Opinion
No. 2-09-020-CR
Delivered: July 29, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
Appeal from the 16th District Court of Denton County.
PANEL: DAUPHINOT, McCOY, and MEIER, JJ.
MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
A jury convicted Appellant Paul Krajcovic of murder and assessed his punishment at fifty-five years' confinement. The trial court sentenced him accordingly. Appellant brings a single point on appeal, arguing that the trial court reversibly erred by submitting to the jury "a charge that improperly limited it to finding that an offense occurred prior to September 1, 2007 (the effective date of the Castle doctrine)." Appellant argues that the date of the offense was a fact issue to be determined by the jury in order for the jury to further determine whether he had a duty to retreat. Because the trial court did not err in instructing the jury, we affirm the trial court's judgment. Appellant and Jerrod DeShun (a/k/a Shawn) Scales used and sold drugs together. Darin Robinson, their friend and fellow drug user, testified that he and Shawn did drugs and watched movies at about 9:00 or 10:00 p.m. in late August, on approximately August 25 or 26 (a Saturday or Sunday) at Darin's house. Darin stated that sometime later, Appellant called Shawn, and Shawn walked to Appellant's house. Darin testified that he walked to Appellant's house to get a cigarette at around 1:00 or 2:00 a.m. Darin stated that while he was at Appellant's house, both Appellant and Shawn were in a good mood, there were no arguments between them, all three were using drugs, and both Appellant and Shawn asked him to leave because they expected some girls to come to Appellant's house. Wayne Shoffner, Darin's houseguest and fellow drug user, testified,
Q. Now, specifically talking about the last time you saw Shawn, do you remember about what day that was?
A. I knew it was on a Monday. I couldn(t tell you what the date was, but it was on a Monday.
Q. Was that in late August?
A. It might have been, yeah.
Q. Do you remember if —
A. It might have been in late August or early October. I'm not for sure. It was between one of those two.
Q. Late August, early —
A. (October.
Q. October? What about September?
A. It could have been there. I don't know. It(s been a while.But Wayne's testimony also showed that he went to Appellant's house on the same day that Shawn went to Appellant's house to meet some girls and on the same day that Darin walked down to Appellant's house to get a cigarette. (We note that that Monday would have been August 27, 2007, if we rely on the testimony of other witnesses.) Shawn left his car at Darin's house that day. By the next morning, the car was gone. On August 28, 2007, The Colony Police Department narcotics officer John Lambert, who had been investigating Appellant's house for drug activity, saw Appellant and Shawn entering Appellant's house at around 5:30 p.m. There is no evidence that anyone saw Shawn after that day. Shawn failed to report for work on August 29, and, although he usually called his mother when he returned home late, he failed to do so after August 27. The following Friday or Saturday (August 31 or September 1), Appellant called Darin and invited him to try some cocaine at Appellant's house. Darin walked into the kitchen or living room through the open garage at the back of Appellant's house, did a line of cocaine, and then left. There was no mention of Shawn. Sometime during that weekend or early during the following week, Shawn's father became worried and began searching for Shawn. On September 6, 2007, Paul Krajcovic, Jr., Appellant's father, and Paula Power, Appellant's sister, went to The Colony Police Department and spoke with Officer Andrew Longo about a possible injured or dead body at Appellant's home. Paula informed Detective Miles Outon that Appellant had told her that he had shot and killed a black person in his house and had put the body in the bathroom. That same day, Officer Longo and two other officers located Shawn's body in the master bathroom in Appellant's home. The body was past the stage of rigor mortis, which Dr. Gary L. Sisler, Deputy Medical Examiner for the counties of Denton, Johnson, Parker, and Tarrant, testified begins to set in twenty to thirty minutes after death and lasts approximately thirty-six hours. The body was "markedly decomposed," maggots infested the face, and flies were present at the scene. Sisler could not say how long Shawn had been dead, except that it was more than thirty-six hours. Detective Roy Murray answered, "True" when asked by the prosecutor, "You've learned in your investigation that that body was left in the residence for 10 days?". There was no objection. Appellant's written statement describing how Shawn's death occurred did not indicate when the death occurred, nor do the audiotapes of Appellant and his mother. In Appellant's interview with law enforcement, he indicated that he had last seen Shawn on a Tuesday night. August 28, 2007 was a Tuesday. The jury charge instructed the jury to find Appellant guilty of murder if they found beyond a reasonable doubt "that on or about the 28th day of August, 2007," Appellant intentionally caused Shawn's death. The jury was further instructed that a person is justified in using deadly force if a reasonable person in the same situation would not have retreated. Appellant argues that the trial court presumed an August 2007 date of death and improperly instructed the jury only on the law as it stood prior to September 1, 2007. The doctrine known as the "castle doctrine" became effective September 1, 2007. It relieves a person of the duty of retreating when he is justified in using deadly force against another in self-defense or defense of a third person and he has a right to be present at the location where the deadly force is used, has not provoked the person against whom the deadly force is used, and is not engaged in criminal activity at the time the deadly force is used. For offenses committed before September 1, 2007, deadly force could only be justified "if a reasonable person in the actor's situation would not have retreated." But there is no evidence that this offense occurred after August 28, 2007. Shawn was not seen alive after that date, and no one spoke to him after that date. He failed to report to work and failed to contact his mother after that date, which was unusual, according to her testimony. Further, the condition of the body when found on September 6, 2007, the degree of composition, and the presence of maggots and flies all indicate that he had been dead for some time. Appellant relies on Wayne's testimony that it could have been September when he saw Shawn alive at Appellant's house to support his position. Wayne's testimony allowing for the possibility that the last day he saw Shawn was in September, however, is not "affirmative evidence" that the last day that Wayne in fact saw Shawn was in September. Just as there must be some "affirmative evidence of a factual conflict" to require submission of a suppression issue to a jury, there must be affirmative evidence that Appellant was killed on or after September 1, 2007, to mandate a jury issue on which version of the self-defense law applied. Because there is no evidence that Shawn was alive after August 28, 2007, and there is some evidence to support a conclusion that he died on August 28, 2007, the trial court did not err by instructing the jury in accordance with the law in effect before September 1, 2007. We therefore overrule Appellant's sole point and affirm the trial court's judgment.
See Act of March 27, 2007, 80th Leg., R.S., ch. 1, § 5, 2007 Tex. Gen. Laws 1, 2 (codified as amendment to Tex. Penal Code Ann. §§ 9.31, 9.32 (Vernon Supp. 2009) (stating that offense committed before the act's effective date is governed by the sections in effect when offense was committed); Davis v. State, 268 S.W.3d 683, 697 n. 3 (Tex. App.-Fort Worth 2008, pet. ref'd).
See Tex. Penal Code Ann. §§ 9.31(.33 (Vernon 2003 Supp. 2009).
Act of May 27, 1995, 74th Leg., R.S., ch. 235, § 1, sec. 9.32, 1995 Tex. Gen. Laws 2141, 2141 (amended 2007) (current version at Tex. Penal Code Ann. §§ 9.31, 9.32 (Vernon Supp. 2009)); Davis, 268 S.W.3d at 697 n. 3.
See Madden v. State, 242 S.W.3d 504, 513 (Tex. Crim. App. 2007).
Id.