Ferrel v. State

16 S.W.3d 861, 2000 Tex. App. LEXIS 2422, 2000 WL 378019

• Court: Court of Appeals of Texas
• Decided: April 13, 2000
• Docket: 14-97-00936-CR
• Status: Published

Opinions

MAJORITY OPINION

DON WITTIG, Justice.

This was a short-lived bar room fight. After the trial judge refused appellant Anthony Randolph Ferrel’s requested instructions on self defense, apparent danger and misdemeanor assault, a jury convicted appellant of aggravated assault. Appellant was sentenced by the jury to six years confinement and a $2,500 fine. We reverse and remand for a new trial.

Background

Appellant was involved in an altercation in which he struck the complainant in the mouth with a beer bottle. The complainant fell to the ground, hit his head on the floor, and died. Viewing the evidence in the light most favorable to the appellant, testimony by defense witnesses, appellant, or both, established the following preceded the blow by the bottle:

— complainant was “highly intoxicated” and drank about ten (10) Jack Daniels and water;

— complainant was characterized that evening as being “obnoxious, demeaning and loud,” and “arrogant, cocky, demanding, rude;”

— during the confrontation, appellant and complainant exchanged heated profanities and insults; the complainant hurled the gravest insult in reference to appellant’s mother.

— appellant stated that the complainant was “coming at” him, with his back against the bar and because of various obstacles, he was unable to retreat;

— complainant was pushing into appellant;

— complainant weighed a bulky 218 pounds outweighing appellant by nearly fifty pounds;

— complainant told appellant, “why don’t we just take this outside;”

— appellant stated that complainant was “really angry” and that he saw in complainant’s eyes that he was going to attack him;

— as complainant’s companion approached them, appellant feared both men were going to jump him;

— complainant’s comrade weighed about 240 pounds, seventy pounds more than appellant.

The Government Argues Against Self-Defense

The government argues to further restrict the right of self-defense. We are confronted with the when and how of every person’s most basic right of self-defense. The issue is not simple. Because of the legislature’s adoption of Tex. Pen. Code Ann. § 9.82 limiting the amount of force that can be used to defend oneself, the interplay of the lesser assault issue now plays a critical role in determining whether or not every Texan still maintains the right to defend themselves. Stated otherwise, by engineering the charge to exclude misdemeanor assault, the government can completely deprive Texans of their right to self-defense. This is so because under Tex. Pen.Code Ann. § 9.32, one does not have a legal right to use deadly force except to protect oneself from deadly force. Therefore, by eliminating simple assault from the court’s charge, self-defense is also scuttled. We therefore first address appellant’s second issue that the trial court erred in refusing to submit a jury instruction on the lesser-included offense of misdemeanor assault.

Lesser-included Misdemeanor Assault

A defendant is entitled to a charge on a lesser-included offense where the proof of the charged offense includes the proof required to establish the lesser-included offense and there is some evidence permitting a jury to rationally find that if the defendant is guilty, he is guilty only of the lesser-included offense. See Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim.App.1999). Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Id. Essentially, the evidence should establish the lesser-included offense as a “rational alternative” to the charged offense. See id. This is accomplished if the evidence “casts doubt” on an element of the greater offense, providing the jury with a rational alternative by voting for the lesser-included offense. See id.

A person commits the offense of misdemeanor assault if he intentionally, knowingly, or recklessly causes bodily injury to another. See Tex. Pen.Code Ann § 22.01(a)(1) (Vernon 1994). A person commits the offense of aggravated assault if he commits misdemeanor assault and either: (1) causes serious bodily injury to another, or (2) uses or exhibits a deadly weapon during commission of the assault. See Tex. Pen.Code Ann. § 22.02(a) (Vernon 1994). “Serious bodily injury” is defined as any injury that “creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Tex. Pen.Code Ann. § 1.07(a)(46).

To be entitled to an instruction on the lesser-included offense of misdemeanor assault, there must have been some evidence permitting a jury to find appellant did not cause serious bodily injury and that appellant did not use or exhibit a deadly weapon.

