Opinion
No. 05-11-00040-CR
03-26-2012
MARVIN CLEARY, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed March 26, 2012.
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F10-00635-T
OPINION
Before Justices Morris, Fillmore, and Myers
Opinion By Justice Myers
Appellant, Marvin Cleary, was convicted of capital murder and sentenced to life imprisonment without parole. In two points of error, he argues the trial court erred by (1) refusing to charge the jury on "apparent danger" and (2) allowing a detective to testify that he did not believe this was a case of self-defense. We affirm the trial court's judgment.
Because the State did not seek the death penalty, punishment was set by operation of law. See Tex. Penal Code Ann. § 12.31(a)(2) (West 2011).
Discussion
Apparent Danger
In his first issue, appellant argues the trial court erred by refusing to charge the jury on "apparent danger." When reviewing claims of jury charge error, we first determine whether an error actually exists in the charge. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)). If error exists and appellant objected to the error at trial, reversal is required if the error "is calculated to injure the rights of [the] defendant," which means there must be "some harm" to appellant from the error. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). Whether the defendant suffered some actual harm is evaluated in light of the entire jury charge, the state of the evidence, counsel's arguments, and any other relevant information in the record. See id.
Self-defense is a justification for otherwise unlawful conduct. See Giesberg v. State, 984 S.W.2d 245, 249 (Tex. Crim. App. 1998). A defendant is .justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force.. Tex. Penal Code Ann. § 9.31(a) (West 2011). A person also has the right to defend against apparent danger to the same extent as if the danger was real. Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996).
In this case, appellant was indicted for capital murder and pleaded self-defense. The trial court's charge to the jury included the following instruction on self-defense:
The indictment alleged appellant unlawfully, intentionally caused the death of Carolyn Cleary, an individual, hereinafter called deceased, by HITTING AND BY STRIKING DECEASED WITH AN IRON, A DEADLY WEAPON, AND HANDS, A DEADLY WEAPON, AND BY STRANGLING DECEASED WITH DEFENDANT'S HANDS, A DEADLY WEAPON, and the defendant was then and there in the course of committing and attempting to commit the offense of RETALIATION of said deceased.
It is a defense to this prosecution if the defendant's conduct was justified by law.The defense objected and requested a separate instruction to the jury on apparent danger. The trial court denied that request.
Under the law of self-defense, you are instructed that a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other person's use or attempted use of unlawful force.
A person is justified in using deadly force against another if he would be justified in using force against the other person as above stated, and when and to the degree he reasonably believes that deadly force is immediately necessary to protect himself against the other person's use or attempted use of unlawful deadly force.
The term "deadly force" means force that is intended or known by the defendant to cause, or in the manner of its use or intended use, is capable of causing death or serious bodily injury.
The term "reasonable belief" means a belief that would be held by an ordinary and prudent person in the same circumstances as the defendant.
The use of force against another is not justified in response to verbal provocation alone.
Therefore, even if you believe from the evidence beyond a reasonable doubt that the defendant caused the death of Carolyn Cleary, an individual, by hitting or striking Carolyn Cleary with an iron, a deadly weapon, or hands, a deadly weapon, or by strangling Carolyn Cleary with defendant's hands, a deadly weapon, as alleged, but you further believe from the evidence, or you have a reasonable doubt thereof, that at the time he did so, the defendant reasonably believed that Carolyn Cleary or Sylvester Williams was using or attempting to use unlawful deadly force against him and that he reasonably believed that the use of force and the degree of force used were immediately necessary to protect himself against Carolyn Cleary's use or attempted use of unlawful deadly force or Sylvester Williams' use or attempted use of unlawful deadly force, you will find the defendant not guilty.
