Opinion
NO. 01-18-00543-CR
01-16-2020
BROOKE LOGAN WEEKLEY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 300th District Court Brazoria County, Texas
Trial Court Case No. 82892-CR
MEMORANDUM OPINION
A jury convicted appellant, Brooke Logan Weekley, of the first-degree felony offense of murder and assessed her punishment at fifty years' confinement and a $3,000 fine. In three issues, Weekley contends that the trial court erred in (1) denying her Sixth Amendment right to compel testimony from a witness in her defense, (2) prohibiting her counsel from cross-examining a witness about purported bias, and (3) refusing a multiple-assailants jury instruction.
See TEX. PENAL CODE ANN. § 19.02(b)-(c).
Finding no reversible error, we affirm.
Background
In the pre-dawn hours of October 17, 2017, Brooke Logan Weekley stabbed and killed her best friend and neighbor, complainant April Renee Franco.
On the evening before the incident, Weekley and Franco met up at a local bar, where they drank and danced with friends. Around midnight, they left the bar with Weekley's boyfriend, J. W. Gordin, and headed to the home of Weekley's cousin, Joshua Martin, who was described as "the kind of fellow that doesn't mind having people stop by and have a beer after midnight." Franco's boyfriend, Jonathan Breazeale, was there with Martin, and the group socialized, drank alcohol, and listened to music around a makeshift bar in Martin's carport. Another guest, Caitlin Sewell, was inside the house with Martin's wife, Lee.
At Franco's request, Martin played a Tejano song. This angered Weekley, who referred to the music with an ethnic slur and told Martin to play music they could all understand. The speaker was playing music queued up by a nearby cellphone, so Weekley took the phone and changed the music. Franco and Martin told Weekley that if she had a problem, she could leave. Weekley then left to sit in her car.
When Weekley returned to the gathering, she heard Franco speaking to Martin and Breazeale in Spanish. This too upset Weekley, who, according to Breazeale, told Franco to stop speaking in Spanish because she didn't understand "that [ethnic slur] shit." Weekley and Franco then began to argue, eventually throwing beer bottles or cans at each other. Other guests stood between them to keep them from fighting, and Martin asked Breazeale to take Franco home. Breazeale and Franco left, and Weekley and Gordin stayed behind with Martin.
Martin testified that Weekley continued "cussing and throwing a fit" and using a tablet device to text. She was "being aggressive," telling the person on the other end, "I'll kick your ass." And Sewell, who had come outside earlier, overheard Weekley tell Gordin that "she was going to kill that f-ing bitch." Weekley and Gordin then left for Weekley's house, with Weekley driving. Martin, who had pleaded with Weekley not to drive because she was "drunk and upset," drove after them because he knew "that something was going to happen." Martin had trouble keeping up with Weekley because she was driving "fast."
Weekley continued to argue with Franco over the phone and through text messages while she was driving. Breazeale overheard Franco respond to Weekley, "Oh, OK. Fine. We'll meet in front of your house then," and "I'll kick your ass."
Weekley and Gordin parked in the driveway of the house where Weekley lived with her mother, Terry McClain. When Franco saw that they had arrived, she began walking toward them, and she asked Breazeale, her 14-year-old daughter, and her daughter's teenaged friend to follow her. The three followed behind Franco. Breazeale testified that he tried to keep up, but Franco moved quickly toward McClain's home, where Weekley was standing in the driveway. When Franco neared Weekley, the two were "screaming back and forth." Weekley retrieved a knife from the driver's-side door of her car. Breazeale heard Franco say, "Are we going to do this?"
Curtis Hassell, whose house was "catty-corner" to McClain's, saw some of the encounter. Hassell testified that as Franco approached Weekley's home, Weekley told Franco "to meet her in the street." Weekley then said, "Well, I got something for your bitch ass."
Hassell stated that Weekley then walked down the driveway toward the street. She had her hand behind her back. Franco's daughter testified that Franco and Weekley then "c[a]me face-to-face," and Gordin tried to get between them. Breazeale heard Franco say, "Oh, bitch, you got a knife." And Hassell heard Franco say, "Are you really going to bring a knife out here? Are you really going to bring a knife?"
