No. 05-03-01292-CR
Opinion Filed: April 20, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court Dallas County, Texas, Trial Court Cause No. F01-75868-LU. Affirmed.
Before Justices MOSELEY, FITZGERALD, and LANG
Opinion By Justice MOSELEY.
Appellant Akio Montrail Smith shot and killed Corey Jones. Although appellant claimed he acted in self-defense, a jury convicted him of murder and assessed punishment at forty-eight years' confinement. In four points of error, appellant contends: (1) the evidence is factually insufficient to support the jury's implicit finding on the issue of self-defense; (2) the trial court erred by failing to instruct the jury that, before it could consider extraneous offense evidence, it must find the State proved those acts beyond a reasonable doubt; (3) the trial court erred by instructing the jury regarding the availability of good conduct time credit; and (4) article 37.07, section 4(a) of the code of criminal procedure regarding good conduct time is unconstitutional as applied to appellant. We overrule appellant's points of error and affirm the trial court's judgment.
FACTUAL SUFFICIENCY-SELF DEFENSE
In his first point of error, appellant contends that the evidence is factually insufficient to support the jury's implied finding on the issue of self defense. A.
Applicable Law 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). The use of force against an individual is not justified in response to verbal provocation alone. Id. § 9.31(b)(1). A person is justified in using deadly force against another (1) if he would be justified in using force against the other under section 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). 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)). B.
Standard of Review When a defendant challenges the factual sufficiency of the evidence to support the rejection of a defense, the reviewing court reviews all of the evidence in a neutral light and asks whether the State's evidence taken alone is too weak to support the findings and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. See Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex.Crim. App. 2003). The State is not required to affirmatively produce evidence to refute a defendant's self-defense claim, but must prove its case beyond a reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). The issue of self-defense is an issue of fact to be determined by the fact finder. See id. at 913. A verdict of guilty is an implicit finding rejecting the defendant's self-defense theory. See id. at 914. We measure the sufficiency of the evidence against a hypothetically correct charge which "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried . . . regardless of the specific wording of the jury charge actually given." Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997); see Warren v. State, 971 S.W.2d 656, 659 (Tex. App.-Dallas 1998, no pet.) (noting appellate courts measure legal and factual sufficiency of the evidence against a hypothetically correct charge). C.
Evidence The record contains evidence that, on the evening of October 19, 2001, Jones and Beverly Shinn drove to an apartment building in Dallas. Jones walked up to a third floor apartment to discuss selling a stereo to Devan Lawrence, who was among those in the apartment. Appellant arrived thereafter. Shortly after appellant arrived, Jones went downstairs to get into the car and leave. Lawrence testified that appellant followed Jones and "had words" with Shinn, who was sitting in the passenger seat. Lawrence observed appellant reach into the car and remove the keys from the ignition. Then Jones got out of the car, and Jones and appellant "had words." Appellant asked Lawrence to hold his gun, but Lawrence refused. Jones and appellant walked up the steps and stood on the balcony in front of the apartment, arguing about the keys. According to Lawrence, Jones was trying to get the keys and was about to leave. Appellant and Jones moved into the apartment, still arguing and "tussling," that is, Jones was trying to get the keys from appellant's pocket, but Lawrence told them to leave. According to Lawrence, Jones did not have a gun, and appellant and Jones were not punching or swinging at each other. Lawrence heard Jones say something to appellant, although Lawrence did not hear what Jones said. Then appellant said to Jones, "You threatening me?" and immediately pulled out a "metallic silver, grayish color" nine millimeter automatic handgun and shot Jones. Jones grabbed Lawrence, and Lawrence pulled him into the apartment and closed the door because appellant was still "aiming the gun" at the apartment. Jones later died from a single gunshot wound. After the shooting, appellant left the scene. Kenley Holloman, a friend of appellant's, testified that appellant had been with Holloman at Holloman's house earlier that day, and Holloman had seen appellant with a chrome gun which Holloman thought was a nine millimeter. Holloman testified that, after the incident, appellant told Holloman that appellant and Jones had "got into it over some car keys." Beverly Shinn testified she and Jones were about to leave the apartment building parking lot, when appellant came down from the apartment and started beating on the front passenger window. Appellant looked "crazy" to Shinn. Shinn told Jones to leave, but Jones got out of the car to talk to appellant. Then appellant went to the driver's side, jumped into