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Watson v. State

Court of Appeals of Texas, Fifth District, Dallas
Aug 19, 2004
Nos. 05-03-01574-CR, 05-03-01575-CR (Tex. App. Aug. 19, 2004)

Opinion

Nos. 05-03-01574-CR, 05-03-01575-CR

Opinion Filed August 19, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause Nos. F02-35663-J and F02-35615-PJ. Affirmed.

Before Justices MOSELEY, BRIDGES, and LANG-MIERS.


OPINION


A jury convicted appellant Jesse Lee Watson of two counts of aggravated assault with a deadly weapon. The jury found two enhancement paragraphs true and sentenced appellant to 25 years' imprisonment in each case, to run concurrently. On appeal, appellant complains that he suffered harm from charge error at both the guilt/innocence and punishment stages of the trial. We affirm the judgments of the trial court. SELF-DEFENSE INSTRUCTION In his first issue, appellant claims that the trial court erred in failing to charge the jury on self-defense. In the case before us, appellant would have been justified in using force against another in self-defense when and to the degree he reasonably believed the force was 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). However, appellant's use of force against another would not have been justified if he provoked the other's use or attempted use of unlawful force, unless (1) appellant abandoned the encounter, or clearly communicated to the other his intent to do so reasonably believing he could not safely abandon the encounter, and (2) the other nevertheless continued or attempted to use unlawful force against appellant. See Tex. Pen. Code Ann. § 9.31(a)(4) (Vernon 2003). The trial court should have instructed the jury on self-defense if it was raised by the evidence, regardless of whether that evidence was strong, weak, contradicted, unimpeached, or unbelievable. See Ferrel v. State, 55 S.W.3d 586, 591 (Tex.Crim.App. 2001). If the evidence viewed in the light most favorable to appellant does not establish self-defense, he was not entitled to an instruction on the issue. Id. Evidence On the night in question, appellant went to a bowling alley in Irving. Three persons who were at the bowling alley testified at trial. The bowling alley manager/bartender stated that when appellant was in the bar area, he seemed to be drunk or high on something. Because of appellant's offensive behavior toward other patrons of the bar, the manager escorted him out of the building. Soon after that a person ran into the bowling alley and shouted "He's got a knife, and he's trying to cut Day[thal]." When the manager went to the parking lot, he saw appellant lying on the ground. Daythal Barnes testified that he was outside the bowling center in the parking lot when appellant approached him and a group of his friends. Appellant began asking for cigarettes, for information on where to get drugs, and for a ride. Appellant continued to pester the group until one of the women "freaked out." Barnes asked appellant to leave. Appellant then walked behind Barnes, at which time Barnes felt a motion across his neck with something cold and metallic. He turned and saw appellant with a knife in his hand He and two others surrounded appellant as he swung the open knife back and forth. Appellant backed up and continued making jabbing motions with his knife. Barnes stepped in and punched appellant in the face, knocking him to the ground. Another man stepped on appellant's wrist and took the knife from him. Rudy Williams testified that he was employed at the bowling alley and saw appellant leave the building. A woman patron asked him to walk her to her car. While doing so, he saw appellant facing a group of people in the parking lot. When he yelled for appellant to leave, appellant turned around and started swinging a knife in his direction. Barnes hit appellant, knocking him to the ground. Williams then stepped on appellant's wrist. Appellant did not testify. Analysis Appellant argues that when the men surrounded and cornered him, his reaction was to back up and defend himself by making jabbing motions toward them with a knife. He states that "a logical conclusion from this set of facts is that Barnes and the others confronted appellant in the parking lot with the intent to make him leave, and when they surrounded him, he wielded his knife, his only means of protection, in self-defense." However, there is no evidence, controverted or otherwise, to support this conclusion. Two men involved in the confrontation clearly testified that appellant provoked the incident. Further, there is no evidence that the men were using deadly force against appellant, which might have justified appellant's own use of deadly force. And there is no evidence that appellant abandoned the encounter, or clearly communicated to the others his intent to do so. As a result, there is no evidence in the record to support a jury instruction on self-defense. We decide appellant's first issue against him. EXTRANEOUS OFFENSE INSTRUCTION In his second issue, appellant claims that the trial court erred in failing to charge the jury at the punishment stage that an extraneous offense had to be proven beyond a reasonable doubt. We agree that the trial court erred when it did not instruct the jury on reasonable doubt at punishment. See Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim.App. 2000); Sims v. State, 84 S.W.3d 768, 776-77 (Tex. App.