Opinion issued November 15, 2012
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-10-00395-CR ——————————— GARY PATRICK REEVES, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court Harris County, Texas Trial Court Case No. 1210212
MEMORANDUM OPINION ON REHEARING
The State moved for rehearing of our January 26, 2012 memorandum
opinion. We grant the motion for rehearing, withdraw our January 26, 2012
opinion, and issue this opinion and judgment in its stead. Our prior judgment remains unchanged. We dismiss the State’s motion for en banc reconsideration as
moot.1
A jury found appellant Gary Patrick Reeves guilty of murder and assessed
his punishment at eighteen years’ confinement.2 In a single point of error, Reeves
contends that the trial court erred when it charged the jury on the law of provoking
the difficulty, over his timely objection that the evidence did not raise the issue.
We reverse and remand for further proceedings consistent with this opinion.
Background
Reeves was indicted for, and ultimately convicted of, intentionally and
knowingly causing the death of Jeromie Jackson by stabbing him with a deadly
weapon, namely, a knife. Reeves testified that he had known Jackson for about a
year and that he and Jackson met that evening at their mutual friend Jesse Adams’s
girlfriend’s house. Reeves suggested that the group gathered go out for drinks.
When Adams and another declined the invitation, Reeves and Jackson went alone.
Reeves’s plan was to buy the drinks and pay Jackson for gas so Jackson would
drive them to the bar and then drop him home afterwards. However, instead of a
ride home, Jackson drove him back to Adams’s girlfriend’s house about midnight.
At that time, Donna Whitfield and Chris Williams were on the front porch, and
1 See Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 40 & n.2 (Tex. App.— Houston [1st Dist.] 2004, pet. denied). 2 See TEX. PENAL CODE ANN. § 19.02(b)(1), (c) (West 2011).
2 when Jackson asked to see Adams, Whitfield went into the house to get him.
Reeves also testified that after Whitfield left, Jackson asked for ten dollars to buy a
crack rock from Adams. When Reeves declined, Jackson asked him how much he
was going to pay for the gas and when Reeves replied “five dollars,” Jackson
yelled that his truck was not moving for five dollars worth of gas. Reeves then
decided that he could do without a ride home after all; he could stay with his aunt
who lived nearby. Jackson pressed further for the gas money, and the argument
escalated to such a degree that Whitfield opened a window and scolded them to
keep it down so as not to wake her baby.
Jackson, according to Reeves, became increasingly agitated, and when
Jackson approached Reeves, threatening, “You’re going to make me take all your
money,” the two men began to wrestle. Reeves admits that after Jackson had him
pinned to the ground, in order to get free, he bit Jackson on the face. Shortly
thereafter, Adams came out of the house and broke up the fight. According to
Reeves, this was the first time he and Jackson had fought. Reeves testified that at
this point, Jackson was clearly enraged because Reeves had bit him on the face and
as Adams walked Jackson out to the sidewalk, Jackson turned back to Reeves and
screamed, “I’m going to kill your little ass when I get my hands on you, Jesse ain’t
going to be around all the time.”
3 Jackson, who had by this time been asked by several folks at the house to
leave, drove off. Reeves stayed behind to give Jackson time to leave the
neighborhood and to look for a cell phone he had lost during the fight. A few
minutes later, as Reeves and Adams walked out of the driveway, Jackson ran at
Reeves full speed, tackling him and pinning him against the fence. Jackson
“start[ed] swinging wildly, throwing punches from everywhere.” According to
Reeves, he tried unsuccessfully to block Jackson’s punches. Although he made
several requests for help, Adams refused his repeated pleas.
Jackson picked Reeves up, slammed him to the ground and started reaching
for Reeves’s pockets to take the money out. The two men continued to fight while
Adams watched. According to Reeves, Jackson then grabbed his throat and began
to choke him. Fearing for his life, and gasping for air, Reeves reached for the knife
he carried in his pocket, and he started swinging. Reeves testified that he did not
know how many times he struck Jackson, only that he was eventually able to get
away from him.
The jury was offered a decidedly different version of events by other
eyewitnesses. Whitfield testified that she and Williams were sitting in front of the
house in Adams’s truck and when Jackson and Reeves pulled up in front of the
house, both men were talking loudly about gas money. The men got out of the
truck and continued their arguing. Whitfield testified that Jackson and Reeves
4 began to wrestle soon thereafter, but she really could not see what was going on
due to her poor eyesight. At that point, Williams got out of Adams’s truck and
broke up the fight, but the two men resumed fighting shortly thereafter. Whitfield
told both Jackson and Reeves to stop fighting and get out of her sister’s yard.