the seat, tried to drive away, and grabbed the key when the car would not move. According to Shinn, appellant and Jones began arguing, but were not "punching each other." Appellant yelled to a man on the balcony to come and get his gun. Shinn heard them arguing while they were going up the stairs, and then she heard a gunshot. According to Shinn, Jones did not own a gun, and did not have either a gun or a knife on the night of the incident. Kevin Brown was also in the apartment. He testified that appellant went down to Jones's car and argued with Shinn. Brown also observed appellant and Jones arguing. According to Brown, appellant asked Lawrence to hold his gun, and Lawrence refused. Jones and appellant continued to argue as they walked up the stairs to the apartment. Jones tried to get his key from appellant, who pushed Jones away. Brown and Lawrence tried to break up the verbal argument and the "tussling" over the keys. According to Brown, appellant and Jones were on the balcony when appellant was saying he was "going to knock him [i.e., Jones] out." Then Jones said, "If you put your hands on me, then I'm going to kill you." Brown heard appellant say "You threatening me?" and then saw appellant pull out a grey nine millimeter handgun and shoot Jones. Brown never saw Jones with a gun or a knife, and he did not see Jones swinging at appellant. Appellant testified that, on the night of the incident, he went to the apartment to buy drugs, but he did not see Shinn, did not go downstairs until after he shot Jones, and did not have a gun. Appellant testified that he owned a .45 caliber handgun, but did not own a nine millimeter handgun. According to appellant, he and Jones were arguing over Jones's speaking of appellant's cousin who was in jail after shooting and killing Jones's mother, an event that had happened ten or eleven years previously, when appellant was a little boy, and had never previously been mentioned between appellant and Jones. Appellant testified that Jones said to him, "On my mama, I'm fixing to kill you just like your cousin killed my mama." Appellant asked Jones if Jones were threatening him. Then, according to appellant, Jones reached down in his pants for a chrome or black gun, "fumbling, just like he was drunk," but Jones's gun was caught on a belt loop. According to appellant, Brown was standing next to appellant, holding a nine millimeter. Appellant reached to the side, grabbed the gun from Brown and, without aiming, shot towards Jones. Appellant testified that Jones dropped his gun. A police officer testified that he found a cartridge casing from a nine millimeter semi-automatic handgun on the ground under the stairwell leading to the apartment. No guns were recovered from the scene. D.
Discussion Appellant contends there is no dispute that Jones threatened appellant's life. Appellant cites Brown's evidence that Jones said to appellant, "If you put your hands on me, I'll kill you" and appellant's testimony that he thought Jones intended to kill him and the verbal threat was backed up when Jones started fumbling for his waistband Appellant argues that he had the right to defend himself against apparent danger to the same extent as actual danger, and that he acted upon a reasonable apprehension of danger as it appeared to him at the time. See Dyson v. State, 672 S.W.2d 460, 463 (Tex.Crim.App. 1984). Apparent danger is a facet of self-defense. Brooks v. State, 548 S.W.2d 680, 684 (Tex.Crim.App. 1977). If raised by the evidence, on timely request, a defendant is entitled to have the jury instructed that he may defend himself from apparent as well as actual danger as viewed from his standpoint at the time. Id. However, the standard charge on self-defense does not encompass apparent danger. See Torres v. State, 7 S.W.3d 712, 715 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd). Here, appellant did not request an "apparent danger" instruction, nor was such an instruction submitted to the jury. However, assuming without deciding that a hypothetically correct jury charge here would instruct the jury regarding apparent danger, appellant has still not shown that the evidence was factually insufficient to support the jury's determination on self-defense. Lawrence testified that he never saw Jones reach in his pocket, point any type of weapon, or "grab for any type of weapon." Moreover, appellant's testimony that he saw Jones with a gun conflicts with other testimony that Jones was unarmed. Thus, even assuming that Jones threatened to kill appellant and appellant saw Jones "fumbling for his waistband," the evidence was at most conflicting as to when and to the degree appellant reasonably believed the deadly force was immediately necessary to protect himself against Jones's use or attempted use of unlawful deadly force. See Tex. Pen. Code Ann. § 9.32(a)(3)(A); Kelley, 968 S.W.2d at 399. When a jury's determination depends primarily upon its evaluation of the witnesses' demeanor and credibility, it is entitled to almost total deference. Johnson v. State, 23 S.W.3d 1, 8-9 (Tex.Crim.App. 2000). After reviewing all the evidence under the appropriate standard, we conclude the evidence is factually sufficient to disprove appellant's claim of self-defense. We overrule appellant's first point of error. JURY CHARGE ERROR AT PUNISHMENT
In his second through fourth points of error, appellant asserts there are two errors in the jury charge in the punishment phase. A.