The record shows appellant’s expert testified the complainant did not in fact suffer a serious bodily injury by the blow from the bottle. The expert opined complainant died as a result of hitting his head on the floor, his heavy alcohol consumption, and other factors. To the inquiry whether the bottle, in the manner of its use, was capable of causing serious bodily injury, the expert opined, “you cannot get enough force, and it’s in the wrong place to generate a significant head injury or lethal head injury.” Appellant too testified he did not intend to kill complainant or cause him serious injury and that he only hit complainant with the bottle to “get him away from me.”¹

Thus the lesser assault issue is raised. Appellant provided sufficient evidence for a jury to reasonably find complainant did not suffer a serious bodily injury from the blow by the bottle alone and that appellant did not use or exhibit a deadly weapon.² Therefore, the trial court erred by not including the lesser-included offense in the charge. Appellant’s issue number two is sustained.

Self-Defense and Apparent Danger

Appellant’s first and third issues contend that the trial court erred in refusing his request for a jury instruction on self-defense and apparent danger. We will not address apparent danger because it is not necessary to the disposition of this appeal.

Though the State may have provided more than ample proof appellant could have used deadly force, the issue was not conclusively proven to the exclusion of simple assault and the issue of self-defense.³ By the expert’s testimony that the complainant did not in fact suffer a serious bodily injury by the blow from the bottle, that the bottle, in the manner of its use, was incapable of causing serious bodily injury, and appellant’s testimony he did not intend to kill complainant or cause him serious injury and that he only hit complainant with the bottle to “get him away from me,” the defense controverted the State’s deadly force evidence, thereby raising the factual dispute. As such, the jury was entitled to disregard the State’s evidence on use of deadly force and believe the defense’s version.

Because the determination of deadly force was not properly and orderly made⁴, the defendant was denied the opportunity to have a legitimate self-defense issue presented. Not surprisingly, during deliberations, the jury asked on their own whether they could consider self-defense and they, like appellant, were denied the opportunity. The right of self-defense⁵ is at least as fundamental to freedom and liberty as free speech, the right to vote, and trial by jury.

Harm Analysis

We must first determine whether the court’s failure to charge the jury on a lesser included offense or self defense in this case requires us to conduct a harm analysis under the “Constitutional Error” standard of Tex.R.App. P. 44.2(a) or the “Other Errors” standard of Tex.R.App. P. 44.2(b). It is well-established that due process requires that a lesser included offense instruction be given in a capital case when the evidence warrants such an instruction. Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). However, we are aware of no clear authority holding this to be a federal or state constitutional requirement in a non-capital case. But because, as discussed below, we find these errors violated a substantial right of appellant, we need not decide here whether appellant’s constitutional rights were violated.

Tex.R.App. P. 44.2(b) provides: “Any other [non-constitutional] error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”

“A ‘substantial right’ is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997).

In considering harm, the entire record must be reviewed to determine whether the error had more than a slight influence on the verdict. See King, 953 S.W.2d at 271 (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)); Reeves v. State, 969 S.W.2d 471, 491 (Tex.App. — Waco 1998, pet. refd). If the court finds that the error did have more than a slight influence on the verdict, it must be concluded that the error affected the defendant’s substantial rights in such a way as to require a new trial. Reeves, 969 S.W.2d at 491. If the court has grave doubts about the error’s effect on the outcome, the case must be remanded for a new trial. /¿Otherwise, the court should disregard the error. Id.

The charge in this case left the jury with the sole option of either convicting the defendant of the greater offense of aggravated assault or acquitting him. It found him guilty of aggravated assault, a second degree felony, and assessed six years confinement and a $2,500 fine. The range of punishment for a second degree felony is two to twenty years imprisonment plus a fíne of up to $10,000. Tex. Pen.Code Ann. § 12.33 (Vernon 1999). The lesser included offense of simple assault is a Class A misdemeanor. Had the jury been allowed to consider the lesser assault and found appellant guilty of it, the maximum punishment it could have assessed is far less severe: one year in jail and a $4,000 fine. Tex. Pen.Code Ann. § 12.21. Because of this, the jury was denied the opportunity to consider the entire range of offenses presented by the evidence. The jury was given only one option. The trial court eliminated not only the lesser included simple assault but also per force, self defense. The jury seeking an avenue to find some culpability of appellant, could only find the greater offense. The jury seeking to an avenue to find self defense was met with a dead end street. See Saunders v. State, 913 S.W.2d 564, 571 (Tex.Crim.App. 1995). We hold that the failure to submit the lesser included offense instruction amounts to at least “some harm” under Almanza/Airline v. State, 721 S.W.2d 348 (Tex.Crim.App.1986). Patently this harm affects a “substantial right” of appellant. See 44.2(b).