After Williams broke up the fight for a second time, Whitfield heard Jackson state
that he was “through with it” and “don’t want to fight” and drove off. She testified
that after Jackson left, Reeves picked up his jacket and phone and as he was
leaving, encountered Jackson again who had evidently walked back to the house.
The two men began to fight again. At that point, Whitfield went inside the house
to get her sister, but when she looked out the open window, she heard Jackson say
that Reeves had stabbed him and heard Reeves say afterwards: “Y’all not going to
keep messing with me, y’all not going to make me feel like . . . a punk.”
Adams, the neighborhood friend of both Reeves and Jackson, testified that
Jackson called him when he and Reeves were leaving the bar to tell him that they
were going to stop by and see him. Adams testified that Jackson sounded excited
on the phone and that he could hear Reeves talking in the background. According
to Adams, Jackson and Reeves were arguing over gas money.3
By the time Jackson and Reeves arrived at the house, Adams was in bed
with his girlfriend, but his girlfriend’s sister, Whitfield, and her friend, Williams, 3 Reeves said that he was resting his eyes during the drive and he denied that the phone call ever took place.
5 were out in the front of the house. Although Reeves testified that Adams broke up
the first fight, Adams testified that he did not come outside until after that fight
was over and Jackson was in the process of moving his truck from the driveway.
According to Adams, he heard a commotion, went outside and he saw Reeves
standing in the yard by Adams’s truck and Jackson moving his truck from
driveway. Adams testified that Jackson parked his truck down the street and then
walked back to the house and stood at the gate, at which point Adams asked the
two what was going on. Jackson, his face bleeding, told Adams that Reeves bit his
nose. Reeves countered that Jackson was “tripping” and was asking for more
money. Adams also testified that Reeves told him, “Jesse, you better get him, I’m
going to hurt him, do something bad to him.” Adams later admitted that he had
told the police that Reeves had actually said, “I’m going to kill him, I’m going to
kill him.” Adams then noted that since Reeves was “not a violent dude,” he did
not take him seriously at the time. “He’s not a violent person at all.” Adams also
testified that Jackson, who was standing at the gate, was not violent either and was
a good guy, but Reeves had pushed him too far when he bit his face. According to
Adams, had Jackson not suffered the face wound, he probably would have just
gone home. Instead, Jackson threatened: “I’m going to get him, I’m going to get
him.” Adams later admitted that after he moved his truck, Jackson returned to the
house only because he wanted to fight.
6 Adams testified that he walked Reeves to where Jackson was waiting on the
sidewalk in an attempt to resolve the situation. Jackson and Reeves, however,
started pushing each other and then wrestling. Adams testified that he thought that
Reeves was just punching Jackson, until Jackson cried, “He’s stabbing me Jesse,”
at which point, Adams tried to stop the fight, but before he could do so, Reeves
took another swing at Jackson and stabbed him in the back. When told, “[Y]ou
killed Jeromie,” Reeves replied, “If you touch me Jesse, I’m going to kill you, too.
I’m going to stab you, too.” At that point Adams tended to Jackson and called 9-1-
1. When he looked back, Reeves was gone. Reeves surrendered to police a few
days later.
When asked why he did not try to stop the fight sooner, Adams replied that
“It was Jeromie’s decision [to fight]. He wanted to fight.” Adams also testified
that he did not see Jackson with any type of weapon that night and assumed that
they were simply going to fight it out with their fists.
Reeves objected to the inclusion of an instruction on the law of provoking
the difficulty as a qualification on his right to self-defense. His objection,
however, was overruled and the jury was instructed on the law of provoking the
difficulty. The jury found Reeves guilty of murder and assessed his punishment at
eighteen years’ confinement.
7 Discussion
In his sole point of error, Reeves contends the trial court erred by overruling
his objection to the jury charge on provocation. Reeves argues that the court’s
inclusion of such an instruction was improper because there was no evidence to
support the proposition that he provoked the difficulty.
A. Applicable Law
Our analysis first requires an initial determination of whether error actually
exists in the charge. Olivas v. State, 202 S.W.3d 137, 143–44 (Tex. Crim. App.