Martin then arrived at the scene. He saw Weekley "swing at" Franco and then saw Franco collapse. He heard Weekley tell Gordin to get in the car with her, and they drove away. They were later apprehended by law enforcement.
The Investigation
Deputy R. Hunt of the Brazoria County Sheriff's Office soon arrived to find Franco lying dead in the street, and her daughter, Martin, Breazeale, and her daughter's teenaged friend close by. Deputy Hunt's vehicle had an audio- and video-recorder, which recorded someone saying, "Brooke apparently texted her saying, 'you'd better be outside,' or something along those lines, 'whenever I get there.'"
E. Barnhart, Chief Medical Examiner for the Galveston County Medical Examiner's Office, determined that the stab wound to Franco's chest punctured her aorta and caused her to bleed out internally, resulting in her death.
The Trial: Specific Testimony
In addition to the testimony and evidence described above, Weekley testified on her own behalf, Gordin invoked his Fifth Amendment right not to testify, and Weekley's counsel made three offers of proof after the trial court sustained the State's objection to counsel's questions to Hassell exploring Hassell's potential bias against Weekley.
Gordin's Refusal to Testify
The defense called Weekley's boyfriend, Gordin, to testify at trial. Before he testified, the trial court advised him about his Fifth Amendment right not to testify and that "the potential exist[ed] that charges could be filed against" him based on his testimony. The court appointed an attorney for him and asked the two to confer outside. The court later called Gordin back to confirm that he would assert his Fifth Amendment rights. After three introductory questions from Weekley's counsel, Gordin said that he refused to testify and was asserting his Fifth Amendment rights. Defense counsel did not object, but, instead, informed the court that Weekley would testify next and asked for a brief recess.
Weekley's Testimony
Weekley testified on her own behalf. She testified that, during the argument over the Tejano songs at Martin's home, she took the cellphone to change songs. When Franco tried to grab the phone from her, the attempt bloodied Weekley's nose. Weekley also testified that, during the argument over the Spanish-speaking, Breazeale had to restrain Franco from screaming at and moving toward her.
According to Weekley, after Franco and Breazeale left Martin's house, Franco texted her, stating, "I'm in your driveway" and "Bring it," and Franco called her the "B word." Weekley stated that she did not reply to the texts.
Weekley testified that she left Martin's house and drove home, where she parked in the driveway. When she opened her car door, she heard Franco "screaming and hollering and people coming [her] way." Only Franco was yelling. Weekley stood in her driveway and she and Franco yelled back and forth at each other.
Weekley then went back to her car and retrieved a knife "[b]ecause I had more than one person coming at me. I couldn't see who all was behind [Franco], and I was in fear." She "didn't go in [her] house" because she would have had to turn her back to Franco and the others.
Weekley testified, in response to her attorney's questions, that she feared for her life because of Franco's size, words, and actions and because Franco was not alone:
Q. OK. So did y'all have a confrontation there right at the end of the driveway in the street?
A. Yes.
Q. Was [Franco] saying anything?
A. She was going to beat my ass.
Q. Were you saying anything?
A. I told her to shut up and go back home. Leave me alone. And she just kept on.
Q. Is [Franco] taller than you?
A. Yes.
Q. Is she bigger than you?
A. Most definitely.
Q. Is she in any way disabled or frail?
A. No, sir.
Q. I mean, would you describe her as a—a small person, an invalid in any way?
A. Small, no.
Q. OK. So is it—would she have at least been a match for you in a fight?
A. Yes, she would have.
Q. Do you think she could have overmatched?
A. Definitely.
Q. Were there other people there with her?
A. Yes.
Q. Did you see what they were doing?
A. They were coming behind her. I mean, they were walking up pretty fast too.
Q. Were they right in your face as well or just [Franco]?
A. No, just [Franco].
. . . .
Q. Was [Breazeale] there trying to help you?
A. No.
Q. Did you feel like you were alone in the street at that time?
A. Yes, I did.
Q. Did you fear for your life?
A. Yes, I did.
Q. Can you tell me why?
A. Because she's bigger. I mean, she was coming at me fast. I'm at my home where I should feel safe. Other people were behind her. I didn't know who they were. I didn't know what they were [capable] of doing.
