Ceasar v. State

939 S.W.2d 778, 1997 Tex. App. LEXIS 626, 1997 WL 59317
CourtCourt of Appeals of Texas
DecidedFebruary 13, 1997
DocketNos. 14-94-01246-CR, 14-94-01247-CR
StatusPublished
Cited by3 cases

This text of 939 S.W.2d 778 (Ceasar v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ceasar v. State, 939 S.W.2d 778, 1997 Tex. App. LEXIS 626, 1997 WL 59317 (Tex. Ct. App. 1997).

Opinion

AMIDEI, Justice.

OPINION

This is a consolidated appeal by Terry Lee Ceasar of two convictions by a jury for (1) the murder of Derrick Wilson (Wilson) and, (2) the aggravated assault with a deadly weapon of Michael Watts (Watts). The trial court assessed appellant’s punishment at life imprisonment for the murder of Wilson and twenty-five years imprisonment for the aggravated assault of Watts, both convictions enhanced by one prior felony conviction. In three points of error, appellant contends the trial court erred (1) in excluding evidence showing the victim’s character for violence, (2) in denying a jury instruction on self-defense and, (3) in overruling his Batson objection to the strike of one juror. We affirm.

On November 27,1993, appellant went to a party at an apartment clubhouse in Houston. Wilson and Watts were providing recorded musical entertainment for the group. Someone painted graffiti on the walls and equipment in the laundry room and Casey Spence, the bouncer for the occasion, told the group to go home and the party was over. Watts and Wilson stopped the music and appellant asked Watts to start the music again. Watts turned the music on again and Wilson came over and stopped the record player. Wilson and appellant yelled at each other and Wilson pulled a small, “silver” gun out from under his shirt and pointed it at appellant. Appellant left the clubhouse and then obtained a “black” gun. Some people tried to take the gun away from appellant and appellant fired a shot in the air and scared the people away. Appellant then fired shots through a clubhouse window and a bullet grazed Watts on his neck. Appellant then re-entered the clubhouse yelling for Wilson. Appellant found Wilson behind the record machine booth and the men started fighting. During the fight, appellant dropped his “black” gun but managed to get Wilson’s small “silver” gun and shoot him twice with it. One bullet went through Wilson’s wrist and another went into his chest. Wilson died at the scene from a bullet wound to his heart and liver.

In point of error one, appellant claims the trial court erred in excluding evidence showing Wilson’s character for violence. Appellant offered a certified copy of a probation order and deferment of adjudication of guilt showing Wilson was placed on six years probation for aggravated sexual assault of a child. The trial court excluded the deferred adjudication finding the “prejudicial effect substantially outweighs the probative value” of the judgment under rule 403, Texas Rules of Criminal Evidence.

The state argues the evidence of Wilson’s conduct was properly excluded because the issue of Wilson being the first aggressor in the initial confrontation between appellant and Wilson was not disputed by the state. The state expressly conceded that Wilson was the first aggressor.

Since there was no contested issue as to who was the aggressor, the trial court properly excluded the evidence of Wilson’s deferred adjudication since it had no probative value. In Limon v. State, 632 S.W.2d 812, 815 (Tex.App.-Houston [14th Dist.] 1982, pet. refd), this court set out the criterion when the evidence is offered for the purpose of showing the deceased was the aggressor:

Before any evidence of the deceased’s character for violence becomes admissible, however, there must be evidence of some [780]*780act of aggression by the deceased which the character [evidence] tends to explain (such as drawing a gun or reaching for a pocket where one is usually carried).

Id, at 815.

We conclude that with the facts before us there is no evidence of an act which needs to be explained by reputation. Id. The evidence is clear that Wilson drew his gun first and pointed it at appellant; thereafter, appellant went outside, armed himself with a gun, and came back in looking for Wilson. The trial court correctly excluded the evidence offered to show that the deceased was the first aggressor because it was not probative of “who was in fact the aggressor” in the fray. In Thompson v. State, 659 S.W.2d 649, 653-54 (Tex.Crim.App.1983), the court of criminal appeals held, in pertinent part:

Thus, it is the rule that reputation evidence concerning the deceased’s violent character or prior specific acts of violence committed by him are admissible in so far as they tend to explain the deceased’s conduct; because this evidence is probative of “who was in fact the aggressor” in the fray (as opposed to “what the defendant thought”), the defendant need not show his own awareness of it at the time of the offense, but like all evidence, it must be established by admissible evidence at trial.

Id. at 654. See also Diaz v. State, 722 S.W.2d 482, 486 (Tex.App.-San Antonio 1986), vacated and remanded on other grounds, 761 S.W.2d 1 (Tex.Crim.App.1988), on remand, 769 S.W.2d 307 (Tex.App.-San Antonio 1989, pet. ref'd). We overrule appellant’s point of error one.

In point of error two, appellant complains the trial court erred in not granting his requested jury instruction on self-defense. He argues that the evidence raised an issue of self-defense and the trial court had a duty to submit the issue of self-defense to the jury. We disagree.

Appellant correctly states the general proposition that a defendant is entitled to an instruction on every defensive issue raised by the evidence. Hayes v. State, 728 S.W.2d 804, 807 (Tex.Crim.App.1987). This is true regardless of whether such evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of this evidence. Id.; Mullins v. State, 767 S.W.2d 166, 168 (Tex.App.-Houston [1st Dist.] 1988, no pet.). A defendant’s testimony alone may be sufficient to raise a defensive theory requiring an instruction in the jury charge. Dyson v. State, 672 S.W.2d 460, 463 (Tex.Crim.App.1984); Pierini v. State, 804 S.W.2d 258, 260 (Tex.App.-Houston [1st Dist.] 1991, pet. ref'd).

Section 9.32, Texas Penal Code, provides, in pertinent part:

A person is justified in using deadly force against another:
(1) if he would be justified in using force against the other in Section 9.31 of this code;
(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:
(A) to protect himself against the other’s use or attempted use of unlawful deadly force ...

In Martinez v. State, 775 S.W.2d 645

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939 S.W.2d 778, 1997 Tex. App. LEXIS 626, 1997 WL 59317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ceasar-v-state-texapp-1997.