Harry Anderson v. the State of Texas

Opinion

Affirmed and Opinion Filed March 13, 2024

In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00490-CR

HARRY ANDERSON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F-1624966-M

MEMORANDUM OPINION Before Justices Partida-Kipness, Reichek, and Breedlove Opinion by Justice Reichek Harry Anderson appeals his conviction for the second degree felony offense

of manslaughter. Asserting five issues, appellant contends (1) the trial court erred

in denying his motion for continuance, (2) the evidence is insufficient to support the

jury’s negative finding on the issue of self-defense, (3) the trial court erred in

overruling appellant’s objection to evidence of an extraneous offense, and (4) the

court’s charge to the jury contained an erroneous instruction on self-defense. We

affirm the trial court’s judgment. Background

Appellant and the victim, Darius Robinson, worked as day-laborers through

Pacesetter, a staffing service located in Garland, Texas. Darius had been receiving

work through Pacesetter for several years. Appellant began to receive job

placements through the company a few weeks before the date of the offense.

Darius’s wife, Brea Robinson, and Brea’s friends, Tabitha Randle and Kymerald

“Kim” McClure, also worked as day-laborers through Pacesetter.

In late November or early December 2016, appellant was placed at a job site

with Brea, Tabitha, and Kim. At the end of their shift, appellant and Kim were

involved in an altercation that resulted in the police being called. Appellant said

they were arguing about the location of Kim’s broom. According to appellant,

during the argument he used his broom to move Kim’s broom and Kim “was hit.”

Tabitha was present when the incident occurred and stated that appellant hit Kim

with a broom.

Tabitha and Kim told Darius about the broom incident. Brea additionally told

Darius that appellant was trying to talk to her. Tabitha testified Brea and appellant

were involved in a relationship, but that Darius was unaware of this. Appellant

stated at trial that he and Brea were having a “little affair,” including “groping” and

“lots of kissing.” Brea denied that she and appellant were involved. After being

–2– told about the broom incident and appellant’s attempts to talk to Brea, Darius told

Tabitha he was going to “charge up” appellant when he saw him.

On the morning of December 2, 2016, Darius, Brea, and Tabitha drove to

Pacesetter together. Brea and Tabitha checked in while Darius went to speak with

his cousin Rashad Lawson in the waiting area.

Appellant and his fiancée, Martekia Brown, were in Martekia’s car in the

Pacesetter parking lot after having spent the night there. Appellant testified Martekia

was still asleep when he went into the waiting room and encountered Darius. Darius

approached appellant and asked to speak to him outside. Although Darius had never

met appellant, Brea stated Darius recognized him because appellant has only one

eye. Appellant walked outside followed by Darius and Brea.

Brea testified that, once they were outside, Darius told appellant “if you have

a problem with the women, then you have a problem with me.” He further told

appellant and to stay away from Brea. Brea said appellant asked Darius if he was

threatening him, and Darius replied “no.” Appellant then walked back to Martekia’s

car and appeared to search for something inside. Brea told Darius they should go,

but Darius refused. Appellant returned a few minutes later.

Allison Kennedy was in the parking lot and saw appellant and Darius “getting

into it.” Kennedy testified that when Darius turned his head to say something to

Brea, appellant stabbed Darius in the side of his head with a folding knife. Darius

immediately fell to the ground. Brea stated both she and Darius tried to fight back

–3– against appellant, but they could not make contact with him. Brea screamed for

someone to call the police and everyone scattered. Allison testified appellant walked

past her saying something like “you heard me” before getting into his car and

speeding off.

When Brea looked down at Darius she saw he was bleeding from the head.

She used her scarf to put pressure on the wound. She later realized she had been

stabbed in the shoulder. Although Brea did not notice Rashad during the

confrontation, she stated Rashad sustained a stab wound as well.

Darius died as a result of his injuries. A medical examiner testified Darius

suffered multiple stab wounds to his head and back. The stab wound to his head

went through the temple bone and penetrated his temporal lobe. One of the stab

wounds to his back penetrated his kidney.

