellant and Anderson entered the motel room to make the purchase from Moore. Anderson moved into the bathroom to use the mirror while the transaction took place. From the bathroom, Anderson heard appellant ask Moore for a "twenty" — a twenty-dollar portion of crack cocaine — and, after seeing the amount of cocaine Moore produced, disputed its size as being less than twenty-dollars' worth. After Moore refused to refund appellant's twenty dollars, a struggle ensued. One of the men produced a handgun during the struggle, and Moore was shot and killed. Appellant fled the scene, but was later arrested and charged with Moore's murder. A jury convicted appellant of murder and, after appellant pleaded true to two enhancement paragraphs, the trial court assessed punishment at sixty years' confinement in the TDCJ-ID. In a single issue, appellant claims the trial court erred in refusing to instruct the jury on self-defense because the issue was raised by the evidence and properly requested by trial counsel. II. DISCUSSION
A. Standard of Review Generally, a defendant is entitled to a jury instruction on any properly requested defensive issue raised by the evidence. Lavern v. State, 48 S.W.3d 356, 360 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (en banc). This right exists regardless of the source of the evidence, its strength, or whether the trial court finds it credible. Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App. 1996). The trial court commits no error in refusing to submit an instruction on self-defense when the evidence fails to raise the issue. See Kunkle v. State, 771 S.W.2d 435, 443-44 (Tex.Crim.App. 1986). To raise the issue of self-defense, an accused typically must admit committing the offense and then offer self-defense as justification. Ford v. State, 112 S.W.3d 788, 794 (Tex.App.-Houston [14th Dist.] 2003, no pet.). Self-defense is rarely raised where, as here, the defendant does not testify. Lavern, 48 S.W.3d at 360. We review the evidence supporting a defensive issue in the light most favorable to the defendant. Pennington v. State, 54 S.W.3d 852, 856 (Tex.App.-Fort Worth 2001, pet. ref'd). B. Does the Evidence Raise the Issue of Self-Defense?
Appellant claims he was entitled to a jury instruction on self-defense because it was clearly raised by the evidence and because it was a "hotly contested" "core issue" from the inception of the case. Appellant also argues his position is bolstered by several inconsistencies between the statement Anderson initially gave to police and her trial testimony. In response, the State argues the record contains no evidence appellant reasonably believed deadly force was immediately necessary to protect him from Moore's use of deadly force. Anderson, the only eyewitness to the shooting, testified that after bringing appellant to the motel room, she stood in the bathroom adjusting her hair. From there, she was able to see and hear portions of the drug transaction. Anderson testified that appellant asked Moore for a "twenty" and after the money and cocaine were exchanged, appellant argued with Moore over the quantity of cocaine given him. At this point, Anderson heard appellant say, "give me everything" to Moore, as if appellant were robbing Moore. Anderson then turned around and saw appellant and Moore struggling over a handgun, but she did not know which man produced the gun, or to whom it belonged. Anderson testified that Moore's hand was on appellant's wrist, while appellant held the gun and pointed it at Moore's head. After approximately five seconds, the gun fired, killing Moore. Anderson also stated that after Moore fell, she observed appellant perform a search of Moore's clothing. Even viewing the evidence in the light favoring appellant, we are unable to conclude the evidence raises the issue of self-defense. Appellant points to no evidence, and the record reveals none, indicating that appellant's actions were in response to Moore's threat or use of force against him. See Smith v. State, 676 S.W.2d 584, 585 (Tex.Crim.App. 1984) (stating that in order to justify the submission of a jury charge on self-defense, the record must contain some evidence that the defendant was in some apprehension or fear of being the recipient of the unlawful use of force from the complainant); Lavern, 48 S.W.3d at 360. Rather, the evidence indicates appellant was the aggressor. Anderson testified appellant ordered Moore to "give [appellant] everything," appellant held the gun, and appellant pointed it at Moore's head. Although Anderson's testimony leaves open the possibility Moore's gun was used in the shooting, nothing in the record indicates that Moore originally used the gun against appellant, thus precipitating appellant's need to defend himself. We therefore conclude the evidence fails to raise the issue of self-defense, and the trial court did not err in refusing to submit an instruction to the jury. Accordingly, we overrule appellant's sole issue and affirm the trial court's judgment.