Opinion
No. 05-16-01211-CR
11-01-2017
DAVID THOMPSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1576226-R
MEMORANDUM OPINION
Before Justices Bridges, Fillmore, and Stoddart
Opinion by Justice Bridges
A jury convicted appellant David Thompson of murder and sentenced him to forty years' imprisonment. On appeal, he argues the evidence is insufficient to support the jury's rejection of his claim that he acted in self-defense or alternatively, with sudden passion. We affirm.
Background
Appellant and decedent met in April 2015 on a dating website. They immediately connected because of their shared belief in Christian living. Although appellant described decedent as slightly jealous in the beginning of their relationship, he was not concerned. However, within a few months her jealousy increased. She questioned who he talked to on the phone, and on one occasion, she questioned why he chose to talk to his young son over her.
Despite her continued jealousy, the couple married on June 15, 2015. Decedent told appellant once they were "committed," her jealousy would stop. Appellant believed her based on their "mutual spirituality."
Appellant testified decedent first physically attacked him on July 1, 2015, after she went through his cellphone. She followed him into the bathroom, pushed him, and slammed doors. After forty-five minutes, she calmed down and they left for a run. When they returned home, she again attacked him. Appellant described her punching, pushing, and "putting her hand around my neck as if she was about to choke me." When he tried to leave, she blocked the door and demanded his car keys. He refused and then he went into the bathroom. When he came out, she put a large kitchen knife against his neck and again demanded his car keys. He surrendered his keys and felt he had no choice but to stay.
The following day, decedent again went through appellant's phone and reminded him she did not want anyone calling him. She said she was "trained how to kill" based on her previous training in the European military. He described her as "very physically fit" and indicated she worked out regularly. He testified she was approximately 5'10" and weighed about two hundred pounds.
Decedent's autopsy revealed she was 5'4" and weighed 195 pounds. Appellant was 6'1" and weighed 230 pounds.
Appellant eventually had an opportunity to leave the apartment, and he walked to a nearby police station. He told an officer he was afraid of his wife and asked for an escort back to the apartment. He waited but eventually left when he needed to get to work. Decedent was angry when he returned. She refused to let him go to work alone because she thought he was having an affair. The two left together but as they were backing out, she attacked him and grabbed the steering wheel. She opened her passenger-side door and pulled them both out of the car while it continued to roll backwards. It hit the curb and stopped. He quickly jumped back in the car and drove back to the police station. The officer told him to call after his shift ended and request a "civil-service standby" and an officer would meet him at his apartment. He said he was "terrified" of her after two days of violent incidents. When officers escorted him back to the apartment later that night, decedent refused to open the door. Officers eventually left and appellant slept in his car.
Appellant returned to the apartment the next day and decedent again threatened him with a knife for trying to leave. He agreed to stay and "managed to get through the day."
Decedent's behavior calmed down until July 21 when they went to Louisiana to pick up appellant's young son. Decedent was upset that appellant's ex-wife called. Later, when the three were in the car, decedent pulled a "blade" from her cellphone case and started waving it towards appellant as he drove. Appellant claimed his son was in the backseat at the time. Appellant realized the environment was not safe for his son and when he had the chance, he left decedent and drove back to Louisiana.
Upon his return home, decedent again attacked him. He called 911 and officers responded and arrested her. In an affidavit dated July 24, 2015, in support of his application for a protective order, appellant described prior attacks by decedent and said, "[Decedent] is emotionally unstable and I fear for what she may do next. . . . I do not feel safe. I want to protect myself from further violence." On July 26, 2015, he signed an affidavit of nonprosecution because he loved her and wanted the marriage to work.
In early August, the two took another trip to Louisiana to pick up his son. She became enraged and grabbed the steering wheel causing them to almost wreck into an eighteen-wheeler. Later in the trip, she pushed appellant into a TV. On the car ride home, she again pulled a blade from her cellphone case and waved it around the car while he drove.