Appellant’s version of what occurred during his confrontation with Darius

differed from Brea’s and Allison’s versions with respect to what was said and who

initiated the physical fight. Appellant agreed that Darius confronted him about the

incident with Kim and told him to stay away from Brea. However, appellant stated

that Darius used highly threatening language, stating that he would kill appellant if

he did not stay away from Brea and he would “put it on Cript.” Appellant said

“Cript” was a reference to a street gang. Appellant conceded nothing physical

occurred before he walked back to Martekia’s car.

–4– Once back at the car, appellant said he was looking for his phone because he

did not know “what these people are about to do.” Appellant denied he was looking

for a knife, stating he already had a knife in his possession. He testified he always

carried a knife in his pocket for protection when he and Martekia slept in the car.

Appellant stated he returned to the Pacesetter building because he needed to get his

job assignment for the day.

As he walked back to the building, the argument with Darius resumed.

Appellant said Darius had one hand in his sweatshirt and, although he did not see

any weapons, he was concerned about what Darius might be concealing. As

appellant was looking at Darius’s hand, he said Darius hit him. Rashad then joined

in the fight. Appellant stated he did not remember pulling out his knife, but he

started “swinging to get away from there” because he was afraid he was going to be

killed.

Appellant said he eventually ran back to the car and drove away. Martekia

was still asleep when they left. Police tracked appellant to a gas station in Coppell

where he was arrested. In the car, police found a sweatshirt with blood on it, a knife,

a pair of scissors, and a box cutter. The knife used to stab Darius was not recovered.

Appellant testified he probably dropped it at the scene as he was running to get away

from the attack.

Appellant was arrested and indicted for the offense of murder. Trial began on

Wednesday, May 4, 2022. The State rested its case on Friday, May 6. On Monday,

–5– May 9, a discussion was conducted outside the presence of the jury in which defense

counsel stated he wanted to call Martekia as a witness, but was informed that

morning by Martekia’s son, Randall Brown, that she had suffered a mental

breakdown and was not able to testify. Counsel asked for a continuance of, “at a

minimum,” one week to allow Martekia’s condition to improve. The State

responded that it was concerned a one week break in the middle of the trial could

affect the jury’s ability to remember the evidence presented during the State’s case

in chief.

Randall was brought into court the same day for a sub rosa examination. He

testified Martekia suffered from schizophrenia and depression, and she had been

released from the hospital four days earlier. He stated his mother told him to bring

her to court that morning so she could testify, but he refused because he did not think

it was good idea. Defense counsel argued they needed Martekia’s testimony to

support appellant’s assertion that he was acting in self-defense when he stabbed

Darius. He said Martekia could testify regarding appellant’s mindset when he was

confronted at Pacesetter and “how shocked he was [at] having been attacked and

how he had to defend himself.” The trial court denied the request for a one-week

continuance, but agreed to continue the trial until the next day to allow the defense

time to secure Martekia’s appearance. The court indicated it believed a one-day

continuance would be sufficient since Martekia had indicated she wanted to appear

and testify.

–6– The next day, Martekia failed to come to court. The defense filed a sworn

motion asking to continue the case for another week stating “[w]e believe she may

be recovered enough to testify later this week but preferably after her next doctor’s

visit this Friday.” The court denied the additional continuance stating the defense

had not used the resources available to it to secure Martekia’s appearance in court

such as having her subpoenaed for the dates they wished her to testify or having their

appointed investigator ensure her presence at trial. The court further stated that,

because Martekia was not present in court, it was unable to determine whether she

was temporarily unable to testify due to her mental health issues.

After hearing the evidence, the jury found appellant guilty of the lesser

included offense of manslaughter. Punishment was assessed at life in prison. This

appeal followed.

