Opinion
No. 05-03-01131-CR
Opinion issued November 30, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F-0247175-TQ. Affirmed.
Before Justices WRIGHT, RICHTER, and MAZZANT.
OPINION
Weston Edward Seibert appeals his conviction for murder. A jury found appellant guilty and made an affirmative finding that appellant used or exhibited a deadly weapon. The jury assessed punishment at twenty-five years' confinement. In three issues, appellant argues (1) the evidence is legally and factually insufficient to support a finding he did not act in self-defense, and (2) the court erred in overruling appellant's objections to the State's opening statements that violated his right not to testify. We affirm the trial court's judgment.
Factual Background
Eddie Barrett Encounters Appellant After visiting a friend at a Dallas bar, appellant began to drive home to Coppell some time after 2:00 a.m. on January 17, 2002. As he was driving, appellant hit a guardrail on the interstate. His airbags deployed, and a tire came off his truck. Appellant exited the freeway and drove to the Infomart parking lot, scraping the road surface as he drove due to having only three tires. He parked his truck in the Infomart parking lot and retrieved his loaded gun and an extra clip of bullets from his truck before getting out of the truck. Eddie Barrett was working as security for Infomart that night. Shortly after 2:30 a.m., Barrett radioed to security dispatch and reported he had a "drunk and belligerent" man in the parking lot. Barrett requested back-up and a police officer. Aaron Logan responded as back-up and arrived in the parking lot a few minutes later. Logan found Barrett and appellant near appellant's truck. It appeared they were talking, then appellant began to walk away. Barrett called out to appellant to return to his truck. Appellant continued to walk away. Logan and Barrett waited a short time, then Logan followed appellant on foot while Barrett followed him in the security van. Logan stated that to deter crime, the lighting in the parking lot was kept "as bright as possible at night"; however, the lighting was not as bright under the trees. As he followed appellant, Logan radioed to security dispatch and requested someone to focus the surveillance cameras to where appellant was in the parking lot. The three of them traveled over 700 feet before Barrett pulled the van in front of appellant's path. The Shooting Barrett got out of the van, and appellant walked up to the van. Logan could see Barrett and appellant, and they were only a "couple feet apart." Logan described appellant's body language as "aggressive." He saw Barrett unclip his mace-his pepper spray-from its holder near Barrett's side, and Barrett held it down at his side. By that time, Logan was close enough to hear appellant say, "What's that for?" Barrett "basically" responded, "Don't worry about what this is for, let's just get you back to your vehicle." Logan was unable to state what appellant knew or thought concerning the mace. Next, Logan saw appellant begin to back up; Barrett walked toward him. Logan walked to the front edge of the van and continued to observe. Appellant reached behind himself and Logan said to Barrett, "He's got a gun." Logan said he made that inference due to the location, time of night, and appellant's action. At that time, appellant pulled a gun from behind his back and started shooting. He shot Barrett five times. Barrett died as a result of his gunshot wounds. When appellant began shooting, Logan jumped behind the van. When the shots ended, he looked up through the windows of the van. Appellant was standing there, looking at Logan. Appellant stayed there for "a couple of seconds and then just took off running." Appellant ran toward the access road of the interstate. As soon as he could no longer see appellant, Logan went to Barrett's side. During this time, Logan was "screaming into the radio" that Barrett had been shot and they needed an ambulance. When he got to Barrett, Logan found him lying on his back. Logan had begun to check for a pulse when a police officer pulled up behind him. Logan described appellant to the police officer and informed him which direction appellant had run. Shortly thereafter, Logan was taken to view a suspect the police had apprehended, and he identified appellant as the man who had shot Barrett. Apprehending Appellant Dallas police officer Cynthia Arispe was working the Northwest patrol division on January 17. She and her partner responded to a call regarding the shooting; appellant was reported to be in their general vicinity and armed. They pursued appellant through a parking garage and through a concrete culvert. After crossing a set of railroad tracks, they went down a hill, through a "swamp" and up a hill before crossing a second set of railroad tracks. Water was around their ankles when they were crossing some of the terrain, and they encountered rocks and debris in their path. Upon crossing the second set of railroad tracks, the officers went down an alley where it had been reported appellant had been seen. They came upon a chain gate and saw mud on top of a railing of a fence at that property. By that time, the K-9 unit had already located appellant in a shed on that property. Officer O. Greg Illingworth, who was called to testify by the defense, was one of two officers who found appellant hiding under a desk in the shed. They yelled at appellant, who refused to show his hands, but appellant did not respond. Illingworth agreed that at a previous hearing, he had said appellant was "speechless and appeared to be in shock" but he also said he had "corrected that and said that [appellant] appeared shocked and not in shock." Illingworth said that saying appellant was "in shock" was merely a figure of speech. However, appellant did not respond to any questions; Illingworth was not certain if appellant was unable to respond or simply refused. Affirming his previous testimony, Illingworth agreed that when he pulled appellant from under the desk, he did not look like he knew where he was or why. Arispe saw appellant pulled out from under the desk that was in the shed and heard the officers yelling, "show us your hands." Appellant was handcuffed and turned over to Arispe and another officer who conducted a pat-down search, finding the gun used in the shooting and two clips for the gun. They then escorted appellant to a police vehicle. A few times, appellant asked "what's going on?" Arispe said he looked tired, not in shock. Arispe did not see signs that appellant was intoxicated other than appellant's red eyes, but she stated that could have been due to dirt. Dallas Police officer Daniel Carolla joined