Opinion
No. 05-09-01530-CR
Opinion issued June 17, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 416th Judicial District Court, Collin County, Texas, Trial Court Cause No. 416-81547-08.
Before Justices O'NEILL, FRANCIS, and MYERS.
OPINION
Daniel David Peterson appeals his conviction for the murder of Daniel Pecina. After the jury found appellant guilty, the trial court assessed punishment, enhanced by two prior convictions, at thirty-five years in prison. In five points of error, appellant claims the evidence is legally insufficient to support his conviction and the trial court erred by denying his motion for mistrial, admitting certain evidence, and instructing the jury on provoking the difficulty. We affirm. Lisa McCluskey called 911 around midnight on May 18, 2008, to report that a man had been stabbed and needed medical attention. Responding to the call, Richardson police drove to the intersection of Plano Road and the George Bush Turnpike where there were several campsites of homeless people. When they arrived, the police found the victim, Pecina, being assisted by McCluskey and her boyfriend, David Siar. Pecina was taken to Plano Medical Center where he died from his wounds. Appellant was arrested and charged with Pecina's murder. In his fifth point of error, appellant claims the evidence is legally insufficient to support his conviction. Specifically, appellant contends the evidence showed he acted in self defense and his use of force was reasonable under the circumstances. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). We defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326. When an appellant challenges the legal sufficiency of the evidence supporting a jury's rejection of a self defense claim, we do not look to whether the State presented evidence which refuted appellant's self defense testimony; rather we determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of the offense "beyond a reasonable doubt and also would have found against appellant on the self defense issue beyond a reasonable doubt." Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). A person commits an offense if he intentionally or knowingly causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1) (West 2011). A person is justified in using deadly force against another when he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. Tex. Penal Code Ann. §§ 9.31, 9.32 (West 2011). The use of force against another is not justified in response to verbal provocation alone or if the actor provoked the other's use or attempted use of unlawful force. Tex. Penal Code Ann. § 9.31(b). The indictment and jury charge alleged that, on or about May 19, 2008, appellant intentionally or knowingly caused Pecina's death by stabbing Pecina with a knife, a deadly weapon. The charge defined self defense and instructed the jury that self defense was not justified in response to verbal provocation or if the actor provoked the other's use or attempted use of unlawful force. While the trial court included self defense in the application paragraph of the charge, it did not include provoking the difficulty. The evidence shows that on the night of May 18, McCluskey drove to visit her boyfriend, Siar, who was homeless. Siar lived at a campsite in a grove of trees off Plano Road near the George Bush Turnpike in Plano. After parking her car, she met appellant who asked for a ride to the local RaceTrac convenience store. McCluskey agreed and drove appellant to the store where he bought beer and some gas for McCluskey's car. When they returned to Plano Road, McCluskey asked appellant to walk her to Siar's tent because the sun had gone down and she did not feel comfortable walking there alone. When they got to the campsite, Siar was in his tent and Pecina was sitting nearby. Pecina made a sarcastic remark about appellant walking McCluskey to Siar's tent, but appellant ignored it. Pecina continued making comments and bragged about being a boxer. Appellant left the area but later returned for his beer. When he came back, Pecina continued making sarcastic remarks and bragging. The two men had words and, according to McCluskey, the situation became hostile. McCluskey decided to leave. She grabbed her purse and cellphone and walked out of the campsite. Siar followed her out of the grove, and the two talked for about five minutes before they heard Pecina yell Siar's name. They rushed back to the campsite; Siar arrived a little before McCluskey because she got lost. Pecina was there but appellant had gone. Pecina asked for a beer, then said he was going to lie down in Siar's tent. Siar and McCluskey went with Pecina into the tent. Siar asked Pecina for a light, and Pecina told him to reach in his pocket. When Siar did so, he felt something sticky and wet. Using McCluskey's cellphone for light, the two examined Pecina and discovered he was bleeding. McCluskey called 911. Siar had known Pecina for about eight months. He testified to similar facts, adding that appellant and Pecina began arguing as soon as appellant arrived. Siar asked them both to leave. The verbal argument between Pecina and appellant continued with each one claiming to be the tougher man. McCluskey left the campsite, and Siar followed her. When he looked back, he saw appellant and Pecina "going at it." Although Siar did not see who threw the first punch, appellant appeared to be the aggressor. Siar decided to let them fight and go after McCluskey. He and McCluskey talked outside the grove for about twenty minutes. They heard Pecina call for Siar and ran back to the campsite. McCluskey was slower and got lost so she arrived well after Siar. When Siar got there, Pecina was on top of appellant, "slugging away." Siar grabbed Pecina and pulled him off appellant. He then told appellant to leave. Pecina said he felt weak and tired and wanted to lie down. He went inside Siar's tent and the other two followed him. McCluskey wanted a cigarette so Siar asked Pecina for his lighter. Siar reached in Pecina's pocket and found the wound. Siar stated he did not see either appellant or Pecina holding a knife. Russell Clendenon was homeless and living under a bridge on the George Bush Turnpike near Plano Road in May 2008. On the night of Pecina's death, appellant walked up to Clendenon who was sitting under the bridge. Appellant was bloody and looked like he had been beaten. He asked for a cigarette and a clean shirt. Clendenon gave him both and asked what had happened. Appellant said he had been just helping somebody out. Appellant took off his bloody shirt and threw it by a fence. Clendenon showed him where the water spigot was, appellant cleaned up, and then walked away. The following day, Clendenon showed police where the shirt was. About two weeks later, Clendenon found a pocket knife in one of the crevices under the bridge. He later turned it over to police. Clendenon knew appellant had a knife and pepper spray for protection. The knife he found looked like the knife appellant carried. Dr. William Rohr, the Collin County medical examiner, testified Pecina