Analysis

I. Continuance for Absent Witness

In his first issue, appellant contends the trial court erred in denying his motion

for continuance to secure Martekia’s testimony at trial. We review a trial court’s

decision to refuse a continuance for an abuse of discretion. Matamoros v. State, 901

S.W.2d 470, 478 (Tex. Crim. App. 1995). A continuance after trial has begun may

be granted only “when it is made to appear to the satisfaction of the court that by

some unexpected occurrence since the trial began, which no reasonable diligence

could have anticipated, the applicant is so taken by surprise that a fair trial cannot be

–7– had.” TEX. CODE CRIM. PROC. ANN. art. 29.13. Article 29.06 of the Texas Code of

Criminal Procedure provides that a first motion for continuance based on the absence

of a witness must show, among other things, the diligence used to procure the

witness’s attendance. TEX. CODE CRIM. PROC. ANN. art. 29.06. In the context of

article 29.06, diligence “is the exercise of timely and persistent efforts to secure the

attendance of witnesses, using the means and agencies provided by law.” Tucker v.

State, 109 S.W.3d 517, 520 (Tex. App.—Tyler 1999, pet. ref’d). If defense counsel

waits until shortly before trial to attempt to secure a witness, he has failed to exercise

diligence. See Norton v. State, 564 S.W.2d 714, 716–17 (Tex. Crim. App. 1978).

Appellant’s motion for continuance did not address the diligence used to

procure Martekia’s attendance at trial or how the defense was so surprised by her

absence that a fair trial could not be had. Randle’s testimony during the sub rosa

examination showed Martekia was willing to appear and testify. Although the trial

court gave the defense an additional day to secure her appearance “using the means

and agencies provided by law,” the defense offered no evidence of any attempt to do

so. Based on this record, we conclude the trial court did not abuse its discretion in

denying appellant’s motion for a continuance. We resolve appellant’s first issue

against him.

II. Sufficiency of the Evidence

In his second and third issues, appellant challenges the sufficiency of the

evidence to support the jury’s negative finding on the issue of self-defense. When

–8– reviewing a challenge to the sufficiency of the evidence supporting a criminal

conviction relative to a claim of self-defense, “we do not look to whether the State

presented evidence which refuted the self-defense testimony, but rather we

determine whether after viewing all the evidence in the light most favorable to the

prosecution, any rational trier of fact would have found the essential elements of [the

offense] beyond a reasonable doubt and also would have found against appellant on

the self-defense issue beyond a reasonable doubt.” Saxton v. State, 804 S.W.2d 910,

914 (Tex. Crim. App. 1991). We do not resolve conflicts of fact, weigh evidence,

or evaluate the credibility of the witnesses as this is the function of the trier of fact.

See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead we

determine whether both the explicit and implicit findings of the trier of fact are

rational by viewing all the evidence admitted at trial in the light most favorable to

the adjudication. Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992).

The factfinder is the sole judge of the witnesses’ credibility and their testimony’s

weight. See Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984). The

factfinder may choose to disbelieve all or any part of a witness’s testimony. See

Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). “A court’s role on

appeal is restricted to guarding against the rare occurrence when the factfinder does

not act rationally.” Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018).

A person is justified in using deadly force to the degree he reasonably believes

such force is immediately necessary to protect against another person’s use or

–9– attempted use of unlawful deadly force. TEX. PENAL CODE ANN. § 9.32(a)(1). A

reasonable belief is one that an ordinary and prudent person would hold under the

same circumstances. Id. § 1.07(a)(42). The use of force against another is not

justified in response to verbal provocation alone. Id. § 9.31(b)(1).

Appellant argues “the evidence presented at trial by the defen[se] establishes

that appellant feared for his life and was acting in self-defense when he brandished

the knife.” The evidence appellant believed his life was in danger came entirely

from his own testimony, however, which the jury was free to disbelieve. See Sharp,

707 S.W.2d at 614. Appellant conceded he never saw Darius with a weapon. The

State’s witnesses said appellant began the physical altercation by stabbing Darius in

the head when Darius turned his head to speak to his wife. Viewing the evidence in

the light most favorable to the verdict, the jury could rationally conclude appellant

never reasonably believed deadly force was immediately necessary protect himself

against any unlawful use of deadly force by Darius. See Gaona v. State, 498 S.W.3d

706, 709–10 (Tex. App.—Dallas 2016, pet. ref’d). We resolve appellant’s second

and third issues against him.

