No. 1888-03
Delivered: November 17, 2004. DO NOT PUBLISH.
On Appellant's Petition for Discretionary Review from the Fifth Court of Appeals, Dallas County.
JOHNSON, J., delivered the opinion of the Court, in which KELLER, P.J., and PRICE, WOMACK, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined. MEYERS, J., dissented.
JOHNSON, J.
Appellant was charged by indictment with murder by shooting Carlos Barrera with a firearm. A jury convicted appellant of murder as charged in the indictment and assessed punishment at confinement in the institutional division of the Texas Department of Criminal Justice for forty years. On appeal, the court of appeals affirmed the judgment. Casares v. State, No. 05-02-01394-CR (Tex.App.-Dallas, delivered October 14, 2003). Appellant and his wife and children lived in an apartment downstairs from the apartment occupied by his mistress, Marina Montes, her mother, her son, and her brother, Carlos Barrera. Toward the end of the affair and after it ended, hostility developed between the two families, including verbal and physical confrontations. On the day of the murder, appellant, armed with a gun and accompanied by his brother, Jaime Quintero, went upstairs to talk to Montes and her family about telephone calls to appellant's wife. Although precisely what happened during the confrontation was disputed at trial, the confrontation ended when Barrera was shot and killed. Appellant was charged with murder. At trial, appellant claimed self-defense and sought to have an instruction on the law of self-defense included within the jury charge. The trial court declined to include such an instruction. In the court of appeals, appellant argued that the trial court erred in failing and refusing to give a jury charge on the issue of self-defense. The court of appeals affirmed the judgment of the trial court. We granted appellant's petition for discretionary review, which asserts that the court of appeals erred in affirming the trial court's ruling. His reasons for review contend that the decision of the court of appeals conflicts with our prior decisions and has departed from the accepted and usual course of judicial proceedings or sanctioned such departure by the trial court.
Appellant's grounds for review are: 1) The trial court erred in failing to give a jury charge on the issue of self-defense; 2) The trial court erred in failing to give a jury charge on the issue of self defense as a matter of law; 3) The trial court erred in failing to give a jury charge on the issue of self defense as a matter of fact; and 4) The trial court erred in refusing the requested charge on the issue of self defense.
The Evidence
At trial, Barrera's mother and sister testified that appellant and his brother forced their way into their apartment and that appellant then shot Barrera, who was unarmed, several times. Appellant testified that Jaime went upstairs to talk to Montes and her family about the problems between them and appellant's wife and, shortly thereafter, appellant also went upstairs. Appellant denied that he had forced his way into the apartment, but admitted that he was carrying a concealed nine-millimeter pistol and that he was not licensed to carry such a weapon. According to appellant's testimony, when he arrived at Montes's apartment, he talked with Montes and her mother and told them not to bother his family. Barrera, who was sitting on a sofa, abruptly stood up, threatened to kill appellant, and "made that movement." Appellant testified that he drew his gun and fired because he was afraid "that he'd shoot me, because my life was in danger and that he could kill me," and that, after he had fired the first shot, Barrera came towards him and that they struggled over the gun. Barrera suffered multiple gunshot wounds. After the shooting, appellant ran downstairs and into the woods to hide because he was frightened. Appellant admitted that he did not see Barrera with a gun, but because of the movement, he thought that Barrera was pulling a gun. The Requested Instruction
After the close of evidence, appellant objected to the jury charge because it did not include a self-defense instruction. He also requested an unrestricted charge on self-defense because he asserted that the requirements of § 9.31(b)(5) had not been met. He also specifically requested the inclusion of a jury instruction on self-defense, including instructions regarding the accused seeking an explanation from or discussion with the complainant. The trial court refused to include the requested instructions. On appeal, the court of appeals concluded that the statutory limitation on self-defense found in Tex. Penal Code § 9.31(b)(5) was established by the evidence as a matter of law and that appellant was thus not entitled to a self-defense instruction. Casares, supra, slip op. at 5. Discussion
Section 9.31 of the Penal Code provides for self-defense as justification in using force against another. However, § 9.31(b)(5) provides that the use of force against another is not justified "if the actor sought an explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was: (A) carrying a weapon in violation of § 46.02; or (B) possessing or transporting a weapon in violation of § 46.05" of the Penal Code. While it is undisputed that appellant was carrying the handgun in violation of § 46.02, he asserts that there was an evidentiary dispute as to whether he sought an explanation from and discussion with his mistress rather than the complainant and that if the jury determined that he was not seeking an explanation from or discussion with the complainant, then the limitation in § 9.31(b)(5) would not apply. He also argues that the evidence shows that he had no prior dispute with the complainant and that the earlier confrontation had been between his wife and the family that lived upstairs, i.e. his mistress and her family. He asserts that, because of this fact issue, the self-defense instructions that he requested should have been included within the jury charge and that the failure to do so was error. He also asserts that, because the complainant was not "the other person" as required by § 9.31(b)(5), a required element was not satisfied. The state argues that the court of appeals properly determined that appellant was not entitled to a self-defense instruction as a matter of law because the evidence shows that he sought a discussion with the complainant and the complainant's family while unlawfully armed. The state also disputes appellant's claims that he had no prior problem with the complainant. It cites evidence of the ongoing feud between appellant's wife and Montes and her family, including the complainant. Alternatively, the state argues that any error in denying appellant's request for self-defense instructions was harmless. "A defendant is entitled to an instruction on self-defense if the issue is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense." Ferrel v. State, 55 S.W.3d 586, 591 (Tex.Crim.App. 2001). However, if the evidence, viewed in the light most favorable to the defendant, does not establish self-defense, the defendant is not entitled to an instruction. Id. Appellant asserts that there was a fact issue as to whether he sought an explanation from or discussion with the complainant concerning his differences with the complainant. Appellant points to his testimony in response to a question about whether he had any problems with the complainant prior to this incident; "No, just that he wouldn't talk to me." Appellant also testified that on the date in question, he had left his apartment "to go upstairs and talk with [Barrera] and [Montes] and her mother to talk about this." Thus, appellant's own testimony shows that he included Barrera in his attempt to discuss the conflict between the two families, which arose because of appellant's involvement with Montes and that, before this incident, there had been a degree of antagonism between the two men. It is undisputed that appellant was carrying a handgun in violation of § 46.02. Appellant's brief states that appellant went to talk to "the people that live upstairs from [him]." Barrera was one of "the people [who] lived upstairs." According to the explicit terms of § 9.31(b)(5), if appellant "sought an explanation from or discussion with the other person concerning the actor's differences with the other person" while carrying the weapon in violation of § 46.02, the use of force against the other person was not justified, and appellant therefore was not entitled to a self-defense jury instruction. We conclude that the record establishes that, while carrying a weapon in violation of § 46.02, appellant sought an explanation from or discussion with the complainant concerning appellant's differences with him and others. Pursuant to the explicit terms of § 9.31(b)(5), the use of force for self-defense was not justified, and appellant was not entitled to his requested jury instruction. Accordingly, we overrule appellant's grounds for review and affirm the judgment of the court of appeals.