appellant in the backseat of the police car. Appellant was quiet for a time then looked at Carolla and said, "Well, why don't you guys just kill me?" After that, appellant turned away and did not look at Carolla again. Carolla stated that when they would approach civilians, appellant would stop being cooperative and would speak to a fictitious person. However, when he was with the police officers, appellant seemed to understand what the officers asked of him and to be able to hear them. Appellant's Statement Sergeant John Simonton read into the record the prior testimony of Officer William Carollo who had died prior to the trial. Carollo interviewed appellant the morning of the shooting. Carollo stated appellant did not appear as though he had been sprayed with pepper spray. Carollo read appellant his Miranda warnings then they discussed what had happened. Appellant then dictated a statement to Carollo, and appellant signed each page of the statement. Appellant's statement contained the following information:Last night at about 11:30 p.m. I went to Have a Nice Day Café to see some friends. I had a few beers and some mixed drinks. I went to the parking garage to get my 1999 Dodge Dakota. I started to drive home and then I was traveling NB on Stemmons Freeway. All of a sudden I lost control and I hit something. I'm not really sure what I hit but I know I lost a tire. I pulled the car off the road and I don't remember exactly how I got it but somehow I got my gun from the tank bag which I normally keep behind the seat of my truck. I remember being in an industrial area after that and being approached by a police officer or someone like that. The police officer was saying something to me but I couldn't understand anything he said. All of a sudden I got the gun in my hand and for some reason I started shooting the man. I didn't need a reason at all, I just shot him. I remember seeing someone else there and so I started to walk away. I think the other man was a police officer too but I'm not sure. The next thing I remember was the police chasing me. I remember seeing flashing lights and a helicopter and then they finally caught me in a residential area. When they finally got me I remembered the officers pulling the gun out of my right cargo pocket. Then I said, "What did I do?"Appellant's Testimony Appellant had been in the United States Marine Corps, and during that time, he received training in handguns. He continued to target-shoot as a hobby, even after leaving the Marine Corps. Appellant never carried a gun on his person but did frequently have one in his vehicle. Appellant kept the gun used in the shooting loaded, and he kept it either beside his bed or behind the passenger seat of his truck. Appellant stated he had, since 1998, been injured three times in which he had received a concussion. He experienced amnesia following those injuries. Appellant has bad eyesight-unable to see detail. He wore contact lenses regularly until the night of the shooting and needed to wear the contacts "to be able to function." When testifying about the night of the shooting, appellant first discussed the crash. He remembered a loud noise, and as far as he was aware, his contacts came out of his eyes. He remembered nothing else until the time he fired his gun. Appellant remembered the "flash . . . loud sounds, really louds [sic] sounds or flashes, lights, things of that nature." After the shooting, the next thing appellant said he remembered was the sound of a helicopter and flashes as if from police lights. He recalled talking to Carollo, but said he recalled very few specifics of that conversation. Appellant said about his written statement, "None of that statement makes any sense to me." He said he would not have had someone else write a statement for him and that he would not have incriminated himself. However, appellant also testified,
I remember specifically asking-I remember specifically asking Detective Carollo if the person I shot was a police officer, and he hesitated and he answered me no, and he hesitated again and he said that it was a security guard. And then I asked him-I remember these two things specifically because the answers weighing on those questions and I think it's the only time that-it stood out to me, it just stood out to me so much the weight on the answers to these questions, and I asked him if the person was dead, and he hesitated, and he said yes. I remember that. I remember that very clearly.When asked if he had been acting in self-defense when he shot Barrett, appellant responded, "Yes." He said he would not have used force against Barrett unless "truthfully in [his] heart" there was "no other option." Appellant said he could remember no more at the time of trial than he did after the shooting. Appellant concluded that he could not state "[n]o, this, and yes that" in response to questions because, he said, "I don't remember what happened." He said he knew he did not kill people and that he did not
carry a gun around with no reason to shoot at people especially. I've been trained with weapons, yes, and I do target practice, but, you know, this isn't my character, this isn't my character, and I know me, just like you know yourselves, and that's how I know that this isn't murder. . . .On cross-examination, appellant agreed that he aimed his gun at Barrett, pulled the trigger five times, and caused Barrett's death. He said he did remember the shooting, and he agreed with the prosecutor that he "could not shed any additional light on Aaron Logan's testimony because [he] just flat [did not] remember." After agreeing he was, at the time of trial, "an ordinary and prudent human being . . . in full command of [his] reasoning and [his] faculties," appellant stated that a can of mace is not grounds for deadly force in that state of mind. Appellant said he had been drinking on the night of the shooting, and he agreed that intoxication could have led to the vehicular accident. He had been unhappy about an issue with his paycheck and generally things "weren't just peachy" in his life at the time. Appellant agreed his military and medical records stated that while still in the Marine Corps, he had self-reported to an alcohol counselor with a problem that he was "an unpredictable character when drinking." Appellant said he had a "personal struggle with alcohol" and had a habit of going to the beer store and buying beer and drinking "a six-pack a day" on a regular basis. Appellant said that he agreed it was possible some of the things that happened the night of the shooting were related to the ingestion of alcohol. He did not dispute that because he could not remember what happened, but he knew he was not drunk.