However, if you believe from the evidence beyond a reasonable doubt that, at the time and place in question, the defendant did not reasonably believe that Carolyn Cleary or Sylvester Williams were using or attempting to use unlawful deadly force against him or that the defendant did not reasonably believe that the use of force and the degree of force used were immediately necessary to protect himself against Carolyn Cleary's use or attempted use of unlawful deadly force or Sylvester Williams' use or attempted use of unlawful deadly force, you will find against the defendant on this plea of justification.
During the charge conference, appellant's trial counsel told the court:
We would request that the following language be inserted in the charge and at the appropriate spot that one person is attacked with unlawful deadly force or reasonably believes he's under attack or attempted attack with unlawful deadly force and there is created in the mind of such person a reasonable expectation or fear of death or serious bodily injury, then the law excuses or justifies such person in resorting to deadly force by any means at his command to the degree that he reasonably believes immediately necessary, viewed from his standpoint at the time to protect himself from such attack or attempted attack.It is not necessary that there be an actual attack or attempted attack as a person has a right to defend his life and person from apparent danger as fully and to the same extent as he would had the danger been real, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time and that he reasonably believes such force was immediately necessary to protect himself against the other person's use or attempted use of unlawful deadly force.
In support of his argument that there should have been a separate instruction on apparent danger, appellant cites Torres v. State, 7 S.W.3d 712 (Tex. App.--Houston [14th Dist.] 1999, pet. ref'd), where the court of appeals concluded that actual danger was not the only evidence presented at trial; the parties' testimony also raised the issue of apparent danger. Id. at 714. The court of appeals concluded the trial court erred by omitting an instruction on apparent danger. Id. The court rejected the State's argument that the self-defense instruction encompassed apparent danger. Id. at 715.
The court stated:
We can find no case law supporting the State's argument that the standard charge on self-defense encompasses apparent danger. Instead, there are multiple cases where the jury charge included apparent danger and regular self-defense. See, e.g., Reaves v. State, 970 S.W.2d 111, 117 (Tex. App.--Dallas 1998, no pet.); Mata v. State, 939 S.W.2d 719, 723 (Tex. App.--Waco 1997, no pet.); Simms v. State, 905 S.W.2d 720, 726 (Tex. App.--Texarkana 1995, no pet.). We thus reject the State's argument.
As another court of appeals has noted, however, the Torres court failed to discuss the court of criminal appeals' opinion in Valentine v. State, 587 S.W.2d 399 (Tex. Crim. App. 1979), where the court concluded an additional charge on apparent danger was not required where .reasonable belief. had been properly defined. Id. at 401; see Clark v. State, No. 04-02-00551-CR, 2004 WL 1835732, at *6 (Tex. App.--San Antonio 2004, Aug. 18, 2004, pet. ref'd) (mem. op., not designated for publication). The Valentine court explained that, by defining "reasonable belief" as "a belief that would be held by an ordinary and prudent person in the same circumstances as the defendant,. the trial court in that case
instructed the jury that a reasonable apprehension of danger, whether it be actual or apparent, is all that is required before one is entitled to exercise the right of self-defense against his adversary. Furthermore, we observe that the court's charge is in accordance with sections 1.07(31), 9.31, and 9.32 of the Penal Code, all of which adequately presented the appellant's defensive theory and protected her rights. Appellant's contention is overruled.Valentine, 587 S.W.2d at 401 (citations omitted).
As in Valentine, by defining the term .reasonable belief. as "a belief that would be held by an ordinary and prudent person in the same circumstances as the defendant," the trial court in this case properly instructed the jury that a reasonable apprehension of danger, whether actual or apparent, was all that was required before one was entitled to exercise the right of self-defense against his adversary. See Valentine, 587 S.W.2d at 401; see also Clark, 2004 WL 1835732, at *6; Price v. State, No. 2-02-268-CR, 2003 WL 1351991, at *1 (Tex. App.--Fort Worth Mar.20, 2003, pet. ref'd) (mem. op., not designated for publication); Porter v. State, Nos. 05-97-00378 & 00642-CR, 1998 WL 751792, at *4 (Tex. App.--Dallas Oct. 29, 1998, no pet.) (not designated for publication). We therefore conclude the instruction properly encompassed the theory of apparent danger and the jury was adequately charged on self-defense. We overrule appellant's first point of error.