On August 29, 2015, appellant went to his security job at the Bank of America building around 2:30 p.m. Within hours, decedent began texting and accusing him of cheating. Appellant tried to convince her otherwise, but she came to the building around 7 p.m.
Anytime a woman approached appellant with questions or asked for an escort to her car, decedent questioned him and accused him of having affairs. He said her "anger elevated" as the night went on. He claimed she repeatedly threatened him.
Appellant called Alfred Brown, another security guard, around 10:20 p.m. to see if he could relieve appellant because he was concerned for his and others' safety based on decedent's increased anger. Appellant left a message saying it was an emergency, but did not provide specifics. At one point, appellant claimed decedent told him if he walked another woman out "that it's gonna be bloodshed."
The events leading to decedent's death were captured on surveillance video. The video showed decedent sitting on a couch with appellant standing over her having a conversation. Decedent lunged from the couch and reached towards appellant's chest. Appellant thought she was reaching for his gun. He testified he was terrified and thought he was about to die. The video captured appellant pulling his gun, a semi-automatic pistol, and shooting her as she turned away from him. He continued to shoot and "close the gap" between them as she ran away.
The video does not contain audio.
Appellant left the building and immediately called 911. He then walked to a parking garage and dropped the gun in his parking space.
Officer Phillip Wheeler responded to the 911 call. Officer Wheeler went to a Burger King and saw appellant exiting his vehicle. Appellant immediately put up his hands when he saw the police. His demeanor was "very calm" and "cooperative." Appellant told him his wife confronted him at work. She went for his gun, but he removed it so she could not get it. Appellant claimed he fired warning shots to get her away but thought he shot her. Appellant provided the location of the gun, which officers later recovered in the parking garage. Officer Wheeler transported appellant to police headquarters and he was later arrested.
Dr. Stephen Lenfest, a medical examiner, conducted the autopsy and determined the cause of death was the result of gunshot wounds and the manner was homicide. Dr. Lenfest confirmed appellant shot decedent ten times—two within close range and one within medium range. Six of the bullet wounds were in her back. Based on "stippling," described as small red marks on the skin caused by unburned gun powder, Dr. Lenfest determined appellant shot decedent in the face from a range between one to three feet. The gunshot wound to her neck had soot around it, indicating it occurred within a closer range of one to twelve inches. Dr. Lenfest classified this gunshot wound as the most significant because it transected decedent's spinal cord.
Despite the jury hearing appellant recount incidents of decedent's jealousy and rage and hearing testimony from several of appellant's friends who claimed to have heard him describe the same things, the jury found appellant guilty of murder.
Self-Defense
Appellant does not challenge the sufficiency of the evidence to support the jury's finding of the essential elements of murder beyond a reasonable doubt. Instead, he challenges the sufficiency of the evidence to support the jury's rejection of his self-defense claim. This is consistent with his requesting a self-defense instruction at trial since "a defensive instruction is only appropriate when the defendant's defensive evidence essentially admits to every element of the offense including the culpable mental state, but interposes the justification to excuse the otherwise criminal conduct." Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007).
As charged here, a person commits murder if he (1) intentionally or knowingly causes the death of an individual, or (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. TEX. PENAL CODE ANN. § 19.02(b)(1)(2) (West 2011). A person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force. Id. § 9.31(a). A person is justified in using deadly force against another (1) if he would be justified in using force against another under section 9.31 and (2) 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).
When a defendant produces some evidence raising the issue of self-defense, the State bears the burden of persuasion to show beyond a reasonable doubt that the defendant's actions were not justified. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). That is not a burden of production requiring the State to affirmatively produce evidence refuting the self-defense claim, but rather a burden requiring the State to prove its case beyond a reasonable doubt. Saxton, 804 S.W.2d at 913. If the jury finds the defendant guilty, it has made an implicit finding against any defensive theory raised by the defendant. Id . at 914; see also Zuliani, 97 S.W.3d at 594.
