No. 05-07-01081-CR
Opinion issued March 16, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F06-44862-N.
Before Chief Justice THOMAS and Justices MORRIS and FRANCIS. Opinion By Justice MORRIS.
JOSEPH B. MORRIS, Justice.
A jury convicted Rico Demetrius Ellis of capital murder. In four issues on appeal, he complains the trial court erred in denying his motions to suppress the results of a search and his written statements and in denying his requests for jury instructions on the law of self-defense and on the alleged lesser included offense of manslaughter. Concluding appellant's contentions are without merit, we affirm the trial court's judgment.
Factual background
While robbing two young drug dealers, appellant shot and killed the deceased and knocked another young man unconscious. Appellant had met the deceased and the other drug dealer when he smoked marijuana at their apartment a few weeks before the murder. During the robbery, appellant took a baggie of cocaine, gold chains, $600 cash, and a cell phone. Following the robbery, police searched a house that one of appellant's friends claimed was appellant's home. There, they found the cell phone stolen in the robbery. In a purse at the house, they found two envelopes addressed to appellant at different locations. Appellant was later arrested in Louisiana, where he gave a Texas police officer two written statements. In the first statement, appellant said, . . . I asked for some weed. When he pulled it out I asked where everything else was. That's when I came out with the little gun I had. Everybody went to panicing [sic] and one of them reached and I thought he had something so I shot the gun. Everyone paniced [sic]. I grabbed the guy's phone and left. I was high. I was on drugs. When the guy reached, I paniced [sic]. I shot the guy but I didn't want the guy to die. I was just scared. In the second statement, given approximately fifteen minutes later, appellant added, " . . . During the deal after I shot I started scuffling with one of the guys at the house. I was on marijuana X and drinking[.] I don't remember a whole lot after fighting the guy." Discussion
In his first issue, appellant claims the trial court erred in denying his motion to suppress the evidence seized during the search of the house linked to him. He specifically complains that police relied upon one person, for whom there was no proof of reliability, in determining that appellant lived at the searched residence. As the State notes in its brief, however, it was appellant's burden to show he had standing to complain about the search, i.e., that he had a reasonable expectation of privacy in the house that was searched. See Handy v. State, 189 S.W.3d 296, 299 (Tex.Crim.App. 2006). Appellant never met this burden. Accordingly, he had no standing to contest the search, and trial court did not err in denying the motion to suppress. We resolve appellant's first issue against him. In his next two issues, appellant complains the trial court erred by denying his requests that the court include in the jury charge instructions on the law of self-defense and the alleged lesser included offense of manslaughter. Appellant first complains that the trial court erred in denying his request for a jury instruction on the issue of self-defense because his first written statement contained some evidence that he acted in self-defense. When evidence from any source raises a defensive issue and the defendant properly requests a jury instruction on that issue, the trial court must submit the issue to the jury. Mendoza v. State, 88 S.W.3d 236, 239 (Tex.Crim.App. 2002). The defendant is entitled to the instruction regardless of whether the evidence justifying it is weak or contradicted and regardless of what the trial court may think of the defense. See Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App. 1996). To support his contention, appellant relies on his claim in the written statement that he shot the deceased after the deceased "reached for a gun." He additionally relies on the fact that the shooting occurred at a drug house, "a place which is notorious for violence," and the fact that the drug dealers were sixteen years old at the time of the offense, "which would lend credence to [appellant's] statement that everyone panicked." Finally, he asserts that the fact that the severely injured drug dealer left his friend bleeding to death on the floor of the apartment before paramedics and police arrived — despite the young man's claim that he left because he feared arrest — permitted the supposition that he left to dispose of the gun the deceased had allegedly pulled on appellant. Appellant's statement does not say the deceased reached for a gun. Rather, it says only that one of the young men had "reached" and that appellant thought the deceased "had something" when he shot him. Furthermore, appellant's statement acknowledges that by the time the deceased "reached" for something, appellant had already pulled out his gun. To justify the use of deadly force against another, an actor must first show he reasonably believed the force was immediately necessary to protect the actor against the other's use or attempted use of unlawful