Legal and Factual Sufficiency
In his first and second issues, appellant contends the evidence is legally and factually insufficient to support a finding he did not act in self-defense. Standards of Review When a defendant asserts a claim of self-defense, he has the burden of producing some evidence to support that claim. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003) (citing Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991)). Once the defendant produces such evidence, the State has the burden of disproving the defense. Id. The burden of persuasion does not require the State to produce evidence; rather, it requires only that the State prove its case beyond a reasonable doubt. Id. When the jury finds the defendant guilty, it implicitly finds against the defensive theory. Id. Credibility determination of defensive evidence is solely within the jury's province and the jury is free to accept or reject the defensive evidence. Saxton v. State, 804 S.W.2d at 914. When we review evidence to determine if it was legally sufficient to support a verdict, we view all of the evidence in the light most favorable to the verdict, asking whether any 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); Sanders State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). When a defendant challenges the legal sufficiency of evidence to support rejection of a defense such as self-defense, we examine all of the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the offense and also could have found against appellant on the defensive issue beyond a reasonable doubt. Saxton, 804 S.W.2d at 914. The factual sufficiency standard for guilt requires the reviewing court to ask, viewing all the evidence in a neutral light, whether the evidence of the appellant's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, or the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). A factual sufficiency challenge to a verdict implicitly rejecting a defense also requires us to view all of the evidence in a neutral light. See Zuniga, 144 S.W.3d at 482; Saxton, 804 S.W.2d at 914. We will not reverse unless (1) the evidence of appellant's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, or (2) the evidence in support of the defense is so strong that the beyond-a-reasonable-doubt standard for rejecting the defense could not have been met. See Tex. Pen. Code Ann. § 2.03(d) (Vernon 2003); Zuniga, 144 S.W.3d at 482, 484-85; Saxton, 804 S.W.2d at 914. Self-Defense 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 against the other's use or attempted use of unlawful force. Tex. Pen. Code Ann. § 9.31(a) (Vernon 2003). A person is justified in using deadly force against another (1) if he would be justified in using force against the other under § 9.31; (2) if a reasonable person in the actor's situation would not have retreated; and (3) when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. Id. § 9.32(a)(1)-(3)(A) (Vernon 2003). "Reasonable belief" is defined by the Texas Penal Code as "a belief that would be held by an ordinary and prudent man in the same circumstances as the actor." Tex. Pen. Code Ann. § 1.07(a)(42) (Vernon Supp. 2004-05). The penal code justification for self-defense focuses on the existence of some necessity, the circumstances under which the force was used, the degree of force used, and the type of conduct against which the force was used. Kelley v. State, 968 S.W.2d 395, 399 (Tex.App.-Tyler 1998, no pet.). The amount of force used must be in proportion to the force encountered. Id. Deadly force is not immediately necessary if a reasonable person in the position of the defendant would use some available nondeadly method of self-defense. Id. In such circumstances, a defendant's use of deadly force would not be justified. Id. (citing Tex. Pen. Code Ann. § 9.32(a)(3)). Discussion Appellant does not argue the jury could not have found the essential elements of the offense, nor does he contend the evidence of appellant's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914. Accordingly, we do not review these issues. Instead, appellant argues only that the evidence was insufficient to support a finding against self-defense. Therefore, we limit our review to the jury's implicit rejection of appellant's claim of self-defense. Appellant contends the evidence was insufficient because Barrett was the aggressor. He argues Barrett's refusal to allow appellant to leave the parking lot, his confrontation of appellant, and his removal of "a weapon"-the mace-from its holster amounted to aggression sufficient to support his claim of self-defense. We disagree. Appellant himself stated he did not remember the shooting. However, he did admit that he aimed his gun at Barrett, pulled the trigger five times, and caused Barrett's death. There was no evidence that appellant thought Barrett was carrying anything other than mace. The only implication of self-defense was appellant's assumption that he would not