Weekley testified that once she and Franco came together near the driveway, Franco pushed her. In response, Weekley stabbed Franco. Weekley testified that she was "[t]rying to hit [Franco], but . . . wasn't trying to stab her." She stated that she "was just trying to get [Franco] to stop," and she did not mean to kill Franco.
Offers of Proof Regarding Hassell's Alleged Bias
At trial, Hassell, Weekley's and McClain's neighbor, who saw part of the encounter, testified in response to Weekley's counsel's questioning that he had "never had a problem out of either" Weekley or Franco. Defense counsel then asked Hassell about McClain:
Q. Okay. And, of course, you know Ms. McClain has called the police on you before, right?
A. No, I haven't.
Q. Didn't know she called on [you] about animal cruelty?
A. Huh-uh.
The State objected to the questioning. Defense counsel explained that he was not offering the testimony as character evidence or evidence of prior bad acts, but as evidence of bias or motive. The trial court sustained the objection, explaining that Hassell had already testified that he has never had any trouble with Weekley and that the cross-examination about McClain's reports to animal control would not "impeach [Hassell] at all." Defense counsel then made an offer of proof of the proposed cross-examination:
Q. Mr. Hassell, have you ever had animal control or a deputy come out to your house about either chickens or the dogs or for any matter about how you keep animals out there?
A. Not that I recall. . . .
Q. You never had an animal control officer come out about cockfighting or dog-fighting or how you keep animals about there?
A. No, sir.
Q. Never were talking to—
A. Not on my animals.
Q. All right. Well, anybody's animals? Someone else is out there cockfighting or dog-fighting at your house?
A. I don't know about the cockfighting. I ain't got no chickens.
Q. So you never—and so no deputy has ever made contact with you about any of that sort of behavior out there?
A. Not that I recall.
Defense counsel also made offers of proof from the animal-control officer and McClain. The officer testified that McClain had made several complaints about dogs in the neighborhood. The officer was once called out to McClain's house because two boxers had killed her cat. McClain thought the dogs belonged to Franco's house. The officer remembered speaking with several neighbors including Hassell. On another occasion, the officer was "dispatched out or w[as] notified of a complaint made of cockfighting or dog-fighting" at Hassell's address due to a complaint made by McClain. The officer did not remember talking to McClain, and she stated that she did not discover any animal cruelty.
McClain testified that she had called animal control on Hassell for dog-fighting or cockfighting, and she had asked Hassell directly about dog-fighting or cockfighting. And although she told him that she would call a report in, she also said that it was "fair" to say that "Hassell ha[d] no reason to know that [she] called the police on him."
The Jury Charge and Verdict
At the close of evidence, defense counsel requested that the trial court include the following multiple-assailants instruction in its charge to the jury:
Where there is more than one assailant, the defendant has the right to act upon the hostile demonstration of either one or all of them and to assault either one of them if it reasonably appears to him/her that they are present for the purpose and acting together to take his/her life or to do him/her serious bodily injury.
The trial court rejected the requested instruction, instructing the jury only regarding self-defense based on Franco's conduct. The court submitted questions regarding murder and the lesser-included offense of manslaughter.
The jury found Weekley guilty of murder and assessed her punishment at fifty years' confinement and a $3,000 fine.
Refusal to Compel Witness to Testify
In her first issue, Weekley argues that the trial court erred in admonishing Gordin of his Fifth Amendment right not to testify and in accepting his assertion of that right, and she asserts that such error resulted in a violation of her Sixth Amendment right to compel Gordin to testify as part of her defense. Specifically, she asserts that the Fifth Amendment bars a court from compelling an individual to testify only in a criminal proceeding against that individual or where the individual has a reasonable fear that his testimony will be incriminating. She argues that the trial court thwarted her right to compulsory process under the Sixth Amendment by "fail[ing] to fully inquire as to what bases [Gordin] ha[d] for invoking his Fifth Amendment right." And she argues that compelling Gordin to testify would not offend his Fifth Amendment rights because this was a "non-testimonial compulsion[]" and any testimony he would have been compelled to give would be inadmissible against him in a later prosecution.
