No. 05-03-00193-CR
Opinion issued December 18, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court Dallas County, Texas, Trial Court Cause No. F02-48348-TW. Affirmed.
Before Justices WHITTINGTON, JAMES, and O'NEILL.
Opinion By Justice JAMES.
Eloy Cantu appeals his conviction for murder. A jury found him guilty and assessed punishment at confinement for fifty-five years. Appellant brings two issues on appeal and contends (1) the court erred by not instructing the jury it is not unlawful to carry a handgun on one's own premises, and thus limited his right to self-defense; and (2) the court improperly excluded evidence of the deceased's prior robberies and military experience. We affirm the trial court's judgment.
Background
In the jury trial, appellant admitted to shooting Stanley Smith. Appellant lived in a "drug house" on Grant Street and sold drugs out of that house. Smith had lived at the house for about one month before the shooting. Smith and appellant had previously argued, and appellant requested Smith not to return to the house. On the morning of the shooting, Smith showed up at the house, and the two proceeded to argue about drugs. Appellant contended Smith had stolen drugs from him. During this argument, appellant shot Smith twice, and he died. Appellant, with the aid of several others, rolled Smith's body in a carpet and disposed of the bundle in North Dallas. Not long after, Smith's body, rolled in the carpet, was discovered. An investigation uncovered extensive physical evidence, eventually leading to appellant who was arrested and tried for Smith's murder. The court charged the jury with instructions on self-defense. The jury convicted appellant of murder. Jury Instruction
In his first issue, appellant argues the court reversibly erred by not instructing the jury that it is not unlawful to carry a handgun on one's own premises. The jury was informed the use of force is not justified if the accused "sought an explanation from or discussion with another concerning a difference with the other person while unlawfully carrying a handgun." See Tex. Pen. Code Ann. § 9.31(b)(5) (Vernon 2003). The court also instructed the jury in accordance with Texas Penal Code section 46.02 and stated, "Our law provides that it is unlawful for a person to intentionally, knowingly, or recklessly carry a handgun on or about his person." Appellant argues, however, that section 9.31(b)(5) limits self-defense only for a person unlawfully carrying a gun under penal code section 46.02 or 46.05 and that he was not carrying a gun unlawfully under section 46.02 because he was at his own home. Section 46.15(b)(2) states that section 46.02-unlawful carrying of a weapon-does not apply to one who possesses a handgun on his own premises. See Tex. Pen. Code Ann. § 46.15(b)(2) (Vernon 2003). The shooting occurred at the residence where appellant was living, and appellant argues he, therefore, was not unlawfully carrying a gun under section 46.02. He contends the jury should have been instructed accordingly. Appellant, however, did not object to the charge, and he did not request an instruction regarding his current complaint. Appellant states his failure to object does not waive error. He contends the failure of the court to instruct the jury in this manner amounted to egregious harm requiring reversal under Almanza because it limited his right to self-defense. We disagree. Under the law from Posey v. State, 966 S.W.2d 57 (Tex.Crim.App. 1998), Almanza does not apply to appellant's case. In Posey v. State, the court of criminal appeals held that article 36.14 of the code of criminal procedure does not permit an appellant to complain for the first time on appeal about unraised defensive issues in the court's charge. Id. at 62. Article 36.14 requires a defendant to object to the charge before he may complain on appeal about claimed "errors" of commission and omission in the charge. See Tex. Code Crim. Proc. Ann. Art. 36.14 (Vernon 1981). Almanza did allow for appellate review of non-objected-to charge errors. See Almanza, 686 S.W.2d at 171. However, those errors were specifically ones of commission and omission in the court's charge "upon which a trial court has a duty to instruct without a request or objection from either party. . . ." See Posey, 966 S.W.2d at 61 n. 9. The Posey court observed that the trial court has no duty to sua sponte instruct the jury on unrequested defensive issues. Id. at 62. To hold otherwise would render article 36.14 meaningless. Id. Accordingly, if an appellant fails to object to a