Opinion
05-22-01079-CR
11-19-2024
DOMINIQUE KEVONTE CARTER, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish TEX. R. APP. P. 47.2(b)
On Appeal from the Criminal District Court No. 4 Dallas County, Texas Trial Court Cause No. F20-76742
Before Justices Reichek, Nowell, and Carlyle
MEMORANDUM OPINION
CORY L. CARLYLE, JUSTICE
A jury found Dominique Carter guilty of murdering Nico King and the trial court sentenced him to 18 years of imprisonment. In two issues on appeal, Carter attacks the sufficiency of the evidence supporting the jury's rejection of his self-defense claim and the trial court's alleged violation of Texas Code of Criminal Procedure article 36.27 when it presumably responded to two jury notes off the record. We affirm in this memorandum opinion. See Tex. R. App. P. 47.4.
On October 7, 2020, around 6:45 p.m., Dallas police officers responded to a shooting at 115 North Jim Miller Road and found King with gunshot wounds. The medical examiner ruled the cause of death was gunshot wounds to the lower extremities and the manner of death as homicide. Crime scene analysts collected evidence including cartridge casings, a pair of bloodstained jeans, and surveillance videos.
Carter pled not guilty to murder, and he proceeded to a jury trial. Carter testified, claimed he was in fear for his life, and invoked the right to self-defense. The jury found Carter guilty, found an enhancement paragraph to be true, and the trial court overruled Carter's motion for new trial.
In his first issue, Carter asserts the evidence is legally insufficient to support his conviction for murder because no rational fact finder could have found he did not act in self-defense. To prevail on a claim of self-defense with the use of deadly force, a defendant must prove: (1) he would have been justified in using force against the other person; and (2) it was reasonable to believe that deadly force was immediately necessary for protection against the other's use or attempted use of unlawful deadly force. Hernandez v. State, No. 05-22-00587-CR, 2024 WL 1154154, at *3 (Tex. App.-Dallas Mar. 18, 2024, no pet.) (mem. op., not designated for publication); Tex. Penal Code §§ 9.31, 9.32(a).
In self-defense cases, the defendant must first produce some evidence that would support a rational finding in his favor on the defensive issue. Braughton v. State, 569 S.W.3d 592, 608-09 (Tex. Crim. App. 2018) (citations omitted). The State must then persuade jurors by proving its case beyond a reasonable doubt. Id. In evaluating such a sufficiency claim, we "determine whether after viewing all the evidence in the light most favorable to the prosecution, 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." Id.
"A person is justified in using force against another when and to the degree that person reasonably believes the force is immediately necessary to protect himself from another's use or attempted use of unlawful force." Hernandez, 2024 WL 1154154, at *3 (citing Texas Penal Code § 9.31(a)). Deadly force is "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." Texas Penal Code § 9.01(3). The State introduced surveillance video showing that when King approached Carter, Carter had three friends in his immediate vicinity and another three people nearby. Carter did not retreat; instead, he pulled out a gun, pointed it at King, then shot King. King retreated and Carter pursued him while continuing to shoot. According to the medical examiner's report, King suffered six gunshot wounds. Until the moment Carter pointed his gun at King, no one had acted aggressively or defensively; in fact, no one reacted until after Carter pulled the trigger.
At trial, Carter testified he saw King approach him, knew King's reputation for aggression, knew King had access to guns, knew that people on social media were saying he shot King's brother, had heard there were threats against him as a result, had heard King wanted to retaliate, and that he was afraid King would shoot and kill him. Carter also acknowledged, however, that King never threatened him directly, that he did not know whether King had a gun as he approached, that he shot King with a firearm, that a firearm is a deadly weapon, that by shooting King he committed an act clearly dangerous to human life, that he wanted to cause King serious bodily injury, and that King died from his injuries. The State also introduced proof that Carter had a conviction for burglary and was thus prohibited from possessing a firearm at the time he shot King.
Texas Penal Code § 46.04(a)(1) prohibits a person convicted of a felony from possessing a firearm anywhere during the five years after release from parole supervision. Carter admitted this applied to him at the time of the September 2022 trial. This "criminal activity" disqualified Carter from relying on the presumption that his belief that deadly force was immediately necessary was reasonable. See Tex. Penal Code §§ 9.32(b). It also allowed jurors to consider his failure to retreat before using deadly force, something they would have otherwise been prevented from considering. See id. § 9.32(c)-(d).