Under Texas Rule of Appellate Procedure 33.1, to preserve a complaint for appellate review, a party must make a timely and specific request, objection, or motion to the trial court that states the grounds for the ruling sought, and the trial court must rule on the request, objection, or motion. See TEX. R. APP. P. 33.1(a); Fields v. State, 507 S.W.3d 333, 336 n.2 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (holding that defendant forfeited Sixth Amendment complaint by failing to comply with Rule 33.1(a)).
Weekley contends that Rule 33.1(a) does not apply to her compulsory-process issue because it "is one of a systemic or absolute requirement and/or a waivable right." While it is true that "systemic" errors "can neither be forfeited nor even validly waived by the parties for appellate-review purposes," see Proenza v. State, 541 S.W.3d 786, 792 (Tex. Crim. App. 2017), the Court of Criminal Appeals has instructed that the compulsory-process right is forfeitable, see Grado v. State, 445 S.W.3d 736, 741 & n.29 (Tex. Crim. App. 2014) (naming "confrontation and compulsory process" as forfeitable rights). And we have previously applied Rule 33.1(a) to a compulsory-process appellate issue. See Trenor v. State, 333 S.W.3d 799, 804-05 (Tex. App.—Houston [1st Dist.] 2010, no pet.). Rule 33.1(a) therefore applies to Weekley's compulsory-process issue.
In this case, the trial court advised Gordin of his Fifth Amendment right and Gordin conferred with his appointed attorney. Soon after defense counsel began questioning Gordin, he pleaded the Fifth Amendment. Defense counsel passed the witness and did not object. Therefore, we conclude that Weekley failed to preserve her compulsory-process issue for appellate review. See TEX. R. APP. P. 33.1(a); Grado, 445 S.W.3d at 741 & n.29; Trenor, 333 S.W.3d at 804-05.
We overrule Weekley's first issue.
Refusal to Permit Cross-Examination About Alleged Bias
In her second issue, Weekley contends that the trial court abused its discretion when it prohibited cross-examination of Hassell regarding his alleged bias against her because her mother, McClain, had called animal control to investigate Hassell for animal cruelty. Weekley relies on Rule of Evidence 613(b), which permits the impeachment of a witness by proof of circumstances or statements showing the witness's bias or interest.
To the extent Weekley also asserts a violation of the Sixth Amendment's Confrontation Clause by stating that the trial court "denied [her] constitutional right to confront the witness," she failed to preserve this complaint for appellate review. "The proponent [of evidence], if he is the losing party on appeal, must have told the judge why the evidence was admissible." Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005) (emphasis added); accord Reynolds v. State, 371 S.W.3d 511, 519 n.2 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd). When the State objected to the questioning of Hassell as improper character evidence, defense counsel responded that he was not eliciting character evidence but instead "evidence of bias or motive to testify against" Weekley because McClain purportedly "ha[d] called animal control on Mr. Hassell." Defense counsel did not, however, argue that the questioning was necessary to satisfy the Confrontation Clause. See Reyna, 168 S.W.3d at 179 ("When a defendant's objection encompasses complaints under both the Texas Rules of Evidence and the Confrontation Clause, the objection is not sufficiently specific to preserve error.") (citing Cantu v. State, 939 S.W.2d 627, 634 (Tex. Crim. App. 1997)); Reynolds, 371 S.W.3d at 519 n.2.
I. Standard of Review and Applicable Law
We review a trial court's decision to exclude evidence for an abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Reynolds v. State, 371 S.W.3d 511, 519 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd). A trial court abuses its discretion only if its decision is "so clearly wrong as to lie outside the zone within which reasonable people might disagree." Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008); Reynolds, 371 S.W.3d at 519. A trial court does not abuse its discretion if any evidence supports its decision. Reynolds, 371 S.W.3d at 519. We will uphold the evidentiary ruling if it was correct on any theory of law applicable to the case. Id. at 519-20.
