Opinion
No. 05-09-00182-CR
07-31-2012
JOSE MANUEL MORALES, Appellant v. THE STATE OF TEXAS, Appellee
REVERSE and REMAND; Opinion issued July 31, 2012
On Appeal from the Criminal District Court No. 6
Dallas County, Texas
Trial Court Cause No. F07-59841-WX
OPINION ON REMAND
Before Justices Moseley, Bridges, and Fillmore
Opinion By Justice Fillmore
A jury convicted Jose Manuel Morales of murder and sentenced him to twenty-five years' incarceration. In his original brief on appeal, Morales raised four issues pertaining to the guilt phase of the trial. Specifically, Morales asserted the evidence was insufficient to support the conviction, the trial court erred by failing to grant a mistrial after the prosecutor commented on Morales's failure to testify, and the jury charge improperly instructed the jury on the duty to retreat and failed to instruct the jury that Morales's belief that deadly force was immediately necessary was presumed to be reasonable under certain circumstances. Morales also complained in two issues that the punishment charge did not require the jury to render a unanimous verdict and that trial counsel was ineffective by failing to object to the improper instruction. On original submission, we resolved all of Morales's complaints as to the guilt phase of the trial against him. We concluded the trial court's punishment charge was erroneous and that Morales was egregiously harmed by the error. Accordingly, we reversed and remanded the case for a new punishment trial.
Morales filed a petition for review in the Texas Court of Criminal Appeals. The court of criminal appeals concluded (1) the trial court's instructions in the charge at the guilt phase of trial that required the jury to determine, as a general matter, whether there was a duty to retreat were not authorized by statute and constituted an improper comment on the weight of the evidence, and (2) we did not address whether there was some evidence to support the submission to the jury that Morales's belief deadly force was immediately necessary was presumed to be reasonable under certain circumstances. The court of criminal appeals reversed our judgment and remanded the case to this Court for consideration of "any error or harm issue(s) that would logically dispose of the case." Morales v. State, 357 S.W.3d 1, 8 (Tex. Crim. App. 2011). Following remand, we gave the parties the opportunity to file supplemental briefs. See Robinson v. State, 790 S.W.2d 334, 335-36 (Tex. Crim. App. 1990). Both Morales and the State filed supplemental briefs on remand. Because we conclude Morales suffered some harm from the trial court's instructions regarding a general duty to retreat, we reverse the trial court's judgment and remand the case to the trial court for a new trial. Background
See Tex. Penal Code Ann. §§ 9.31(a), 9.32(b), 9.33 (West 2011).
Because we resolve the first issue in Morales's favor, we need not address whether the trial court erred by failing to sua sponte include in the jury charge an instruction regarding whether Morales's belief deadly force was immediately necessary was presumed to be reasonable under certain circumstances. See Tex. R. App. P. 47.1.
On December 2, 2007, Morales was a participant in a fight between the Kirby Block gang and the Manett Boys gang. During that fight, Enil Lopez was killed by being shot twice in his back. Morales does not contest that he shot Lopez. Rather, Morales argues the shooting was justified because he was defending his brother, Juan Morales (Juan), from Lopez's unlawful use of deadly force while fighting with Juan.
Testimony about the events that led up to the shooting was conflicting. Some witnesses testified Lopez was unarmed, while others testified he had a metal pipe or stick and was beating Juan with it. Some witnesses testified Lopez was beating Juan when Morales shot Lopez and that killing Lopez was the only way to stop him. However, others testified Juan and some of the other fighters were kicking Lopez and beating him with bats when Morales walked up and shot Lopez.
The jury charge contained instructions on self-defense and defense of a third person. In relevant part, the jury charge stated:
A person is justified in using deadly force against another if he could be justified in using force against the other in the first place, as set out above, and when he reasonably believes that such deadly force is immediately necessary to protect himself against the other person's use or attempted use of unlawful deadly force and if a person in the defendant's situation would not have had a duty to retreat.(emphasis added). At trial, Morales objected the jury instructions did not comply with the current statutes on defense of a third person and self-defense and requested the italicized portions of the instructions be removed from the charge. The court of criminal appeals concluded there was error in the jury charge because the italicized portions of the jury instructions were not authorized by the current statute and constituted a comment on the weight of the evidence. See Morales, 357 S.W.3d at 6.
* * *
Therefore, a person may act against another in defense of a third person, provided he acted upon a reasonable apprehension of danger to such third person, as it appeared to him from his standpoint at the time, and that he reasonably believed such deadly force by his intervention on behalf of such third person was immediately necessary to protect such person from another's use or attempted use of unlawful deadly force, and provided it reasonably appeared to such person, as seen from his viewpoint alone, that a person in the situation of the person being defended would not have had a duty to retreat.
A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described herein.
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[If] it reasonably appeared to defendant that the life or person of Juan Carlos Morales was in danger, and there was created in defendant's mind a reasonable expectation or fear of Juan Carlos Morales'[s] death or serious bodily injury from the use of unlawful deadly force at the hands of Enil Lopez and that defendant reasonably believed that, under the circumstances then existing, a person in Juan Carlos Morales'[s] situation would not have had a duty to retreat before using deadly force in his own defense, and that the defendant, acting under such apprehension and reasonably believing that the use of deadly force, by his intervention, was immediately necessary to protect Juan Carlos Morales against Enil Lopez's use of unlawful deadly force, then you will find the defendant not guilty, or, if you should have a reasonable doubt as to whether the defendant was acting in defense of Juan Carlos Morales on said occasion under the foregoing circumstances, then you should give the defendant the benefit of the doubt and find him "not guilty."