2006); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Only if the
court finds error do we proceed to the second step that requires examination of
harm resulting from the error. Olivas, 202 S.W.3d at 143–44; Almanza, 686
S.W.2d at 171.
Generally, “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.” TEX.
PENAL CODE ANN. § 9.31(a) (West 2011). One limitation on the right to
self-defense is the doctrine of provocation, also known as “provoking the
difficulty” or “provoking the attack.” See Smith v. State, 965 S.W.2d 509, 512
(Tex. Crim. App. 1998). The doctrine embodies a concept in criminal law that can
act as a total bar against a defendant’s right to self-defense. Id. 8 A charge on provocation is required when there is sufficient evidence (1)
that the defendant did some act or used some words which provoked the attack on
him, (2) that such act or words were reasonably calculated to provoke the attack,
and (3) that the act was done or the words were used for the purpose and with the
intent that the defendant would have a pretext for inflicting harm upon the other.
Id. at 513. A provocation instruction should be submitted to the jury only “when
there is evidence from which a rational jury could find every element of
provocation beyond a reasonable doubt.” Id. at 514. Our inquiry is whether “a
rational jury could have found provocation beyond a reasonable doubt, viewing the
evidence in the light most favorable to giving the instruction.” Id. Each element is
a fact question and may be established by circumstantial evidence. Id. at 513–19.
Unless raised by the facts, however, a charge on provoking the difficulty is an
unwarranted limitation on the right of self-defense and error. Matthews v. State,
708 S.W.2d 835, 837 (Tex. Crim. App. 1986).
B. Provoking the Difficulty
Here, the first two prongs of the test are met if a rational jury could have
found beyond a reasonable doubt that some act or words of Reeves actually caused
Jackson to attack him and that those words or acts were “reasonably capable of
9 causing an attack, or . . . ha[d] a reasonable tendency to cause an attack.” See
Smith, 965 S.W.2d at 514, 517.4
The State argues that a rational jury could have found beyond a reasonable
doubt that Reeves did or said something that caused Jackson to attack him and that
those words or acts were reasonably capable of causing an attack based upon both
direct and circumstantial evidence. Although Adams testified that Reeves
threatened to kill Jackson, Reeves did not make those threats until after the
fighting had started. Similarly, Reeves testified that when he and Jackson were
wrestling in the front yard, Jackson pinned him to the ground at one point, and he
bit Jackson on the face in order to get free. Based upon this uncontroverted
testimony, both Reeves’s threat and the bite occurred after he and Jackson were
4 After arguing on appeal that the provocation instruction was proper under Smith v. State, 965 S.W.2d 509 (Tex. Crim. App. 1998), the State argues for the first time on rehearing that this Court erred in applying Smith and should have applied the “raised by the evidence” standard set forth in section 2.03 of the Penal Code. TEX. PENAL CODE ANN. § 2.03(c) (West 2011) (stating defensive jury instruction should not be submitted to jury unless “evidence [was] admitted supporting the defense”). It is a well-settled principle of law that a party cannot invite error and then complain of it. See Woodall v. State, 336 S.W.3d 634, 644 (Tex. Crim. App. 2011) (“[A] party cannot take advantage of an error that it invited or caused.”); Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999). Having previously argued to this Court for the application of the Smith standard, the State is barred from arguing for the first time on rehearing that this Court (and necessarily, the trial court) erred in applying Smith and should have, sua sponte, applied the “raised by the evidence” standard.
10 physically fighting in the front yard. Such threats and conduct could not have
provoked a fight that was already in progress.
With regard to its circumstantial-evidence argument, the State argues that
while we do not know what happened before Jackson and Reeves arrived at
Adams’s girlfriend’s house, there is evidence in the record that they were arguing
over gas money before and after they arrived at the house, and the jury could have
inferred from this that Reeves did some act or used some words which provoked
the attack on him and that such acts or words were reasonably calculated to
provoke the attack. The State further argues that Reeves’s intent to provoke
Jackson as a pretext for murder can be gleaned from the fact that (1) Reeves had a
knife on him when he accosted Jackson at the gate and (2) Reeves stabbed Jackson
in the back after Jackson was already incapacitated on the ground. We disagree
that this evidence justifies the instruction.