Generally, the Rules of Evidence permit a defendant to "cross-examine a witness for his purported bias, interest, and motive without undue limitation or arbitrary prohibition." Hammer v. State, 296 S.W.3d 555, 563 (Tex. Crim. App. 2009); Reynolds, 371 S.W.3d at 520; see also TEX. R. EVID. 613(b) (permitting impeachment of witness by proof of circumstances or statements showing witness's bias or interest). The scope of cross-examination is "necessarily broad." Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996); Reynolds, 371 S.W.3d at 520. "A defendant is entitled to pursue all avenues of cross-examination reasonably calculated to expose a motive, bias or interest for the witness to testify." Carroll, 916 S.W.2d at 497; Reynolds, 371 S.W.3d at 520.
The broad scope of cross-examination does not mean "that a defendant can explore every possible line of inquiry." Reynolds, 371 S.W.3d at 520 (quoting Smith v. State, 352 S.W.3d 55, 64 (Tex. App.—Fort Worth 2011, no pet.)). "[T]rial judges retain wide latitude . . . to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Id. (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)); see also Hammer, 296 S.W.3d at 561. Thus, the proponent of evidence that allegedly establishes bias must show that the evidence is relevant by demonstrating that a nexus, or logical connection, exists between the witness's testimony and the witness's potential motive to testify in favor of the other party. Reynolds, 371 S.W.3d at 520 (citing Woods v. State, 152 S.W.3d 105, 111 (Tex. Crim. App. 2004)). The trial court does not abuse its discretion in excluding evidence of the alleged bias if the proponent of the evidence does not establish the required nexus. Id. (citing Smith, 352 S.W.3d at 64).
II. Analysis
Weekley contends that the trial court abused its discretion when it prohibited cross examination of Hassell regarding his alleged bias against her because her mother, Terry McClain, had called animal control to investigate Hassell for animal cruelty. After the trial court sustained the objection and prohibited further cross-examination on the subject, defense counsel made offers of proof, questioning Hassell, McClain, and the animal-control officer who investigated McClain's complaints.
Hassel denied knowing that McClain had called the police or animal control about him. And, notably, just before his testimony in the offer of proof, Hassell had testified in the presence of the jury that he had "never had a problem" with Weekley.
McClain testified that she had called animal control about Hassell for dog-fighting or cockfighting, but she admitted that it was "fair" to say that he "has no reason to know that [she] called the police on him." And, contrary to Hassell's testimony, McClain stated that she had asked Hassell about his purported dog-fighting or cockfighting. But she also stated that she had never "let him know [that she was] going to call or did call police on him"
The animal-control officer testified that she was once called out to McClain's house because two boxers had killed McClain's cat. But McClain told the officer that she thought the dogs belonged to Franco's house, not Hassell's. And in a separate incident, although the officer's records suggested that she had been dispatched to Hassell's address or had at least been notified of McClain's complaint of cockfighting or dog-fighting there, she did not remember talking to McClain about Hassell's dogs and did not discover any animal cruelty at his house.
On appeal, Weekley's argument remains, essentially, that Hassell had a motive to give testimony that is damaging to her because he does not like her mother. We confronted a similar argument in Reynolds, in which we held, "It does not logically follow from [the witness]'s dislike of [the defendant]'s mother that [the witness] necessarily dislikes, or has some animus against, [the defendant] as well and wants to see" the defendant found guilty "and, therefore, had a motive to lie under oath about the facts of the incident." See 371 S.W.3d at 521. Here, this argument that Hassell is biased against Weekley because he allegedly dislikes McClain due to her calls to animal control is no more of an indication that the trial court abused its discretion and improperly excluded evidence of alleged bias than it was in Reynolds.