have shot Barrett unless there was "no other option." Appellant never stated what he believed at the time of the shooting caused him to have "no other option." Additionally, appellant stated that "an ordinary and prudent human being . . . in full command of [his] reasoning and [his] faculties" would not view a can of mace as grounds for deadly force. See Tex. Pen. Code Ann. §§ 1.07(a)(42), 9.32(a)(1)-(3)(A); Kelley, 968 S.W.2d at 399. Further, even if the jury could have taken appellant's claim that it "must have been" self defense as some evidence, the issue was a fact issue for the jury. See Saxton, 804 S.W.2d at 913-14. In his written statement, appellant said he shot Barrett but needed no reason. The jury was solely responsible for determining the credibility of the witnesses. See id. Conclusion Having examined all of the evidence in the light most favorable to the prosecution, we conclude the jury could have found against appellant on the defensive issue beyond a reasonable doubt. Saxton, 804 S.W.2d at 914. Further, having reviewed the evidence in a neutral light, we conclude the evidence in support of the defense was not so strong that the beyond-a-reasonable doubt standard for rejecting the defense could not have been met. See Zuniga, 144 S.W.3d at 482, 484-85; Saxton, 804 S.W.2d at 914. Accordingly, we conclude the evidence was both legally and factually sufficient to support the jury's implicit rejection of appellant's claim of self-defense. We resolve appellant's first and second issues against him.Appellant's Objection to the State's Opening Statement
In his third issue, appellant argues the court erred by overruling appellant's objections to the State's opening statement, contending the prosecutor "continually referred to evidence that only the appellant could supply." Appellant asserts that the comments made during the opening statement "resulted in appellant having to testify at this trial when he otherwise would not have done so, in violation of the 5th and 14th Amendments to the United States Constitution, and Article I, Sec. 10 of the Texas Constitution." Appellant, however, failed to preserve error. During the State's opening statement, the prosecutor stated the following:At 7:30 that same day, 7:30 in the evening this man, Weston Seibert, gets off work, drives to his home in Coppell after going by the beer store which was his habit, gets to his home in Coppell, has a telephone conversation with his girlfriend, visits with his sister and then decides to drive the 45-minute drive in Dallas to go to his favorite bar.
After deciding to make that 45-minute drive into Dallas, and when he gets to his favorite bar there's quite a line outside and he decides to wait in the line, so at about 12 o'clock midnight he pulls up to the bar and begins drinking and he drinks until closing time at 2 o'clock and at 2 o'clock he makes another decision to leave that bar and get into his beloved pickup truck. . . .
Ladies and gentlemen, he decided to get on the highway to make his way back to his home in Coppell. He went about a quarter mile before he impacted a guardrail and he made another decision. He decided not to leave his beloved truck in the nice wide shoulder but rather to pull off the highway on the first available exit. . . .
He pulls off on Oak Lawn and makes another choice. He chooses not to leave it in the grassy area right off of the highway but rather to negotiate an intersection. . . .At this time, appellant made an objection to the State's opening statement. The law in Texas is well settled that a prerequisite to presenting a complaint on appeal is a timely, specific objection at trial. Tex.R.App.P. 33.1(a); Tucker v. State, 990 S.W.2d 261, 262 (Tex.Crim.App. 1999). The failure to object can waive even an error involving constitutional rights. Muniz v. State, 851 S.W.2d 238, 255 (Tex.Crim.App. 1993). A party must object every time allegedly inadmissible testimony is offered in order to preserve error. Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991). When appellant objected, he did so by arguing the prosecutor was "talking about all these decisions" that appellant made. However, the prosecutor had already referenced "decisions" at least five times before appellant ever objected. As such, any objection was not timely. Even had appellant timely objected, and assuming, without deciding, the remarks were error, any error was cured by the court's instruction. See Bomer v. State, 827 S.W.2d 65, 68 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd). As requested by appellant, the court instructed the jury as to the opening statements. The court stated "that all the comments that were made by the State were comments that they intend or believe that they were going to present through testimony. The comments are not evidence themselves. . . . You will be bound by the actual testimony. . . ." We resolve appellant's third issue against him. We affirm the trial court's judgment.