First, although some provoking acts or words can by their own nature be
sufficient to support a jury finding of provocation, testimony that Jackson and
Reeves were arguing over gas money, albeit loudly and excitedly, is insufficient on
its own to support the instruction. This is particularly true given the fact that there
is no evidence that Jackson and Reeves were hurling insults at one another or using
inflammatory language. Cf. Smith, 965 S.W.2d at 517 (citing Bateson v. State, 80
S.W. 88, 93 (Tex. Crim. App. 1904) for proposition that “if the jury believed that
11 appellant called deceased a son of a bitch, this would certainly be sufficient to
provoke an assault by deceased”).
Second, testimony that Reeves had a pocket knife on his person at the time
of the fight and that he stabbed Jackson in the back one time as Adams was trying
to break up the fight is not sufficient under the facts of this case to demonstrate the
requisite intent. The cases relied upon by the State are factually distinguishable.
Unlike in those cases, Reeves did not make a special trip to get the knife before
seeking Jackson out. See Rogers v. State, 159 S.W. 44, 49 (Tex. Crim. App. 1913)
(stating that after altercation, defendant retrieved pistol before seeking out
complainant); Robins v. State, No. 01–99–00451–CR, 2002 WL 1980887, at *5
(Tex. App.—Houston [1st Dist.] Aug. 29, 2002, pet. ref’d) (not designated for
publication) (stating that evidence that defendant drove home to pick up handgun
before seeking out complainant was evidence of intent of creating pretext for
shooting); Gill v. State, 01-98-00674-CR, 1991 WL 681971, *2 (Tex. App.—
Houston [1st Dist.] Sept. 2, 1999, pet. ref’d) (not designated for publication)
(finding evidence of intent of creating pretext for shooting when defendant
retrieved pistol from her vehicle, pursued complainant, shot her from behind and
stated, “Man, I told that bitch not to be fucking with me”). Reeves had the pocket
knife with him earlier that day and evening. There is nothing in the record to
suggest that he was carrying it with him that day because of Jackson and the mere
12 fact that Reeves had the knife on his person at the time of the fight is not evidence
of intent to create a pretext.
Furthermore, although the State contends, based upon Adams’s testimony,
that Reeves stabbed Jackson in the back after Jackson was already incapacitated on
the ground, this version of events is not fully supported by the record. Adams
testified that Jackson was on the ground, and Reeves was on top of him, stabbing
him, and when he tried to pull Reeves away, Reeves took one final swing at
Jackson, stabbing him once in the back. Although evidence of overkill can
illuminate the intent element of provocation under certain circumstances, the
circumstances of the case cited for this proposition are a far cry from the one errant
strike in the present case. See Smith, 965 S.W.2d at 518 (citing Matthews v. State,
708 S.W.2d 835, 838 (Tex. Crim. App. 1986) for proposition that evidence that
defendant stabbed victim twenty-four times is considered in establishing intent).
The jury is the sole judge of credibility and weight to be attached to the
testimony of witnesses. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App.
2012). We permit juries to draw multiple reasonable inferences from facts as long
as each is supported by the evidence presented at trial. Id.; see Hooper v. State,
214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007) (stating that “courts of appeals
should . . . determine whether the necessary inferences are reasonable based upon
the combined and cumulative force of all the evidence when viewed in the light
13 most favorable to the verdict”). The jury is not permitted to draw conclusions
based on speculation because doing so is not sufficiently based on facts or
evidence to support a finding beyond a reasonable doubt. Hooper, 214 S.W.3d at
16; see also Evans v. State, 202 S.W.3d 158, 165 (Tex. Crim. App. 2006) (stating
that when evidence “gives rise to at least two, reasonably equal, plausible
inferences . . . it is clearly the jury that makes the choice of which inference to
accept”). Although a jury can rely upon wholly circumstantial evidence to find
provoking acts or words, Smith, 965 S.W.2d at 515–16, such evidence must create
more than a suspicion because juries are not permitted to reach speculative
conclusions. Louis v. State, 159 S.W.3d 236, 246 (Tex. App.—Beaumont 2005,
pet. ref’d). Here, the circumstantial evidence, taken as a whole, is such that a
finding by the jury of provoking acts or words on the part of Reeves’s would
amount to nothing more than impermissible speculation.