Burden of Proof on Instruction on Extraneous Offenses In his second point of error, appellant contends the trial court erred by failing to instruct the jury that, before it could consider extraneous offense evidence, it must find the State proved those acts beyond a reasonable doubt. In the punishment phase, the State introduced evidence that appellant had been "very disruptive" in jail, could not get along with other inmates, had been involved in at least one fight with another inmate, had threatened other inmates with bodily harm, and had threatened the officers and guards. When evidence of extraneous offenses is introduced during the punishment phase of a jury trial, the trial court must include a reasonable doubt instruction in the jury charge regarding punishment. Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim. App. 2000). Because the charge in this case did not include a reasonable doubt instruction, we conclude the trial court erred. See id.; Batiste v. State, 73 S.W.3d 402, 407 (Tex. App.-Dallas 2002, no pet.). Because appellant did not object to the error at trial, we review the entire record to determine whether the error was so egregious and created such harm that the defendant did not receive a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh'g); Batiste, 73 S.W.3d at 407. Egregious harm consists of those errors that affect the very basis of the case, deprive appellant of a valuable right, vitally affect a defensive theory, or make the case for punishment clearly and significantly more persuasive. Batiste, 73 S.W.3d at 407. We assess the actual degree of harm in light of the entire jury charge, the state of the evidence, including the contested issues and weight of the probative evidence, the argument of counsel, and any other relevant information in the record. Id. Egregious harm is difficult to prove and is determined on a case-by-case basis. Id. In assessing the harm, we consider the impact of the omission in the jury charge of the reasonable doubt instruction rather than the harm to appellant from admission of the extraneous offense evidence. Ellison v. State, 86 S.W.3d 226, 228 (Tex.Crim.App. 2002). Applying the appropriate standard of review, the jury charge in this case did not address the extraneous offenses, but did state the jury could "take into consideration all the facts shown by the evidence" and that the jury was the "exclusive judges of the facts proved, of the credibility of the witnesses and of the weight to be given their testimony. . . ." Thus, the charge did inform the jury that it could reject the State's evidence if it was not satisfied with the proof offered. Appellant did not deny the State's extraneous offense evidence regarding his jail conduct. There was evidence from appellant that he dealt drugs. There was also evidence that appellant was adjudged a delinquent and placed on probation. He violated probation by testing positive for drugs and was sent to a juvenile boot camp. Ultimately, appellant's probation was revoked, and he was committed to the Texas Youth Commission. In the case-in-chief, appellant admitted that he was involved in fights during the TYC commitment. Also in the case-in-chief, there was evidence that appellant had committed the offense of assault as a juvenile. The jury assessed punishments far below the maximum punishment available. See Batiste, 73 S.W.3d at 408; see also Tex. Pen. Code Ann. § 12.32 (Vernon 2003) (providing that first degree felony punishment shall be imprisonment for life or for any term of no more than ninety-nine years or less than five years and may include a fine not to exceed $10,000). From our review of the record, we cannot conclude that appellant has shown egregious harm from the omission of the reasonable doubt instruction. Therefore, we overrule his second point of error. B.
"Good Conduct Time" Instruction In his third and fourth points of error, appellant challenges the "good conduct time" instruction mandated by article 37.07, section 4(a) of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2004). In his third point of error, appellant argues the trial court erred in instructing the jury regarding the availability of good conduct time because he was not eligible for good conduct time. The Texas Court of Criminal Appeals has concluded that a trial judge does not commit statutory error when he follows legislative dictates and instructs the jury according to article 37.07, section 4(a) when the defendant is not eligible. See Luquis v. State, 72 S.W.3d 355, 363 (Tex.Crim.App. 2002). Accordingly, we overrule appellant's third point of error. In his fourth point of error, appellant complains that section 4(a) of article 37.07, which requires a good conduct time instruction, is unconstitutional as applied to him. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a). Nothing in the record suggests jurors discussed, considered, or tried to apply what they were told about good conduct time and parole, nor was the issue discussed in argument. The jury did not send out any notes indicating or expressing confusion about the possible application of good conduct in this case. Although appellant could have received a life sentence, the jury assessed forty-eight years. We conclude, as did the court in Luquis, that appellant "has failed to shoulder his burden to demonstrate that there is a reasonable likelihood that his jury unconstitutionally misapplied the concept of `good conduct time' to assess a higher sentence as a result of the instruction, thereby denying appellant due process or due course of law." Luquis, 72 S.W.3d at 368. We overrule appellant's fourth point of error. CONCLUSION
Having overruled appellant's four points of error, we affirm the trial court's judgment.