III. Extraneous Offense Evidence

In his fourth issue, appellant contends the trial court erred in overruling his

objection to the State’s questioning of Tabitha about the conflict between Kim and

appellant a few days before appellant killed Darius. Although Brea had already

testified about the “incident” generally, defense counsel objected when the State

–10– asked Tabitha to discuss the specifics of what occurred. Counsel argued it was “an

extraneous offense outside the scope of this testimony.”

Evidence of extraneous offenses is not admissible to prove that a defendant

committed the charged offense in conformity with a bad character. Devoe v. State,

354 S.W.3d 457, 469 (Tex. Crim. App. 2011). The evidence may be admissible,

however, when it has relevance apart from character conformity. Id. “The jury is

entitled to know all the relevant surrounding facts and circumstances of the charged

offense.” Id. We review the admission of extraneous offense evidence for an abuse

of discretion. Keller v. State, 604 S.W.3d 214, 222 (Tex. App.—Dallas 2020, pet.

ref’d). If the trial court’s ruling is within the “zone of reasonable disagreement,”

there is no abuse of discretion. Devoe, 354 S.W.3d at 469.

During the State’s case in chief, the prosecutor questioned Brea about the

“incident” between appellant and Kim without eliciting any details of what occurred.

Through Brea’s testimony, the State established the incident was a main impetus for

Darius wanting to speak with appellant on the day of the offense. On cross-

examination, defense counsel questioned the seriousness of the incident by asking

Brea if she was aware that Kim told the officers who were called to the scene that

she wasn’t hurt, and that the police considered the altercation to be only a

misdemeanor. Brea stated she was not aware of either of those things.

After the State rested, the defense called Tabitha as its first witness. Defense

counsel asked Tabitha about Brea’s relationship with appellant. Tabitha testified

–11– Brea would text appellant using her phone or Kim’s phone, and appellant would pick

Brea up from Tabitha’s house. She further said that, although Darius was not aware

of appellant’s relationship with Brea, he was made aware of appellant’s interest in

her. According to Tabitha, Darius told her he was going to “charge up” appellant.

By attempting to minimize the seriousness of the prior incident between

appellant and Kim, and presenting evidence of Brea’s alleged relationship with

appellant, the defense was attempting to shift the narrative of Darius’s motivation

for confronting appellant and support appellant’s claim that he reasonably feared for

his life. Tabitha’s testimony that appellant struck Kim with a broom was not elicited

to show appellant’s character, but rather that the incident was serious enough to

cause Darius to want to confront appellant about it. The incident was not, however,

of such a nature that it would justify appellant’s fear that Darius wanted to kill him.

“In all prosecutions for murder, the state or the defendant shall be permitted to offer

testimony as to all relevant facts and circumstances surrounding the killing and the

previous relationship existing between the accused and the deceased, together with

all relevant facts and circumstances going to show the condition of the mind of the

accused at the time of the offense.” TEX. CODE CRIM. PROC. ANN. art. 38.36 (a).

Because the details of the incident were relevant to show what appellant reasonably

believed was the reason for the confrontation at the time of the offense, we conclude

–12– the trial court did not abuse its discretion in overruling appellant’s objection. We

resolve appellant’s fourth issue against him.1

IV. Jury Instruction

In his final issue, appellant contends the trial court’s charge to the jury

contained an erroneous instruction regarding the duty to retreat. Before September

1, 2007, deadly force used in self-defense was justified only “if a reasonable person

in the actor’s situation would not have retreated.” Krajcovic v. State, 393 S.W.3d

282, 284 (Tex. Crim. App. 2013). After September 1, 2007, the Castle Doctrine

relieved a person of the duty to retreat if (1) the actor had a right to be present at the

location where the deadly force was used, (2) he did not provoke the person against

whom the deadly force was used, and (3) he was not engaged in criminal activity at

the time that the deadly force was used. Id.; see also TEX. PENAL CODE ANN.