We conclude that viewing the evidence in a light most favorable to giving
the instruction, the evidence was insufficient for a reasonable jury to find the
necessary elements of provocation beyond a reasonable doubt, see Smith, 965
S.W.2d at 516–19, and we hold that the trial court erred by instructing the jury that
it should find against Reeves on his self-defense claim if it found beyond a
reasonable doubt that Reeves provoked the difficulty.
14 C. Harm
Because appellant objected, we will reverse if the erroneous submission of
the provocation jury instruction was “calculated to injure [his] rights.” TEX. CODE
CRIM. PROC. ANN. art. 36.19 (West 2006). This means no more than that there
must be some actual harm to the accused from the error. Almanza, 686 S.W.2d at
171. Under this test, any harm, regardless of degree, is sufficient to require
reversal. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996); Wells v.
State, 319 S.W.3d 82, 94 (Tex. App.—San Antonio 2010, pet. ref’d). To gauge
harm, we consider “the entire jury charge, the state of the evidence, including the
contested issues and weight of probative evidence, the argument of counsel and
any other relevant information revealed by the record of the trial as a whole.”
Almanza, 686 S.W.2d at 171. The harm question in this particular case is
“whether, in the absence of the provocation instruction, there would have been any
chance that the jury would have found that [appellant] acted in self-defense.”
Flores v. State, No. 06–05–00023–CR, 2008 WL 41388, at *4 (Tex. App.—
Texarkana Jan. 3, 2008, pet. ref’d) (mem. op., not designated for publication).
A person may use deadly force in self-defense “when and to the degree the
actor reasonably believes the deadly force is immediately necessary (A) to protect
the actor against the other’s use or attempted use of unlawful deadly force; or (B)
to prevent the other’s imminent commission of aggravated kidnapping, murder,
15 sexual assault, aggravated sexual assault, robbery, or aggravated robbery.” TEX.
PENAL CODE ANN. § 9.32(a)(2) (West 2011) (providing for deadly force in defense
of person).
Self-defense is an issue of fact to be determined by the jury. The jury, as the
fact-finder, is the sole judge of the weight and credibility of the evidence. Brown
v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008). A jury’s guilty verdict is
an implicit finding rejecting the defendant’s self-defense theory. Saxton v. State,
804 S.W.2d 910, 914 (Tex. Crim. App. 1991).
Although there was evidence that was inconsistent with Reeves’s theory of
self-defense, we conclude that the evidence of guilt was not so overwhelming that
the erroneous provocation instruction was harmless. Reeves testified to facts that,
if believed, supported his defense of self-defense. As the fact-finder, the jury was
free to reject some or all of Reeves’s version of the events, and having done so, the
jury could rationally have found all of the essential elements of murder beyond a
reasonable doubt. Nevertheless, we cannot determine if the jury actually rejected
Reeves’s self-defense claim because they disbelieved his testimony or if the jury
was prevented from reaching his self-defense claim due to the erroneous
submission of the provocation instruction. The provocation instruction’s presence
in the jury charge implied that there was some evidence to support every element
of the provocation doctrine when there was not. See McCandless v. State, 57 S.W.
16 672, 675 (Tex. Crim. App. 1900) (holding that giving of provocation charge
without sufficient evidence was harmful error because it was “calculated to make
the jury believe that, in the opinion of the judge, there was evidence tending to
show that appellant brought on the difficulty for the purpose of slaying his
adversary”); see also Tave v. State, 620 S.W.2d 604, 605–06 (Tex. Crim. App.
[Panel Op.] 1981) (concluding record was devoid of evidence supporting
“completely unwarranted” provocation; reversing and remanding). The erroneous
submission of the provocation instruction is particularly troubling in this case
because Reeves’s entire defense rested on the theory of self-defense; thus, any
erroneous instruction that limited his self-defense theory was likely to be harmful.
See Mendoza v. State, 349 S.W.3d 273, 284 (Tex. App.—Dallas 2011, no pet.)
(holding that erroneous submission of provocation instruction was harmful and
stating that by giving erroneous instruction, trial court essentially deprived
appellant of his entire defense—self-defense).
We sustain Reeves’s sole point of error.
17 Conclusion
We reverse the judgment of the trial court and remand for a new trial. See
TEX. CODE CRIM. PROC. ANN. art. 44.29(a) (West Supp. 2012).
Jim Sharp Justice
Panel consists of Justices Jennings, Sharp, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).