Opinion
No. 05-08-00180-CR
Opinion issued July 17, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F06-01333-RYR.
Before Justices MORRIS, WRIGHT, and MOSELEY.
OPINION
Larry Chiraine Franklin appeals his conviction for the murder of Christopher Cobbins. After the jury found appellant guilty, it assessed punishment at thirty-five years' confinement and a $10,000 fine. In three points of error, appellant contends: (1) the evidence is factually insufficient to disprove that appellant acted in self-defense; (2) the trial court erred by not declaring a mistrial when the State told the venire that possession of a gun precludes self-defense; and (3) the trial court erred by not declaring a mistrial when the deceased's brother testified, during punishment phase, that another brother in the family had been murdered. We overrule appellant's points of error and affirm the trial court's judgment.
Background
Appellant voluntarily turned himself in and, without counsel, allowed police to record his statement. The State offered the recording as State's Exhibit 20. On a Friday night, appellant was playing dominoes and drinking beer on a friend's porch. Cobbins came out from a neighboring home and joined them. After appellant and Cobbins exchanged heated words, appellant turned his back on Cobbins, and Cobbins started hitting him. Appellant did not defend himself. He was not carrying his gun, even though he normally carries it for protection. Appellant begged Cobbins to stop beating him. After a neighbor pulled Cobbins away, appellant tried to leave in his truck. The neighbor grew tired of "tussling" with Cobbins and released him. Cobbins followed appellant and told him that he should take his keys to stop him from leaving. Appellant told Cobbins that it was enough that he had "busted him up" and he just wanted to go home to wash the blood off his face. To escape, appellant slammed his truck door on Cobbins. Even after that, Cobbins beat on the truck window and, as appellant was driving away, Cobbins ran after the truck like a "mad animal." Appellant believed he was high. Appellant returned later that night to try to "wash this over," but Cobbins was gone. Appellant said he was afraid of Cobbins, who had a reputation for being violent, both before and after spending time in prison. When appellant went outside on Saturday morning, Cobbins was outside as well. Appellant was carrying his gun as he normally does for protection. He did not approach Cobbins. Cobbins told appellant, "Let me get my gun," and walked to his truck. After going to his truck, Cobbins began to approach appellant. Appellant felt that he had no choice but to shoot him. Appellant did not trust Cobbins, who had punched him from behind the night before. Early in his statement, appellant explained that he shot Cobbins because "sometimes you have to put it where it belong" and at another point he explained he did what "a man should do" if he is "pinned down." Appellant stated several times that he knew Cobbins for a long time and never wanted to hurt him. Four of the witnesses at trial testified that they were present Saturday morning, the morning of the shooting. None of the witnesses saw Cobbins with a gun. Three of those witnesses were also present the previous night. They all testified, in their own words, that the fight was one sided and that appellant tried to retreat. Anthony Craig Lawton testified that he was present during the fight and during the shooting. According to Lawton, appellant and Cobbins began to argue. Cobbins would not leave appellant alone, and eventually Cobbins hit him, knocking appellant to the ground. They fought for about ten minutes until appellant was finally able to get into his truck and leave. Lawton denied that after the fight Cobbins told appellant Cobbins was going to kill appellant or take his keys. About forty minutes after the fight, appellant returned on foot. Appellant said "I'm going to kill him. I'm going to kill him," then walked past Lawton and fired a shot in the air. Cobbins hid behind a nearby house. After several people told appellant that Cobbins was gone, appellant eventually left. The next morning, Cobbins came over to Lawton's house and told Lawton that if he saw appellant he wanted to "squash it," to apologize. Later, appellant walked up and called Cobbins by his name. Cobbins went to appellant and extended his hand, as if to shake hands. Appellant shot him in the stomach and said "I told you I was going to kill you." Cobbins said, "I can't believe you shot me for nothing." Appellant then waved the gun in Cobbins's face as if he was going to shoot him again. Lawton yelled "you shot him once, don't shoot him no more." At that point, appellant walked away. Lawton said Cobbins did not