force. Tex. Penal Code Ann. §§ 9.31(a), 9.32(a) (Vernon Supp. 2008). The use of force against another is generally not justified if the actor provoked the other's use or attempted use of unlawful force. See id. § 9.31(b)(4). Here, appellant's statement makes clear that appellant provoked any movement by the deceased by pulling his gun. The evidence at trial did not raise the issue of self-defense, and the trial court did not err by refusing appellant's request for a jury instruction on the matter. We resolve appellant's second issue against him. In his third issue, appellant complains the trial court refused his request for a jury instruction on the alleged lesser included offense of manslaughter. A person commits manslaughter if he recklessly caused the death of a person. See id. § 19.04(a) (Vernon 2003). Appellant contends he was entitled to the jury instruction on manslaughter because he had no intent to kill the deceased and was acting in self-defense. To be entitled to a lesser included offense instruction, a defendant must show: (1) the lesser included offense is included within the proof necessary to establish the offense charged and (2) some evidence exists in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser included offense. See Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.Crim.App. 2000). The evidence must show the lesser included offense is a valid rational alternative to the charged offense. Id. In this case, appellant admitted he shot the gun at the deceased, though he claimed he did not mean to kill him. He further admitted he had pulled his gun shortly after entering the apartment and after asking the drug dealers where "everything else" was. Finally, he admitted he left the apartment with one of the men's phones, and he never denied he was at the apartment to commit robbery. This evidence does not show appellant's guilt for manslaughter only; instead, it shows appellant was guilty of felony murder at a minimum. To be specific, it shows that, in furtherance of his commission or attempt to commit armed robbery, appellant committed an act clearly dangerous to human life that caused the death of the deceased. See Tex. Penal Code Ann. § 19.02(b)(3) (Vernon 2003); State v. Ross, 861 S.W.2d 870, 877 (Tex.Crim.App. 1992) (op. on rehg'). Thus, appellant was not entitled to a manslaughter instruction, and the trial court did not err in denying his request for such instruction. We resolve appellant's third issue against him. In his final issue, appellant complains the trial court erred by failing to suppress his written statements. He alleges his statements were given involuntarily because there was no showing the police complied with the laws of Louisiana in procuring the statements and there was no showing of any waiver of counsel. In reviewing a trial court's ruling on a motion to suppress, we afford almost total deference to the trial court's determination of the historical facts, especially if those determinations turn on witnesses' credibility or demeanor. We review de novo the trial court's application of law to facts where the issues do not turn on credibility or demeanor. See Neal v. State, 256 S.W.3d 264, 281 (Tex.Crim.App. 2008). A defendant's statement may be used in evidence against him if it appears the statement was freely and voluntarily made. See Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2005). No written statement made by an accused as a result of custodial interrogation is admissible as evidence against him in a criminal proceeding unless it is shown on the face of the statement that, before making the statement, he received his Miranda warnings pursuant to article 38.22 of the Texas Code of Criminal Procedure. See id. art. 38.22, § 2(a). Testimony at the hearing on appellant's motion to suppress established that he received the Miranda admonishments, including the admonishment that he had the right to have a lawyer present to advise him before and during any questioning, before giving each statement. The officer taking the statements testified appellant appeared to understand each of the admonishments. Appellant initialed each of the warnings on the officer's Miranda card and signed the portions of both written statements acknowledging he had received the Miranda warnings and did not wish to consult with a lawyer. The officer testified that during the interrogation, appellant never said he wanted the interview to stop, never asked to have a lawyer present, and never indicated that he no longer wished to give a statement. Appellant was never refused bathroom breaks or food during the interview. Two witnesses to appellant's signing the statements testified that it appeared he was doing so voluntarily. The defense offered no testimony contradicting the State's witnesses on the voluntariness of appellant's statements. Moreover, appellant offers no authority to support his argument that the State had to show proof of compliance with Louisiana law for the statements to be admissible in a Texas criminal trial, and we have found none. Appellant has failed to show the trial court erred in denying his motion to suppress. We resolve his fourth issue against him. We affirm the trial court's judgment.