Prior to September 1, 2007, section 9.32 of the penal code provided the use of deadly force was justified only "if a reasonable person in the actor's situation would not have retreated." See Act of May 16, 1995, 74th Leg., R.S., ch. 235, § 1, 1995 Tex. Gen. Laws 2141, 2141-42 (amended 2007) (current version at Tex. Penal Code Ann. § 9.32). However, effective September 1, 2007, the Legislature amended the statute to delete existing language regarding a general duty to retreat and add new language specifying the circumstances under which a person does not have a duty to retreat. Morales, 357 S.W.3d at 4-5.
Standard of Review
In evaluating error in a jury charge, we must determine whether the error caused sufficient harm to warrant reversal. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005). If, as in this case, the defendant objected to the error at trial, we must reverse if the error "is calculated to injure the rights of the defendant," which means there is "some harm" from the error. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985 (op. on reh'g)). In evaluating whether there was some harm from the error, we consider "the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Barron v. State, 353 S.W.3d 879, 883 (Tex. Crim. App. 2011) (quoting Almanza, 686 S.W.2d at 171). In analyzing harm from a jury charge error, neither the State nor the defense has a burden to show harm. Warner v. State, 245 S.W.3d 458, 462, 464 (Tex. Crim. App. 2008). Analysis
In conducting our analysis of whether the trial court's instructions to the jury regarding a general duty to retreat caused some harm to Morales, we first look at the charge as a whole. The charge properly instructed the jury that a person commits murder if he intentionally or knowingly causes the death of an individual. The charge also defined the applicable mental states for the offense. It then instructed the jury that the use of deadly force could be justified if used in self- defense or in defense of a third person. In explaining the law of self-defense and defense of a third person, the trial court instructed the jury three times that the defense was not available if Morales or Juan had a duty to retreat. The trial court also instructed the jury on the circumstances defined by the penal code under which a person does not have a duty to retreat. Finally, the jury was instructed to acquit Morales of murder if it found, or had a reasonable doubt, that he acted in defense of Juan.
The charge, in three different places, impermissibly instructed the jury to determine whether there was a general duty to retreat. Morales, 357 S.W.3d at 5-6. Nothing in the remainder of the charge instructed the jury that it should not determine, as a general matter, whether a duty to retreat existed. See id. at 6 (jury instruction on general duty to retreat constituted comment on weight of evidence). Accordingly, the remainder of the charge did not alleviate any harm caused by the incorrect instructions.
Next, we must consider the state of the evidence and determine whether the jury charge error related to a contested issue. Morales's only defense at trial was that he shot Lopez in defense of Juan. The errors in the jury charge, therefore, were directed toward the major contested issue in the case. The State asserts the errors in the charge could not have affected the jury's decision because the evidence that Morales was justified in using deadly force was weak. However, the evidence was conflicting regarding both Juan's and Lopez's conduct during the fight and what was occurring in the fight at the time Morales shot Lopez. There was evidence before the jury that, if believed, supported Morales's claim he believed deadly force was immediately necessary to defend Juan. We cannot conclude that the evidence of justification was so weak that the trial court's instructions on the general duty to retreat caused Morales no harm.
We finally consider counsels' closing arguments. Both the prosecutor's and Morales's trial counsel's arguments focused on whether Morales shot Lopez in defense of Juan. The prosecutor argued there was no dispute about whether Morales shot Lopez; rather, the dispute was about why Morales shot Lopez and whether the use of deadly force was justified because he was defending Juan. The prosecutor contended the evidence established Morales was angry because he was knocked down during the fight, went home to get his gun, and came back and shot Lopez. According to the prosecutor, there is a difference between wanting to shoot someone and having to shoot someone. Finally, the prosecutor argued Morales and Juan could have retreated, saying, "They could have just left. . . . They didn't have to be there. Just like they ran away when - after he shot and killed that victim, they could have done that before."
Morales's trial counsel responded the evidence showed Morales shot Lopez while he was hitting Juan with a pipe and that the police investigation was not thorough. Trial counsel argued there were too many witnesses to the shooting for Morales to believe he would not be identified as the person who shot Lopez. According to counsel, the only reason Morales would have shot Lopez in front of all the witnesses was because he thought Juan was going to be killed if he did not act.
Morales's claim that he was defending Juan was the only defense raised in the case. Whether Morales's defense that he was justified in using deadly force against Lopez to protect Juan was reasonable was a question for the jury. See Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991) (issue of self-defense is issue of fact to be determined by jury); Miranda v. State, 350 S.W.3d 141, 148 (Tex. App.-San Antonio 2011, no pet.). The errors in the charge effectively denied the jury the opportunity to consider the defense based on the correct statutory standard. Reviewing the entire record, we cannot say the charge errors here did not cause some harm to Morales. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) ("[T]he presence of any harm, regardless of degree, which results from preserved charging error, is sufficient to require a reversal of the conviction." (emphasis in original)). We sustain the first issue raised in Morales's supplemental brief on remand, reverse the trial court's judgment, and remand this case for a new trial.
ROBERT M. FILLMORE
JUSTICE
Do Not Publish
Tex. R. App. P. 47
090182RF.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JOSE MANUEL MORALES, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-09-00182-CR
Appeal from the Criminal District Court No. 6 of Dallas County, Texas. (Tr.Ct.No. F07- 59841-WX).
Opinion delivered by Justice Fillmore, Justices Moseley and Bridges participating.
Based on the Court's opinion of this date, the judgment of the trial court is REVERSED and the cause REMANDED for further proceedings.
Judgment entered July 31, 2012.
ROBERT M. FILLMORE
JUSTICE