Detective Gross testified that after watching the surveillance video, it did not appear as if King was approaching Carter just to talk and that his demeanor was arguably aggressive. He also testified that King posted a message to Facebook earlier that day stating that "Nobody can save you" and that it would be reasonable to assume Carter did not know what was in King's hands as he approached. Detective Gross also acknowledged that Carter did not shoot King in the chest or head and that based on the surveillance video, people approached King after Carter shot him and appeared to remove items from his body. Finally, Detective Gross acknowledged that if King had a gun, it would be relevant to Carter's self-defense claim.
After viewing all the evidence in the light most favorable to the verdict, we conclude a rational trier of fact would have found the essential elements of murder beyond a reasonable doubt. See Braughton, 569 S.W.3d at 609; Tex. Penal Code § 19.02(b)(1), (2). The self-defense question is closer in this case than in many, and a jury may have been justified in finding Carter not guilty based on his self-defense claim. But under the circumstances-including Carter's acknowledgment that he did not see King armed with a weapon during daylight hours and the absence of any reaction from his friends up until he shot King-a rational trier of fact also could have reasonably found beyond a reasonable doubt that it was unreasonable for Carter to believe deadly force was immediately necessary to protect himself against King's use or attempted use of unlawful deadly force. See Braughton, 569 S.W.3d at 609; Tex. Penal Code § 9.32(a). Because the evidence was legally sufficient to support the jury's rejection of Carter's self-defense claim, we reject Carter's first issue.
In his second issue, Carter contends the trial court violated Texas Code of Criminal Procedure article 36.27 because communications to and from the jury in felony cases "shall be a part of the record and recorded by the court reporter" and the record does not reflect the trial court's response to two notes from the jury. See Tex. Code Crim. Proc. art. 36.27. The first note asked, "Can we please see the written testimonies that were agreed beforehand?" Article 36.27 does not apply to requests for exhibits. See Dyba v. State, 549 S.W.2d 178, 181 (Tex. Crim. App. 1977) (article 36.27 does not apply to requests for exhibits because the jury "would merely have to request the bailiff to bring them the exhibits they desired to view."); Sharp v. State, No. 05-98-01427-CR, 2000 WL 1618458, at *2 (Tex. App.-Dallas Oct. 31, 2000, no pet.) (not designated for publication) ("The jury's note in this case asking to have the evidence brought into the jury room concerned an administrative matter. The record does not reflect that the trial court gave any additional instructions to the jury regarding the law or any phase of the case. Therefore, no reversible error is shown."). In any event, article 36.25 entitles jurors to any exhibits admitted upon their request.
The jury's second note asked, "Do we get to participate/choose the length of the sentence?" Again, the record is silent as to if and how the trial court responded. A silent record creates a presumption that the trial court complied with article 36.27. Word v. State, 206 S.W.3d 646, 650-52 (Tex. Crim. App. 2006). Appellant has not rebutted the presumption, and thus, we cannot locate error in this complaint. See id.; Alvis v. State, No. 05-09-00387-CR, 2011 WL 2120510, at *3 (Tex. App.-Dallas May 31, 2011 pet. ref'd) (mem. op., not designated for publication).
One final aside, we abated the case for findings of fact regarding an exhibit and the existence of a third jury note regarding their ability to agree on a verdict. The trial court gave an Allen charge, which the record indicates the court read in open court. See Allen v. United States, 164 U.S. 492 (1896). In the findings, the parties agreed that the third note "has either been lost or destroyed" and "presumably the substance of the [third] note reflected that the jury could not reach a verdict." Carter originally relied on the fact that the part of the record showing that the court responded to the presumed hung-jury note in open court indicated that the court did not respond on the record to the first two notes. He has not filed a post-findings brief amending his second issue. We are not convinced this small inconsistency overcomes the presumption that the court followed article 36.27. See Word, 206 S.W.3d at 651-52.
Having overruled both of Carter's issues on appeal, we affirm the trial court's judgment.
JUDGMENT
Justices Reichek and Nowell participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.