died from multiple stab wounds. According to Rohr, Pecina had eleven stab wounds: two in the left upper chest, one in the back of his left thigh, and the remaining eight to the back left side of Pecina's body. Three stab wounds penetrated his abdominal cavity and contributed significantly to his death. Pecina also had contusions and scrapes consistent with having been in a fistfight. Detective Dan White identified appellant's bloody shirt and the knife found by Clendenon. The knife was the weapon used to stab Pecina. Lorna Beasley, the DNA section manager for the Texas Department of Public Safety crime laboratory, reported that appellant's shirt and knife contained Pecina's DNA as well as appellant's DNA. Dale Dowdy, a felony criminal investigator with the Collin County district attorney's office, identified a recording of a telephone call between appellant and his mother. In the conversation, appellant said he did not murder Pecina. He later said he "was just in the wrong place at the wrong time." He did not tell his mother he was defending himself and when she asked if he was going to plead self defense, he told her he "hadn't gotten to court yet." Although appellant did not testify, Sarah Scott stated she took photographs of appellant the day after Pecina's death. She described appellant as looking "visibly beat up" with a black eye, scrape marks all over, and some severe bruising on the back of his arm. She did not know how appellant got the marks but said he looked worse in person than he did in the photographs. In addition, one of the paramedics who arrived at the scene testified Pecina was intoxicated and difficult to restrain. The emergency room surgeon stated Pecina had cirrhosis of the liver which made it more difficult for him to survive the injuries. The surgeon likewise stated Pecina was extremely intoxicated. Although appellant claims the evidence shows Pecina was the aggressor, Siar and McCluskey each testified both men were arguing and hostile. Siar said appellant advanced toward Pecina and appeared to be the aggressor. To the extent appellant claims there is no evidence he used unreasonable force or his use of deadly force was unreasonable, the evidence showed both men had bruising, scrapes, and contusions consistent with a fistfight; Pecina, however, had eleven stab wounds, resulting in his death. Appellant did not tell Clendenon or his mother that he acted in self defense. From these facts, the jury could reasonably infer appellant's bruises and scrapes were not the result of deadly force and, therefore, appellant had no right to defend himself with deadly force. After viewing all the evidence in the light most favorable to the prosecution, we conclude any rational trier of fact would have found the essential elements of murder and the same rational trier of fact would have found against appellant on the issue of self defense. See Saxton, 804 S.W.2d at 914. We conclude the evidence is legally sufficient to support appellant's murder conviction. We overrule appellant's fifth point of error. In his first point of error, appellant contends the trial court erred by denying his request for a mistrial. Appellant filed a motion in limine to prevent the State from introducing evidence showing appellant had "been described as `aggressive' and any references to other assaultive behavior" without first seeking leave of court. Appellant claims the State violated the motion when Clendenon, a State's witness, testified appellant pulled a knife on him on a prior occasion. Appellant claims the testimony was so prejudicial, no curative instruction could undo the harm. Mistrials should be granted only when an objectionable event is "so emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against the defendant." Sanders v. State, 25 S.W.3d 854, 858 (Tex. App.-Houston [14th Dist.] 2000), pet. dism'd, improvidently granted, 56 S.W.3d 52 (Tex. Crim. App. 2001). Because curative instructions are presumed sufficient to withdraw from jury consideration almost any argument that is objectionable, the offending argument must be extreme before a mistrial is warranted. See id. Here, there is nothing to suggest the improper argument was so extreme or inflammatory that jurors could not disregard the comment. The trial court promptly instructed the jury to disregard "the last series of questions pertaining to an event that . . . allegedly happened between this witness and the defendant," and we presume that instruction is effective. We conclude a mistrial was not appropriate under the circumstances presented here. We overrule appellant's first point of error. In his second and third points of error, appellant claims the trial court erred by admitting (1) a recorded phone call between appellant and his mother and (2) several photographs of Pecina and his wounds. Texas Rule of Appellate Procedure 38 provides a brief shall contain, among other things, a concise, nonargumentative statement of the facts of the case, supported by record references, and a clear and concise argument for the contention made with appropriate citations to authorities and the record. Tex. R. App. P. 38.1(h), (i). In both issues, appellant cites one case as authority for the standard of review but cites no authority for the substantive law behind his complaints. Appellant fails to analyze the law and apply it to the facts of his case. Furthermore, he does not show how he was harmed by the purportedly erroneous admission of the evidence. Because he does not present analysis supported by legal authority for his complaints, we conclude these points are inadequately briefed. See Gallo v. State, 239 S.W.3d 757, 768 (Tex. Crim App. 2007); Salazar v. State, 38 S.W.3d 141, 147 (Tex. Crim. App. 2001). We overrule appellant's second and third points of error. In his fourth point of error, appellant claims the trial court erred by including the instruction/definition of self defense as it relates to provoking the difficulty. Initially, we question whether appellant adequately briefed this issue. As was the case in points two and three, appellant makes brief reference to one case but provides little analysis of the law on provoking the difficulty and has no application of the law to the facts of his case. Nevertheless, even if we address his complaint and assume the trial court erred by including the instruction, appellant cannot show he was harmed. Because the trial court did not include provoking the difficulty in the application paragraph of the jury charge, the application paragraph of the charge gave appellant the right of self defense without limitation. In other words, under the jury charge in this case, the jury was not authorized to reject appellant's claim of self defense because appellant provoked the difficulty. See Campbell v. State, 910 S.W.2d 475, 477-78 (Tex. Crim App. 1995); Michel v. State, 834 S.W.2d 64, 69 (Tex. App.-Dallas 1992, no pet.). Under these circumstances, we cannot conclude the trial court's action harmed appellant. We overrule his fourth point of error. We affirm the trial court's judgment.