have a weapon. In a written statement, given after the shooting, Lawton did not mention that appellant called Cobbins over directly before the shooting, even though he admitted that police asked him to include every important detail in his statement. Erma Hurndon testified that she was present both during the fight and the shooting. Hurdon explained that Cobbins and appellant got into a fight and Cobbins "took it too far." At one point Cobbins knocked appellant to the ground and then after appellant made it into his truck, Cobbins chased appellant's truck. Hurdon denied that Cobbins threatened to kill appellant. Appellant then "came back around" and started shooting. He may have fired a couple of shots. She also testified that the next morning, she saw Cobbins and Lawton on the porch talking. As she was walking to a nearby house, she saw Cobbins walk toward appellant. Appellant shot Cobbins, turned around, and started walking down the street. Hurdon did not hear appellant call Cobbins's name nor did she hear Cobbins threaten appellant. Beverly Harris testified that she saw appellant leave after the fight and was present at the shooting. After the fight, she saw appellant return to the scene. There were several discrepancies between Harris's testimony at trial and a written statement she signed before the trial. At trial, she testified that appellant returned the night of the fight and fired the gun once in the air. In her written statement, she said the gun was fired twice. At trial, she testified that on the day of the shooting, she saw appellant motion and call for Cobbins to come towards him but did not see Cobbins go to his car. In her written statement, she did not mention that appellant motioned for Cobbins. At trial, Harris testified she saw Cobbins extend his hand and then appellant shot him and walked away. But in her written statement, she said they shook hands. Anthony Grant testified that he was only present during the shooting. He was talking to Cobbins for about forty seconds when Cobbins noticed appellant. He did not hear appellant call Cobbins toward him, but saw Cobbins walk towards appellant and extend his hand to shake hands when appellant shot him. Afterwards, appellant said something like "he messed with the wrong M-F." But in a previous written statement he said appellant told Cobbins, "Don't fuck with the wrong one. You fucked with the wrong one." Appellant offered Defendant's Exhibits 2 through 4, which documented Cobbins's prior convictions for attempted murder and aggravated assault as well as a revocation of probation for the aggravated assault conviction. After hearing this and other evidence, the jury found appellant guilty of murder. This appeal followed.Sufficiency of the Evidence
In his first point of error, appellant contends the evidence is factually insufficient to support his conviction. Specifically, appellant contends we must reverse his conviction because the State's witnesses are not credible. The State maintains the jury was free to believe its witnesses and reject appellant's claim that he shot Cobbins in self-defense. After reviewing the record, we agree with the State. When reviewing a challenge to the factual sufficiency of the evidence, we view the evidence in a neutral light and ask whether a rational jury could find guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006) . To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of evidence contradicts the fact finder's verdict. Id. at 417. We cannot conclude a conviction is "clearly wrong" or "manifestly unjust" simply because we would have voted to acquit. Id. The fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony and may draw reasonable inferences and make reasonable deductions from the evidence. See Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996); Smith v. State, 895 S.W.2d 449, 452 (Tex.App.-Dallas 1995, pet. ref'd). A person commits the offense of murder if he intentionally or knowingly causes the death of an individual, or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1), (2) (Vernon 2003). However, a person is generally justified in using deadly force against another if he reasonably believes that deadly force was necessary to protect himself against the other's use or attempted use of unlawful deadly force, and a reasonable person in the actor's situation would not have retreated. Tex. Penal Code Ann. §§ 9.31(a), 9.32(a) (Vernon 2007). A defendant has the burden of producing some evidence to support a claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003); Saxton v. State, 804 S.W.2d 910, 913-14 (Tex.Crim.App. 1991). Once the defendant produces some evidence, the State then bears the burden of persuasion to disprove the raised defense. Saxton, 804 S.W.2d