Detective Perez's Testimony
In his second point of error, appellant alleges the trial court erred by allowing Detective Fidel Perez of the Dallas Police Department, the lead detective on this case, to testify "he did not believe this was a case of self-defense." Perez, a homicide detective, interviewed appellant after appellant drove to the county jail and turned himself in. Appellant gave a "DVD-recorded" statement recounting the events that led to the death of his wife. The statement was admitted at trial and played for the jury. Appellant calls our attention to the following portion of Perez's redirect testimony:
Q. [PROSECUTOR:] Defense attorney was asking you about whether you thought he was telling the truth. Do you believe he told you the whole truth?
A. [PEREZ:] As far as what I was asking him, I believe he told me most of what he wanted me to hear. I don't believe that he told me the truth as far as what started the fight.
Q. If you had thought this was self-defense how do you handle--would you handle it the same way as it was handled?
[DEFENSE COUNSEL]: I object that that calls for a legal conclusion.
THE COURT: Overruled. You may answer.
A. [PEREZ:] Usually in a self-defense or justifiable type case the case would be presented to the grand jury for their recommendation whether to move forward or not and in this case we just went ahead and filed it straight file.
We review a trial court's ruling on the admissibility of evidence under an abuse of discretion standard, and we should not reverse a trial court's ruling unless it falls outside the zone of reasonable disagreement. See Burden v. State , 55 S.W.3d 608, 615 (Tex. Crim. App. 2001); see also Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).
Rule of evidence 701 states that a non-expert witness's "testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." Tex. R. Evid. 701.
Whether a witness's opinion meets the fundamental requirements of the rule is within the trial court's discretion, and a decision regarding admissibility should be overturned only if the court abuses its discretion. Fairow v. State , 943 S.W.2d 895, 901 (Tex. Crim. App. 1997). Moreover, if the record supports the trial court's decision to admit or exclude an opinion under rule 701, there is no abuse, and the appellate court must defer to that decision. See Osbourn v. State , 92 S.W.3d 531, 538 (Tex. Crim. App. 2002); Powell v. State , 63 S.W.3d 435, 438 (Tex. Crim. App. 2001).
"When a witness who is capable of being qualified as an expert testifies regarding events which he or she personally perceived, the evidence may be admissible as both Rule 701 opinion testimony and Rule 702 expert testimony." Osbourn, 92 S.W.3d at 536. "A person with specialized knowledge may testify about his or her own observations under Rule 701 and may also testify about the theories, facts and data used in his or her area of expertise under Rule 702." Id. "[A]lthough police officers have training and experience, they are not precluded from offering lay testimony regarding events which they have personally observed." Id.
In the present case, rule 701 governs appellant's complaint. In the portion of the record cited by appellant, the prosecutor asked Perez whether, if he had "thought this was self-defense," he would have handled "it the same way as it was handled." Perez responded that self-defense or "justifiable- type" cases were usually presented to the grand jury "for their recommendation whether to move forward or not," and "in this case we just went ahead and filed it straight file."
Perez's testimony was rationally based on events he perceived during his investigation of the case, including his interrogation of appellant. See Tex. R. Evid. 701; Osbourn, 92 S.W.3d at 536. The testimony was relevant to whether appellant committed the offense, and it did not expressly question appellant's or another witness's truthfulness or credibility. Because Perez's testimony was properly admitted under rule 701, the trial court did not abuse its discretion. We overrule appellant's second point of error.
We affirm the trial court's judgment.
LANA MYERS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110040F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MARVIN CLEARY, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00040-CR
Appeal from the 283rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F10- 00635-T).
Opinion delivered by Justice Myers, Justices Morris and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 26, 2012.
LANA MYERS
JUSTICE
Id. at 715.