When a defendant challenges the legal sufficiency of the evidence to support the jury's implicit rejection of his self-defense claim, "we look not to whether the State presented evidence which refuted appellant's self-defense testimony, but 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 murder beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt." Saxton, 804 S.W.2d at 914; see also Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). In conducting a legal sufficiency review, we defer to the jury's assessment of the credibility of the witnesses and the weight to be given their testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
The evidence is undisputed appellant intentionally shot decedent, which was an act clearly dangerous to human life, and she died as a result. Accordingly, the evidence establishes every essential element of the offense of murder beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914. Thus, we must examine whether the jury "also would have found against [appellant] on the self-defense issue beyond a reasonable doubt." Id.
Here, the two most persuasive pieces of evidence supporting the jury's rejection of appellant's self-defense claim are the surveillance video and the autopsy report.
The jury viewed the surveillance video. They also heard Detective Chaney describe what he saw on the surveillance video of the incident as follows:
When it first starts, she was sitting on the couch. It looks like they were in a conversation. She did lean forward, and at that point, his hands did go down to his gun. Looks like her hands were somewhere around the chest area. As they [are] twisting, he's clearing his gun out of the holster. She finally breaks away. That's when she drops her purse, and she dropped her phone, and she's running away. And he is standing his arm in a shooting motion [referred to as a shooting stance]. As he's shooting at her, he's closing the gap to a point where if you look at it, she's running with her hands up over her face, and she's running in a circle. He continues to close the gap to at one point he shot her, I guess the fatal shot, in which she went down. He continued to close the gap while she was on the ground, looked over, and walked off.
Detective Chaney did not see decedent reach for appellant's gun, and forensic testing did not reveal any "handler DNA" from her. Based on his observations of the video, Detective Chaney did not believe appellant was in any "fear of danger or fear of his life." Rather, appellant appeared to be doing his job, and they were walking around casually and not in any apparent conflict.
Detective Chaney explained officers are taught when acting in self-defense to create distance between themselves and an attacker to provide more reaction time to keep themselves safe, rather than closing the gap like appellant did in the video.
Edward King, the individual who trained appellant, explained that security guards are trained that deadly force may be used when they see the weapon, not when they think someone has a weapon. Officer Wheeler also testified that when deciding whether to use deadly force, he considers whether the person has a weapon. The video did not show decedent with a weapon and despite appellant's claim that she always carried a "blade" in her cellphone case, no such weapon was found that night.
Dr. Lenfest confirmed appellant shot decedent ten times—two within close range and one within medium range. Six of the ten bullets entered decedent's posterior side, meaning appellant shot her as she was running away, which was clearly visible in the video. Dr. Lenfest explained that the gunshot wound to the neck, which occurred between one to twelve inches away, transected her spinal cord and would have immediately incapacitated her. Thus, the autopsy findings and the surveillance video indicate appellant shot her nine times before the deadly blow caused her to fall to the ground.
Further, appellant was trained in CPR, but failed to help decedent. Rather, he shot her and left her in the lobby. The jury was entitled to consider his actions in leaving the scene after the shooting. See Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007) (noting "factfinder may draw an inference of guilt from the circumstance of flight"); Valverde v. State, 490 S.W.3d 526, 529 (Tex. App.—San Antonio 2016, pet. ref'd); Kirk v. State, 421 S.W.3d 772, 781 (Tex. App—Fort Worth 2014, pet. ref'd) (referencing flight from scene as evidence jury could consider in rejecting self-defense claim).
Despite this evidence, appellant supported his self-defense claim by painting decedent as a violent, jealous woman. However, no one else witnessed any of these alleged outbursts. Although numerous witnesses testified to what appellant told them about the tumultuous relationship, none of these people knew decedent, witnessed any of these incidents, or even saw the couple together. Thus, the jury was free to disbelieve appellant's self-serving testimony.