-Dallas 2002, pet. ref'd). But because appellant did not object at trial, we must review the error for egregious harm. See Ellison v. State, 86 S.W.3d 226, 227 (Tex.Crim. App. 2002). In order to support a reversal, appellant must show that he suffered harm so great that he was denied a fair and impartial trial. See Skinner v. State, 956 S.W.2d 532, 544 (Tex.Crim. App. 1997). The actual degree of harm must be determined in light of the entire 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 revealed by the record. Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim. App. 1996). During punishment, appellant pleaded true to two enhancement paragraphs for each conviction. Appellant did not object when the trial court admitted into evidence stipulations to the enhancement convictions and other prior extraneous offenses, as well as four penitentiary packets and four blue backs. Nor did appellant object to a summary of appellant's convictions. On appeal, appellant concedes that [i]t would be difficult to show egregious harm in this case where appellant entered pleas of true to the enhancement paragraphs, stipulated to his extraneous offenses, and the jury sentenced appellant to the minimum 25 years from the available punishment range. Because of the overwhelming, uncontroverted evidence of extraneous offenses, as well as the jury's decision to sentence appellant to the minimum punishment, appellant has failed to show egregious harm. We resolve appellant's second issue against him. PAROLE ELIGIBILITY INSTRUCTION In his third issue, appellant complains that the trial court erred in failing to instruct the jury at the punishment stage as to appellant's eligibility for parole. Appellant contends that the trial court violated article 37.07, § 4(a) of the Texas Code of Criminal Procedure when it instructed the jury as follows: You are instructed that you are not to discuss among yourselves how long the accused will be required to serve any sentence you decide to impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and the Governor of the State of Texas and are no concern of yours. If the trial court had instructed the jury correctly, as prescribed by article 37.07, the jury would have been informed how good conduct time combines with actual time served to determine parole eligibility. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2004); Grigsby v. State, 833 S.W.2d 573, 576 (Tex. App.-Dallas 1992, pet. ref'd). We agree that the trial court submitted an erroneous jury instruction. But because appellant did not object to the charge, we must review the error for egregious harm-harm so great that appellant was denied a fair and impartial trial. See Skinner, 956 S.W.2d at 544. Appellant concedes on appeal that [t]he trial judge did not advise the jury of the specific length of any sentence or the time at which appellant would become eligible for parole. The prosecutor's argument did not refer to parole considerations. The jury here was only instructed that the length an accused would be required to serve is of no concern to them. It is thus difficult to show appellant was egregiously harmed or that he was deprived of a fair and impartial trial for this reason. Further, Texas courts agree that the State, not appellant, benefits from the parole law instruction because the instruction is designed to increase jury sentences. See Grigsby, 833 S.W.2d at 576. In the case before us, the instruction given actually discourages jurors from imposing greater sentences, and is considered a curative instruction when considering harm. See id. at 576-77. Thus appellant has failed to show that he was harmed at all, much less that he was denied a fair and impartial trial. We decide appellant's third and final issue against him. We affirm the judgments of the trial court.

"Deadly force" means force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury. Tex. Pen. Code Ann. § 9.01(3) (Vernon 2003).


Summaries of

Watson v. State

Court of Appeals of Texas, Fifth District, Dallas
Aug 19, 2004
Nos. 05-03-01574-CR, 05-03-01575-CR (Tex. App. Aug. 19, 2004)
Case details for

Watson v. State

Case Details

Full title:JESSE LEE WATSON, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Aug 19, 2004

Citations

Nos. 05-03-01574-CR, 05-03-01575-CR (Tex. App. Aug. 19, 2004)