defensive charge issue, the appellant waives his complaint on appeal. Although section 46.15 does not identify possession on one's own premises as a "defense," neither does it identify possession on one's own premises as an "exception." See, e.g., Tex. Pen. Code Ann. §§ 2.02, 2.03 (Vernon 2003). An exception is specifically labeled by the phrase "it is an exception." See id. § 2.02. A defense is labeled "It is a defense to prosecution that. . . ." Id. at § 2.03(a). However, a ground of defense not plainly labeled "it is a defense" in accordance with the penal code still has the procedural and evidentiary consequences of a defense. Id. § 2.03(e). Therefore, possession on one's own premises is a defense to the offense of unlawfully carrying a weapon. See id.; Hafley v. State, 781 S.W.2d 642, 644 (Tex. App.-Dallas 1989, no pet.). We conclude the issue raised by appellant under section 46.15(b)(5) is a defense to prosecution under section 46.02. Accordingly, the trial court had no duty to sua sponte instruct the jury on the unrequested defensive issue. See Posey, 966 S.W.2d at 61. Without such a duty, Almanza does not apply. Appellant was required to object to any charge error to preserve it for our review. He failed to do so and thus waived any error. We resolve appellant's first issue against him. Exclusion of Evidence
In his second issue, appellant contends the court improperly excluded evidence regarding Smith's prior "jackings" and military experience. While appellant was testifying about Smith, appellant's counsel asked him, "What about him led you to believe he would take that weapon from you?" The State objected, and after the jury was excused from the courtroom, appellant answered, "It was times that we talked and he told me about past jackings and pretty much about his — a little bit about military experience." The State objected to the testimony as specific prior bad acts inadmissible under rule 404(b). The court instructed the witness that he was limited to discussing events that had occurred specifically between appellant and Smith. Appellant contends the exclusion of his testimony about the past "jackings" and military experience was error. Assuming without deciding the court's exclusion of this testimony was error, without a finding of harm, reversal is not warranted. Erroneous exclusion of a defendant's evidence is generally non-constitutional error unless that evidence "forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense." Potier v. State, 68 S.W.3d 657, 665 (Tex.Crim.App. 2002). The excluded evidence here is relevant to appellant's defensive theory. Accordingly, we will determine whether the exclusion of this testimony requires reversal using a harm analysis. See Tex.R.App.P. 44.2(b). Appellant offers no argument that the excluded testimony prevented him from presenting his defense to the jury, and our review of the record convinces us that the exclusion of the testimony had at most a slight effect on the verdict. The jury had before it testimony concerning the days leading up to the shooting. Appellant and Smith had been arguing; appellant thought Smith had stolen "dope" from him. Appellant confronted Smith, called him a thief, and Smith "called" appellant to a fist fight. Appellant did not fight Smith that day, and he testified he made it clear Smith was not welcome at the house anymore. Appellant also testified Smith had threatened him. Also before the jury was appellant's testimony regarding the events on the day of the shooting. According to appellant, Smith "was high on crack and he was skitzing." Smith persistently asked appellant for drugs, became angry, and rushed appellant. Appellant fell back onto his knee, and the gun he had been holding went off. Appellant got back up, and Smith, while yelling, rushed him again. Appellant feared Smith was trying to take the gun away, and appellant fired the gun at Smith. Appellant presented evidence concerning his defensive theory. The jury heard of appellant and Smith's altercation and arguments. Appellant testified as to his fear of Smith at the time he shot him and Smith's demeanor. We conclude appellant was not prevented from presenting his defense to the jury. See Potier, 68 S.W.3d at 666. Because he was not prevented from presenting his defense, appellant's substantial rights were not affected by any error from the exclusion of appellant's testimony about Smith's prior "jackings" and military experience. Therefore, any error was harmless. We resolve appellant's second issue against him. We affirm the trial court's judgment.