The State also contradicted portions of appellant's testimony. For example, before dropping the assault charges against decedent in July 2015, appellant answered "Protective Order Drop Questions." When asked if a child witnessed any violence, he said "no" despite testifying that his son was in the car when decedent pulled a knife. He also answered that decedent did not have access to weapons, which contradicted his testimony that she often pulled knives on him and always carried a "blade" in her cellphone case.
The jury also heard evidence that appellant had a past history as an aggressor—once against an ex-wife and several past altercations with students while in school. And finally, although appellant denied it, the jury heard testimony that a man with appellant's name and birthday was hospitalized in 2014 for paranoia.
In our review, we defer to the jury's assessment of the credibility of the witnesses, and the jury in this case was free to weigh the conflicting evidence and could have disbelieved appellant's testimony. See Brooks, 323 S.W.3d at 899. Having viewed all of the evidence in the light most favorable to the prosecution, we conclude a rational jury could have rejected appellant's self-defense claim. We overrule appellant's first issue.
Sudden Passion
Once a defendant has been found guilty of murder, he may raise, at the punishment phase, the issue of whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. TEX. PENAL CODE ANN. § 19.02(d). If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is reduced to a second-degree felony. Id. A person acts with "sudden passion" if the passion is directly caused by and arose out of provocation by the individual killed. Id . § 19.02(a)(2). An "adequate cause" is one that would "commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection." Id . § 19.02(a)(1).
Although the issue of sudden passion is a punishment issue, it is analogous to an affirmative defense because the defendant has the burden of proof by a preponderance of the evidence. Gaona v. State, 498 S.W.3d 706, 710 (Tex. App.—Dallas 2016, pet. ref'd). For this reason, a finding on sudden passion may be evaluated for legal and factual sufficiency. Id. Appellant challenges the legal sufficiency of the evidence.
When reviewing a legal sufficiency challenge to a negative finding on sudden passion, the standard of review is the same as the legal sufficiency standard utilized in civil cases. Id . at 711. First, we review the record for a scintilla of evidence to support the jury's negative finding on sudden passion and disregard all evidence to the contrary unless a reasonable factfinder could not. Id. If we find no evidence that supports the finding, we determine whether the contrary proposition was established as a matter of law. Id . We defer to the factfinder's determination of the credibility of the testimony and weight to give the evidence. Id .
Examining the record under the first prong, we conclude there is some evidence that appellant was not under the immediate influence of sudden passion when he shot decedent. As discussed at length above, the surveillance video and autopsy findings indicate appellant repeatedly shot decedent as she was running away with several of the shots occurring at close range. Nothing in the surveillance video supports the existence of "adequate cause." See TEX. PENAL CODE ANN. § 19.02(a)(1). Although the video shows the two talking (but without audio it is impossible to confirm what about) and decedent lunging and grabbing appellant around the upper chest, the jury could have reasonably concluded this behavior, at most, might incite ordinary fear or anger. See Moncivais v. State, 425 S.W.3d 403, 407 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) ("Neither ordinary anger nor fear alone raises an issue on sudden passion arising from adequate cause."). The jury also heard testimony from Officer Wheeler that appellant originally "said something about firing warning shots to get her away from him." Such actions are inconsistent with sudden passion. Id . (stating anticipation of event and preparation in response indicates time to deliberate over action rather than acting under immediate influence of sudden passion). Further, appellant's detailed testimony about past violent altercations initiated by the decedent will not support the existence of sudden passion. "Sudden passion must arise at the time of the offense and cannot result solely from former provocation." Id .
Because the record satisfies the first prong of the legal sufficiency standard of review, we need not address the second prong. We conclude the evidence is legally sufficient to support the jury's negative finding on sudden passion and overrule appellant's second issue.
Conclusion
We affirm the trial court's judgment.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE Do Not Publish
TEX. R. APP. P. 47
161211F.U05
JUDGMENT
On Appeal from the 265th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1576226-R.
Opinion delivered by Justice Bridges. Justices Fillmore and Stoddart participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered November 1, 2017.