at 913. The burden of persuasion does not require the State to produce evidence; it requires only that the State prove its case beyond a reasonable doubt. Id. Thus, to convict a defendant of murder after he has raised the issue of self-defense, the State is required to prove the elements of the offense beyond a reasonable doubt and to persuade the jury beyond a reasonable doubt that the defendant did not kill in self-defense. Id. A determination of guilt by the jury implies a finding against the defensive theory. Id. at 914. Here, the record shows that less than an hour after fighting with Cobbins, appellant returned looking for Cobbins and carrying a gun. Lawton testified appellant said he was going to kill Cobbins. Lawton, Hurndon, and Harris testified that appellant fired the gun into the air and searched for Cobbins. The next morning, appellant returned looking for Cobbins. Again, he was carrying a gun. Lawton and Harris testified that appellant called Cobbins to him. The only evidene supporting appellant's claim of self-defense came from appellant's confession. None of the other witnesses saw Cobbins with a gun. Lawton testified that after shooting him, appellant said "I told you I was going to kill you." Grant testified he said something like "he messed with the wrong M-F." In appellant's own words, he shot Cobbins because "sometimes you have to put it where it belong." The jury was free to decide which witnesses were credible and what weight to apply to the evidence. A rational jury could conclude, beyond a reasonable doubt, that appellant did not act in self-defense. Thus, we conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's first point of error.Mistrial
In his second and third points of error, appellant contends the trial court abused its discretion by denying his motions for a mistrial. In particular, appellant maintains the trial court erred by denying his motion after (1) the State informed the venire that possession of a gun precludes self-defense, and (2) the deceased's brother, Todd Cobbins, testified, during punishment, that the deceased was the second brother in the family to be murdered. When reviewing a trial court's ruling on a motion for mistrial, an appellate court must uphold the trial court's ruling if it was in the zone of reasonable disagreement. Archie v. State, 221 S.W.3d 695, 699-700 (Tex.Crim.App. 2007) (citing Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App. 2004)). Only in extreme circumstances where the prejudice is incurable, will a mistrial be required. Gallo v. State, 239 S.W.3d 757, 775 (Tex.Crim.App. 2007) (citing Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003)); Archie, 221 S.W.3d at 699 (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004)). A mistrial is appropriate only for "a narrow class of highly prejudicial and incurable errors" and may be used to end trial proceedings when the error is "so prejudicial that expenditure of further time and expense would be wasteful and futile." Hawkins, 135 S.W.3d at 77. When determining whether to grant a mistrial, the trial court should balance three factors: (1) the severity of the misconduct; (2) the trial court's measures to cure the misconduct (i.e. the efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent the misconduct. Archie, 221 S.W.3d at 700; Hawkins. 135 S.W.3d at 77. Ordinarily, a prompt instruction to disregard will cure error associated with an improper question or answer. Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000). In his second point of error, appellant contends the trial court should have granted a mistrial because the State informed the venire that possession of a gun precludes self-defense, a misstatement of the law. The State responds that because appellant only asked the trial court to strike the statement of a prospective juror, appellant did not preserve the error. Although we find that the error was preserved, we overrule appellant's second point. The record reflects that during the State's voir dire examination, the following exchange occurred:[JUROR]: You come to me, we've got an issue. You go — we meet in the street, you've got a gun, I don't know it. We get into a whatever and you shoot me. That's intent 'cause you brought the gun out beforehand.
[THE STATE]: That's why you can't claim self-defense when you bring — when you bring a gun.
[APPELLANT]: Your Honor, I'm going to object. That was a misstatement of the law, and I don't want the rest of the panel —
THE COURT: All right, I'll sustain the objection.
[APPELLANT]: Ask for the panel to be instructed to disregard the last comment by juror No. 24, and ask for a mistrial.
THE COURT: You're instructed to disregard that comment.
[APPELLANT]: And we move for mistrial at this time.