The jury was also concerned about appellant’s mental state by explicitly asking during deliberations whether it could consider self-defense. By asking the question, we may infer it likely was willing to consider appellant was guilty of a less culpable mental state than that required in felony assault. Because of this, it is more likely the jury would have found appellant’s mental state was such that he would have only been guilty of the lesser assault, had it been allowed to consider it.

The jury’s sua sponte request on self-defense is powerful, if not conclusive, evidence of its willingness of at least one juror’s desire to seriously consider it and that appellant was thus harmed by its omission. The jury’s inability to consider self-defense may have had even greater consequences than its inability to consider lesser-included offense. Rather than merely assess a shorter jail term and a smaller fine in the lesser-included offense context, had the jury believed appellant’s version of events pertaining to self-defense, appellant would have been entitled to an acquittal. In effect appellant was totally denied the opportunity to present his version of the evidence to the jury via proper instructions. Appellant was thus deprived of the fundamental right to defend himself in the face of harm.

In light of these circumstances, we believe the failure to instruct the jury on the lesser assault and self-defense had a substantial and injurious effect or influence in determining the jury’s verdict.⁶

The judgment of the trial court is reversed and remanded for a new trial.

1 . It seems to us that a beer bottle should not always be considered a “deadly weapon,” or the act of hitting someone with a bottle inevitably the cause of serious bodily harm.

2 . We disagree with the dissent that appellant’s brief fails to address the issue of whether he used a deadly weapon. Briefing rules are to be construed liberally. See Tex.R.App. P. 38.9. While there was not a discrete point of error regarding deadly weapon in appellant’s brief, he did point to the record where he timely requested a definition on deadly weapon in the charge, but was denied. Appellant also manifestly raised self-defense and the lesser assault issue, which, as we have elaborated, are inextricably intertwined with deadly force. The issue was thus briefed in a manner that substantially complied with Tex. R.App. P. 38. Appellant sufficiently raised the issue and is therefore entitled to have that issue determined by us.

3 .The argument that the jury found appellant to have used deadly force by implication because it ultimately found appellant guilty of aggravated assault (of which deadly force is an element) begs the issue at hand. That is, Was there sufficient evidence raised at trial to include self-defense in the charge? The proper resolution of that question would have required a specific determination by the jury of whether appellant used deadly force prior to their reaching the verdict.

4 . Section 9.31 outlines the conditions under which one may use force to protect against non-deadly force. This section is not applicable in a case in which a defendant has used deadly force. Section 9.32 permits the use of deadly force, but only to protect oneself against the immediate threat of deadly force. Therefore, to determine which section, if either, applies, the question of whether appellant used deadly force must be resolved. In denying appellant’s request for an issue on self-defense, the court appears to have incorrectly assumed deadly force was conclusively proven in that it only analyzed the request under Section 9.32.

5 . James Bowie, Antonio Fuentes and William Barrett Travis would not comfortably rest if they thought for one moment that modern Texans’ right to defend themselves was in jeopardy.

6 . We also note that, for the reasons stated above, this case also warrants reversal under the "some harm” test of Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985). In a number of subsequent cases, the Court of Criminal Appeals has found there to be "some” harm and reversed because of the omission of a lesser-included offense. See, e.g., Mitchell v. State, 807 S.W.2d 740, 742 (Tex.Crim.App. 1991); Hayes v. State, 728 S.W.2d 804, 810 (Tex.Crim.App. 1987); Gibson v. State, 726 S.W.2d 129, 133 (Tex.Crim.App. 1987); Moreno v. State, 702 S.W.2d 636, 641 (Tex.Crim. App.1986). While many courts continue to follow Almanza, it seems to us the amendments to the Texas Rules of Appellate Procedure effective September 1, 1997 may also require us to perform a harm analysis either under 44.2(a) Constitutional Error, or under 44.2(b) which globally includes "Other Errors.” See Tex.R.App. P. 44.2. The Almanza line of cases as well as Beck, supra, suggest this type of charge error, denial of self defense and misdemeanor assault, are of the constitutional nature. Cf. Valdez v. State, 993 S.W.2d 340, 344-45 (Tex.App.-EI Paso 1999, no pet.). Arguing in favor of the continued use of Almanza vis a vis R 44.2 is the proposition that the rule making authority of the Court of Criminal Appeals may not abridge, enlarge or modify substantive rights of accused. See Lyon v. State 872 S.W.2d 732, 735 (Tex.Crim.App. 1994). Accordingly, we choose the safer course of analysis under both standards.