Opinion
No. 05-16-00951-CR
06-22-2017
On Appeal from the County Court at Law No. 5 Collin County, Texas
Trial Court Cause No. 005-85023-2015
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Evans
Opinion by Justice Bridges
Lawrence Vincent Pandolfi appeals his assault of a family member conviction. A jury found appellant guilty, and the trial court sentenced appellant to one hundred and twenty days' confinement, suspended for one year of community supervision. In two issues, appellant argues the trial court erred in failing to properly instruct the jury regarding self-defense and in restricting the jury's consideration of self-defense to the facts alleged in the information. We affirm the trial court's judgment.
In August 2015, appellant was charged by information with the offense of assault of a family member. At trial in July 2016, Lorraine Cody testified she is appellant's sister. On the morning of May 1, 2015, Cody made funeral arrangements for her mother, who passed away on April 30, 2015. After lunch, Cody and her uncle walked two blocks to Cody's mother's home to get some paperwork for the funeral home. Cody's key to the house did not work, so she and her uncle went around to the back of the house to see if the key would work on the back door. In the back yard, Cody saw some lounge chairs that she decided to take. As Cody and her uncle were taking the chairs out front, appellant arrived and "started to scream" and told Cody she was trespassing. Cody and appellant argued, and appellant "shoved" Cody with both hands, causing her to fall "back into the flower bed backwards."
Appellant testified he had planned to move in with his mother prior to her death in order to assist her, and he was moving in to the house on May 1, 2015. Appellant arrived at the house and saw Cody and her uncle pulling lounge chairs. Appellant asked what Cody was doing, and she said she was taking back her lawn chairs she gave her mother. Appellant asked Cody to leave, went to his car, and called his mother's probate attorney to find out if Cody "was allowed to do what she was doing." From his interaction with Cody, appellant could tell that she was "very intoxicated." Cody came "running towards the car . . . full speed . . . with her hands up in the air like she was going to break the window out of the car." Cody grabbed appellant's car door handle with "a lot" of force and appeared "irrational." Appellant opened the car door, and Cody "flew backwards, lost balance and tripped over the bricks into the flower bed." Appellant testified he did not use his hands to push or shove Cody. Appellant offered to help Cody, but he did not help her "because she was screaming" and was "so drunk and so belligerent." Appellant left because Cody's uncle said appellant should leave and Cody was "not going to stop" until appellant left.
At the jury charge conference, the prosecutor noted the self-defense language in the charge and agreed it should not be taken out. The trial judge stated it was the "standard self-defense language." Appellant's counsel stated she had no objections to the charge. The defensive charge contained the following:
Now, if you find from the evidence beyond a reasonable doubt that on or about May 1st, 2015, in Collin County, Texas, [appellant], did intentionally, knowingly or recklessly cause bodily injury to Lorraine Cody by pushing Lorraine Cody with defendant's hand, then you will next consider whether his conduct was justified.
Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will find the defendant not guilty.
You are instructed that a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself from the other's use or attempted use of unlawful force.
The use of force against another is not justified:
(1) In response to verbal provocation alone;
(2) If the actor consented to the exact force used or attempted by the other;
(3) If the actor provoked the other's use or attempted use of unlawful force, unless;
a. The actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and
b. The other nevertheless continues or attempts to use unlawful force against the actor.
The jury found appellant guilty, and this appeal followed.
"Reasonable belief" means a belief that would be held by an ordinary and prudent person in the same circumstances as the actor.
A person is under no obligation to retreat to avoid the necessity of repelling or defending, with force less that deadly force, against an attack or attempted attack.
Therefore, if you find and believe from the evidence beyond a reasonable doubt that the defendant, [appellant], is guilty as charged in one of the foregoing paragraphs, but you further find that the defendant reasonably believed the force used, if any, was immediately necessary to protect himself from Lorraine Cody's use or attempted use of unlawful force, then you will find that his conduct was justified and find the defendant not guilty.
In his first issue, appellant argues the trial court erred "when it failed to instruct the jury in the self-defense application paragraph that they must acquit appellant if they have a reasonable doubt as to whether he acted in self-defense in accordance with Section 2.03." Appellant acknowledges the charge includes the language, "[u]nless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will find the defendant not guilty," but he complains this language is not in the self-defense application paragraph.
Appellant is correct that the self-defense application paragraph should have contained an instruction that the jury must acquit appellant if they have a reasonable doubt as to whether he acted in self-defense. Allen v. State, 253 S.W.3d 260, 263 (Tex. Crim. App. 2008) (instruction deficient where it did not mention requirement that jury acquit appellant if it had reasonable doubt concerning defensive theory). We must next determine whether that error requires reversal based on the test set forth in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015). Under Almanza, the degree of harm required for reversal depends on whether the error was preserved in the trial court. Villarreal, 453 S.W.3d at 433; Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Almanza, 686 S.W.2d at 171. Where, as here, the defendant did not raise a timely objection to the jury instructions, reversal is required only if the error was fundamental in the sense that it was so egregious and created such harm that the defendant was deprived of a fair and impartial trial. Villarreal, 453 S.W.3d at 433; see Almanza, 686 S.W.2d at 171; see also Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). Because appellant did not raise a timely objection to the instructions, reversal here is proper only if the record indicates the existence of egregious harm. Villarreal, 453 S.W.3d at 433; see Almanza, 686 S.W.2d at 171.
Charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Villarreal, 453 S.W.3d at 433; see Almanza, 686 S.W.2d at 171; see also Allen, 253 S.W.3d at 264. Egregious harm is a "high and difficult standard" to meet, and such a determination must be "borne out by the trial record." Villarreal, 453 S.W.3d at 433; Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). On appeal, neither party bears the burden of showing harm or a lack thereof under this standard. Villarreal, 453 S.W.3d at 433; Warner v. State, 245 S.W.3d 458, 464 (Tex. Crim. App. 2008). We will not reverse a conviction unless the defendant has suffered "actual rather than theoretical harm." Villarreal, 453 S.W.3d at 433; Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011). In examining the record to determine whether charge error has resulted in egregious harm to a defendant, we consider (1) the entirety of the jury charge, (2) the state of the evidence, including the contested issues and weight of probative evidence, (3) the arguments of counsel, and (4) any other relevant information revealed by the trial record as a whole. Villarreal, 453 S.W.3d at 433; Almanza, 686 S.W.2d at 171.
Viewing the entirety of the jury charge, appellant concedes the charge contains the language he argues should have been included in the self-defense application paragraph. The state of the evidence here consisted of Cody's testimony that appellant "shoved" Cody with both hands, causing her to fall "back into the flower bed backwards," and appellant's testimony that Cody "flew backwards, lost balance and tripped over the bricks into the flower bed" when appellant opened his car door. Thus, depending on which version of events the jury believed, the evidence either showed appellant shoved Cody or appellant merely opened his car door and Cody lost her balance and fell on her own. Neither version of events raises the issue of whether appellant acted in self-defense. To be entitled to an instruction on self-defense, appellant was required first to admit the conduct charged and then to offer evidence justifying the conduct. See Anderson v. State, 11 S.W.3d 369, 372 (Tex. App.—Houston [1st Dist.] 2000, pet. ref'd); see also Young v. State, 991 S.W.2d 835, 839 (Tex. Crim. App. 1999). This he did not do. Arguably, the evidence shows appellant was not entitled to a self-defense instruction.
Regarding the arguments of counsel, the record shows that, during voir dire, appellant's counsel did not raise the issue of self-defense. Counsel spoke about the presumption of innocence, the right to a jury trial, and the State's burden of proving the case against appellant beyond a reasonable doubt. Counsel discussed with members of the venire the fact that appellant had a constitutional right not to testify and the jury's role in judging the credibility of witnesses. Counsel asked members of the venire questions concerning their experiences with family violence, their attitudes toward alcohol, and their reactions to losing loved ones.
In her closing argument, appellant's counsel reminded the jury of her statements during voir dire concerning how "just one" reasonable doubt was "enough for not guilty." Counsel summarized the evidence that Cody was intoxicated and belligerent on the day of the incident. In her statement to police, Cody said "she went to open the car door," but at trial Cody testified she "never touched the car door." Although Cody "fell backwards," the photographs showing her injuries showed "all injuries to the front of her person," and the photographs were not provided to police until eighty-two days after the incident. Cody claimed she was treated at the hospital, but there were no medical records in evidence. The incident happened on Friday, and "by Tuesday, at her mother's funeral, [Cody] was walking around in high heels and had no signs of physical injury." In reference to appellant's testimony, counsel argued the "act of opening the car door in order to free oneself from . . . an aggressor is a reasonable response," and appellant was afraid Cody "would bust the window open." Further, appellant could not "back out the car." Counsel argued it was true appellant "did not touch" Cody. Counsel concluded that she had "many doubts" about Cody's story, and she was sure the jury did too, and so she asked the jury to find appellant not guilty.
The record shows appellant's theory was that Cody was intoxicated and aggressive and injured herself when she tripped after appellant opened his car door. In reaching their verdict, the jury apparently rejected appellant's version of events and believed Cody's testimony that appellant shoved her with both hands, causing her to fall. The charge as a whole authorized the jury to find appellant not guilty if it had reasonable doubt as to whether he acted in self-defense. On this record, appellant has not demonstrated that he suffered actual, not just theoretical, harm from the manner in which the charge was structured. See Allen, 253 S.W.3d at 268. Accordingly, we cannot conclude appellant suffered actual egregious harm. See id. We overrule appellant's first issue.
In his second issue, appellant argues the trial court "erred when it restricted the jury's consideration of self-defense to the facts alleged in the information and testified to by" Cody. Specifically, appellant complains that the application paragraph of the self-defense instruction restricted the jury's consideration to a consideration of whether appellant "acted in self-defense to the evidentiary facts alleged in the information and testified to by Cody, namely, by being pushed with the defendant's hands." Appellant argues this restriction prevented the jury from considering appellant's version of events with regard to self-defense.
As discussed, appellant did not admit pushing Cody with his hands as charged in the indictment. To be entitled to an instruction on self-defense, appellant was required first to admit the conduct charged and then to offer evidence justifying the conduct. See Anderson, 11 S.W.3d at 372 (emphasis added). Appellant testified and his counsel argued that he merely opened his door in the face of Cody's aggression, and Cody fell on her own. If the jury had believed appellant's version of events, the jury could have found appellant not guilty without considering the law concerning self-defense. Nothing in the charge prevented the jury from considering appellant's version of events. Under these circumstances, we conclude the trial court did not err in linking the jury's consideration of self-defense to the charged offense. See id. We overrule appellant's second issue.
We affirm the trial court's judgment.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b) 160951F.U05
JUDGMENT
On Appeal from the County Court at Law No. 5, Collin County, Texas
Trial Court Cause No. 005-85023-2015.
Opinion delivered by Justice Bridges. Justices Lang-Miers and Evans participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered June 22, 2017.