THE COURT: That's denied. Basically what he's talking about is, say you get in a barroom scuffle over a gambling debt or something stupid like that, you can't go under the pretense of seeking an explanation armed and go confront that person and then when it escalates again, like it probably is going to, pull out your gun and shoot him and say, oh, self-defense. That's what the law is saying. Okay? Because generally, there's certain types of people in this world that can't let something go. We all have experienced that. So that's what the law is, is talking about those type situations. Any other questions on that?Error is preserved if the basis of the complaint is apparent from its context. Tex. R. App. P. 33.1(a)(1)(A). Even though appellant asked the trial court specifically to "disregard the last comment by juror No. 24," appellant objected directly after the State's comment to juror No. 24. Further, appellant complained of a "misstatement of the law." Accordingly, we find, in context, that the error was preserved. Assuming the State's comment was error, the State's conduct was not severe. With respect to curative measures, both the trial court and later the State took measures to correct the misstatement. After the trial court sustained appellant's objection and instructed the jury to disregard the complained-of statement, the trial court provided a hypothetical that correctly stated the law. The jury charge, also correct, stated 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 unlawfully carrying a weapon." And the State, in its closing argument, correctly stated ". . . remember that one of the ways you can't, you're not justified in using force is when you seek explanation from the other actor involving your differences while you're unlawfully carrying a weapon. He'd told you in his statement that he habitually carried a weapon, and that's unlawful. He unlawfully carried a weapon when he sought out the differences, he called him over there. He's not allowed to use force. Self-defense doesn't even apply. He's not allowed to use any force at that point." An instruction to disregard will cure such error unless the prosecutor's remark was so inflammatory that its prejudicial effect could not be overcome by such an instruction. See Blondett v. State, 921 S.W.2d 469, 474 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd). Under these circumstances, we conclude the trial court's prompt instruction to disregard was sufficient to cure any error and the trial court did not abuse its discretion by overruling appellant's motion for new trial. We overrule appellant's second point of error. In his third point of error, appellant contends the trial court should have granted a mistrial because, during punishment, the deceased's brother repeatedly mentioned his other murdered brother. The State contends this complaint was not preserved because appellant failed, at least twice, to object to these statements. Again, we disagree. In determining whether a complaint has been preserved for appeal, the issue is whether the party clearly made the trial court aware of what he wants and why he is entitled to it when the trial court can still do something about it. Keeter v. State, 175 S.W.3d 756, 760 (Tex.Crim.App. 2005) . Thus, redundant objections to repetitions of the same matter for the same reason are not necessary. See, e.g., Graham v. State, 710 S.W.2d 588, 591-92 (Tex.Crim.App. 1986) . The record reflects appellant clearly and specifically objected to Todd Cobbins's statements so that the trial court was aware of what appellant wanted and why. The trial court, and even the State, asked Todd Cobbins not to refer to the death of his other brother, but he persisted beyond these requests and over two objections by appellant. Appellant also asked the trial court, twice, for a mistrial and complained that the statements were irrelevant. Under these circumstances, we conclude error was preserved. Here, the jury could infer from Todd Cobbins's collective statements that he is the only remaining brother in his family and that the deceased's death was harder on him emotionally than it would have been without that death. Although these statements may have initially produced sympathy, they are no more emotionally charged than the testimony in Simpson and are not so emotionally charged that the jury could not disregard them. See Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003) (error from testimony regarding family's testimony "calling for the death penalty" cured by instruction). Both the trial court and the State told Todd Cobbins not to refer to the death of his other brother and the trial court instructed the jury to disregard the testimony. The State did not refer to or emphasize the complained-of testimony. Finally, in light of appellant's admission that he killed Cobbins and the testimony provided by the eyewitnesses, it is unlikely Todd Cobbins's testimony had any effect on the jury's determination of punishment. Because the complained-of testimony was neither so offensive nor so flagrant that the trial court's instructions to the jury to disregard could not have cured the error, we conclude the trial court did not abuse its discretion by denying appellant's motion for mistrial. We overrule appellant's third point of error. Accordingly, we affirm the trial court's judgment.