As the proponent of the evidence allegedly demonstrating bias or motive, Weekley bore the burden to establish a nexus or logical connection between Hassell's testimony and his potential motive to testify against her. See id. at 520 (citing Woods, 152 S.W.3d at 111, and Smith, 352 S.W.3d at 67). The trial court found that no such logical connection existed. See id. (citing Smith, 352 S.W.3d at 68). Some evidence supported the trial court's finding: Hassell testified that he did not know of any reports by McClain, and the animal-control officer did not find any animal cruelty at his home. See id. at 519 (stating that trial court does not abuse its discretion if any evidence supports its decision). With some evidence in support of its ruling, we defer to the trial court's discretion to determine that Weekley failed to establish the logical nexus required to show bias. See id. at 519-21. We hold that the trial court did not abuse its discretion in refusing to permit defense counsel to pursue this line of cross-examination with Hassell, McClain, and the animal-control officer.
We overrule Weekley's second issue.
Refusal to Include Multiple-Assailants Jury Instruction
In her third issue, Weekley contends that the trial court erred by refusing to include a multiple-assailants instruction as part of its self-defense instruction in the jury charge.
I. Standard of Review and Applicable Law
We use a two-step process to review alleged jury-charge error. Id. (citing Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005)). First, we determine whether error exists in the charge. Id. (citing Ngo, 175 S.W.3d at 743). If it does, we review the record to determine whether the error caused sufficient harm to require reversal of the conviction. Id. (citing Ngo, 175 S.W.3d at 743). When, as here, the defendant has properly objected to the error in the charge, reversal is required unless the error was harmless. Id.; see Ngo, 175 S.W.3d at 743) ("[J]ury charge error requires reversal when the defendant has properly objected to the charge and we find 'some harm' to his rights.").
When a defensive theory is raised by the evidence, the theory must be submitted to the jury. Reynolds, 371 S.W.3d at 521 (citing Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997)). A defense is supported (or raised) by the evidence if there is some evidence, from any source, on each element of the defense that, if believed by the jury, would support a rational inference that each element is true. See Shaw v. State, 243 S.W.3d 647, 657-58 (Tex. Crim. App. 2007); see also TEX. PENAL CODE ANN. § 2.03(c) ("The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense."). If the defense is supported by the evidence, the defendant is entitled to an instruction on that defense, regardless of whether the supporting evidence is strong, feeble, unimpeached, or contradicted, and even when the trial court is of the opinion that the testimony is not credible. Reynolds, 371 S.W.3d at 521-22 (citing Shaw, 243 S.W.3d at 658, and Walters v. State, 247 S.W.3d 204, 209 (Tex. Crim. App. 2007)).
We review a trial court's decision not to include an instruction on a defensive issue in the charge for an abuse of discretion, and we view the evidence in the light most favorable to the defendant's requested submission. Id. at 522 (citing Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006), and Love v. State, 199 S.W.3d 447, 455 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd)).
Under the second step for reviewing jury-charge error, "[t]o determine if there is any harm, the degree of harm must be weighed in light of the entire jury charge, state of the evidence, counsels' arguments, and any other relevant information revealed by the trial record as a whole." Id. (quoting Starks v. State, 127 S.W.3d 127, 133 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd, untimely filed). Even when an appellate court assumes that the refusal to give a jury instruction was erroneous, it may affirm the conviction if the error was not harmful. See, e.g., Brown v. State, 580 S.W.3d 755, 761 (Tex. App.—Houston [14th Dist.] 2019, pet. ref'd) ("Here, we need not decide whether the trial court erred in including the challenged instruction in the jury charge because, even assuming there was error, we conclude the error would be harmless.").
II. Analysis
Weekley contends that the trial court erred in refusing to instruct the jury on multiple-assailants self-defense. Weekley was entitled to the instruction if the evidence raised an issue about whether she reasonably believed that she was under attack or imminent attack from multiple assailants. See Frank v. State, 688 S.W.2d 863, 868 (Tex. Crim. App. 1985) ("[A] defendant is entitled to a charge on the right of self-defense against multiple assailants if 'there is evidence, viewed from the accused's standpoint, that he was in danger of an unlawful attack or a threatened attack at the hands of more than one assailant.'") (quoting Wilson v. State, 145 S.W.2d 890, 893 (Tex. Crim. App. 1940)).
Weekley relies on her own testimony to show that she was entitled to the instruction: she testified that she did not intend to kill Franco; she only retrieved the knife because she "had more than one person coming at [her];" she did not know what the others were capable of doing; and she was afraid that turning away from the group and heading into her house would put her in "greater danger."