§ 9.32(c). The court’s charge in this case properly instructed the jury on the elements

of the Castle Doctrine. In addition, the charge instructed the jury that “[i]n

determining whether an actor reasonably believed that the use of deadly force was

necessary, a finder of fact may not consider whether the actor failed to retreat.” The

application portions of the charge, however, instructed the jury it could acquit

appellant of the grounds of self-defense only if he (1) had a reasonable expectation

or fear of death or serious bodily injury, (2) reasonably believed the use of deadly

1 In his brief on appeal, appellant additionally argues the prejudicial effect of this evidence outweighed its probative value. We do not address this assertion because appellant did not object on this basis at trial. See Montgomery v. State, 810 S.W.2d 372, 388–89 (Tex. Crim. App. 1991). –13– force on his part was immediately necessary against Darius’s use or attempted use

of unlawful deadly force, and (3) a reasonable person in appellant’s situation at that

time would not have retreated. The State concedes the latter portion of the

application instruction is erroneous, but contends, based on the record, the error was

harmless. We agree.

In evaluating error in a jury charge, we must determine whether the error

caused sufficient harm to warrant reversal. Ngo v. State, 175 S.W.3d 738, 743 (Tex.

Crim. App. 2005). If, as in this case, the defendant objected to the error at trial, we

reverse if the error “is calculated to injure the rights of the defendant,” which means

there was “some harm.” Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App.

2009). To determine whether there was some harm from the error, we consider the

entire jury 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 in the record of the trial as a whole. Almanza v. State, 686 S.W.2d 157,

171 (Tex. Crim. App. 2011). The harm must be actual, and not merely theoretical.

Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).

Although appellant asserts in his brief on appeal that he was harmed by the

erroneous instruction, he provides no argument or analysis to show how he was

harmed. Looking at the jury charge as a whole, the section that properly instructed

the jury on the law of self-defense would have at least some mitigating effect on the

erroneous language in the application paragraphs. See Finch v. State, No. 05-15-

–14– 00793-CR, 2016 WL 2586142, at *7 (Tex. App.—Dallas May 4, 2016, pet. ref’d)

(mem. op., not designated for publication). More importantly, the duty to retreat

was not a contested issue at trial.

The State’s evidence showed appellant was the instigator of the fight in which

Darius was killed. In contrast, appellant testified he walked away after Darius

initially threatened him, and was attacked when he tried to return to the Pacesetter

office to obtain his work assignment. Appellant stated he pulled out his knife and

began swinging his arm in an attempt to escape the attack. Under the State’s theory

of the case, the duty to retreat was not applicable. Under appellant’s theory, any

duty to retreat was fulfilled. Neither side mentioned the duty to retreat during

opening or closing statements. Instead, they referred generally to the concept of

whether appellant’s conduct was justified because he was acting in self-defense.

After reviewing the record, we conclude appellant was not harmed by the erroneous

instruction. See Guzman v. State, No. 03-13-00131-CR, 2015 WL 2400238, at *9–

11 (Tex. App.—Austin May 13, 2015, pet. ref’d) (mem. op., not designated for

publication). We resolve appellant’s fifth issue against him.

We affirm the trial court’s judgment.

/Amanda L. Reichek// AMANDA L. REICHEK 220490f.u05 JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b)

–15– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

HARRY ANDERSON, Appellant On Appeal from the 194th Judicial District Court, Dallas County, Texas No. 05-22-00490-CR V. Trial Court Cause No. F-1624966-M. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Reichek. Justices Partida-Kipness and Breedlove participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 13th day of March, 2024.

–16–