Assuming without deciding that the trial court's refusal to give the requested multiple-assailants jury instruction constituted error, we hold that the error was harmless.
This case is analogous to Dickey v. State, in which the Court of Criminal Appeals reviewed the defendant's testimony that he retrieved a weapon because he feared an attack on himself from multiple assailants. See 22 S.W.3d 490, 492-93 (Tex. Crim. App. 1999). In Dickey, the defendant and the alleged assailant, Brown, went to the apartment of complainant, Marvis, where the three men argued over a debt Marvis claimed Brown owed him. Id. at 491. The defendant heard Marvis cock his gun and saw Marvis and Brown look at each other. Id. He then saw Brown start to reach for the gun in his front waist band. Id. The defendant testified that these actions—Marvis cocking his gun, Marvis and Brown looking at each other and not at him, and Brown reaching for his gun—made him afraid that "they were going to team up on" him, so he pulled out his gun and shot Brown. Id. Marvis then started shooting at Brown, and the defendant stated, "I was surprised because I expected [Marvis] to shoot at me." Id. at 492. The jury charge included an instruction on self-defense, but the trial court refused to give a multiple-assailants instruction. Id.
In conducting its harm analysis, the Dickey court noted that because there were no witnesses "to confirm [the defendant]'s fear," there was no evidence in the record to explain "why [the defendant] would think the other two were teaming up on him." Id. The Court of Criminal Appeals found that "there [was] absolutely nothing in the actions of" Marvis or Brown to indicate that they were colluding and going to attack the defendant. Id. at 492. The court concluded that the defendant was not harmed by the trial court's failure to instruct the jury on multiple-assailant self-defense, explaining that "[t]his is not a case in which the evidence was clear that there were multiple assailants and the jury was unable to give effect to that evidence." Id. at 492-93.
The same can be said of the record in this case, which, as discussed above, contains no evidence to support Weekley's belief that the three individuals standing behind Franco—none of whom had done or said anything threatening—would join together to attack her. In other words, nothing in the record suggests that the jury would have delivered a different verdict had the trial court instructed it regarding multiple-assailant self-defense based on the fear that the persons who accompanied Franco were going to attack Weekley with deadly force. Given the jury's implicit rejection of Weekley's self-defense theory against Franco—i.e., that Weekley reasonably believed Franco was about to use unlawful deadly force against her—it would make no sense to conclude that the jury could have found that the three others were, as Weekley's requested instruction stated, "present for the purpose and acting together to take [Weekley's] life or to do [her] serious bodily injury." See id. at 493 (Keller, J., concurring) ("[U]nder this record, for the jury to have believed that Brown and Marvis were about to conduct a group assault against [the defendant], the jury must also have believed that Brown was preparing personally to assault [the defendant]. The latter theory was contained in the jury charge, and the jury's rejection of that theory necessarily shows that the jury would also have rejected a multiple assailants theory.").
Rather, the evidence showed that it was Weekley, not Franco, who retrieved a knife from her car when she saw Franco approaching, told Franco to "meet her in the street," told her, "Well, I got something for your bitch ass," and swung at and stabbed Franco as soon as she got close enough. This cannot reasonably be construed as the conduct of someone who retrieved her knife from her car because she feared an attack on her own life by multiple assailants. See Echavarria v. State, 362 S.W.3d 148, 153 (Tex. App.—San Antonio 2011, pet. ref'd) (stating that "[i]t is illogical to conclude [the defendant] was harmed by the court's failure to properly instruct the jury" regarding multiple assailants because "[t]here was more evidence to support a belief that [the complainant] was reaching for a weapon than there was to support a belief that [another man present and the alleged second assailant] was going for a weapon").
For the foregoing reasons, we hold that Weekley was not harmed by the court's refusal to give the jury a multiple-assailants instruction.
We overrule Weekley's third issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice Panel consists of Chief Justice Radack and Justices Keyes and Landau. Do not publish. TEX. R. APP. P. 47.2(b).