KRAJCOVIC v. State

351 S.W.3d 523, 2011 WL 3836473
CourtCourt of Appeals of Texas
DecidedOctober 6, 2011
Docket02-09-00020-CR
StatusPublished
Cited by12 cases

This text of 351 S.W.3d 523 (KRAJCOVIC 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.

Bluebook
KRAJCOVIC v. State, 351 S.W.3d 523, 2011 WL 3836473 (Tex. Ct. App. 2011).

Opinions

OPINION ON APPELLANT’S MOTION FOR EN BANC RECONSIDERATION

LEE ANN DAUPHINOT, Justice.

A jury convicted Appellant Paul Kr ajeo vie of murder and assessed his punishment at fifty-five years’ confinement. The trial court sentenced him accordingly. Appellant brings a single point on appeal, arguing that the trial court reversibly erred by submitting to the jury “a charge that improperly limited it to finding that an offense occurred prior to September 1, 2007 (the effective date of the Castle Doctrine).” Appellant argues that the date of the offense was a fact issue to be determined by the jury in order for the jury to further determine whether he had a duty to retreat. On original submission, we held that the trial court did not err by instructing the jury and affirmed the trial court’s judgment. Appellant subsequently filed a motion for en banc reconsideration. This court denies Appellant’s motion in a separate order today, but on our own motion, we withdraw our original opinion and judgment of July 29, 2010, and substitute the following.

Statement of Facts

Appellant and Jerrod DeShun (a/k/a Shawn) Scales used and sold drugs together. Darin Robinson, their friend and fellow drug user, testified that he and Shawn did drugs and watched movies at about 9:00 or 10:00 p.m. in late August 2007, on approximately August 25 or 26 (a Saturday [525]*525or Sunday) at Darin’s house. Darin stated that sometime later, Appellant called Shawn, and Shawn walked to Appellant’s house. Darin testified that he walked to Appellant’s house to get a cigarette at around 1:00 or 2:00 a.m. Darin stated that while he was at Appellant’s house, both Appellant and Shawn were in a good mood, there were no arguments between them, all three were using drugs, and both Appellant and Shawn asked him to leave because they expected some girls to come to Appellant’s house.

Wayne Shoffner, a friend, fellow drug user, and Darin’s houseguest, testified,

Q. Now, specifically talking about the last time you saw Shawn, do you remember about what day that was?
A. I knew it was on a Monday. I couldn’t tell you what the date was, but it was on a Monday.
Q. Was that in late August?
A. It might have been, yeah.
Q. Do you remember if—
A. It might have been in late August or early October. I’m not for sure. It was between one of those two.
Q. Late August, early—
A. — October.
Q. October? What about September?
A. It could have been there. I don’t know. It’s been a while.

But Wayne’s testimony also showed that he went to Appellant’s house on the same day that Shawn went to Appellant’s house to meet some girls and on the same day that Darin walked down to Appellant’s house to get a cigarette. (We note that that Monday would have been August 27, 2007, if we rely on the testimony of other witnesses.) Shawn left his car at Darin’s house that day. By the next morning, the car was gone.

Officer John Lambert, a narcotics officer with the City of The Colony, knew Shawn, Darin, and Wayne as drug users and drug dealers. Lambert regularly checked Appellant’s house and trash between July and September 2007. The last time that Lambert saw Shawn at Appellant’s house was on August 28, 2007, when he saw them both enter the house at around 5:30 p.m. Lambert learned that Shawn was missing on September 5, 2007.

Shawn failed to report for work on August 29, and, although he usually called his mother when he returned home late, he failed to do so after August 27, 2007.

The Friday or Saturday after Shawn last contacted his mother (August 31 or September 1), Appellant called Darin and invited him to try some cocaine at Appellant’s house. Darin stated that he walked into the kitchen or living room through the open garage at the back of Appellant’s house, which he testified was the method of entry Appellant preferred his guests to use, did a line of cocaine, and then left. There was no mention of Shawn.

Sometime during that weekend or early during the following week, Shawn’s father became worried and began searching for Shawn. On September 5 or 6, 2007, a mutual female friend of Darin’s and Appellant’s called Darin to tell him that something had happened to Shawn. Appellant did not answer when Darin tried to reach him immediately after receiving the phone call. A couple of days later, Darin and others met at Appellant’s house and banged on all the doors. “[N]obody was there.”

On September 6, 2007, Paul Krajcovie, Jr., Appellant’s father, and Paula Power, Appellant’s sister, went to The Colony Police Department and spoke with Officer Andrew Longo about a possible injured or dead body at Appellant’s home. Power told Detective Miles Outon that Appellant had told her that he had shot and killed a [526]*526black person in his house and had put the body in the bathroom.

Power had also told her father about a conversation with Appellant. Appellant was living in his parents’ house and had come to Power’s house the night of September 5, 2007, dropped his son D.K. off, and borrowed their mother’s car; their mother gave him some money. Later that night, Appellant returned to Power’s house, frightened. He was talking to Power and their mother in the garage when he said he heard something, cocked his gun, and told them to go inside the house. When Power and her mother came back out to the garage, Appellant told them that a dead man was in their mother’s bathroom with a bullet in his head and that some people were after him. Appellant told Power that he had shot a black man and put his body in the bathroom. Appellant told her that he had had to kill the man because “it was either [Appellant] or him.” There was a suggestion that Appellant had told Power that the man was still alive after Appellant had shot him, so Appellant had then strangled the man, but Power testified that she did not remember that statement.

D.K. testified about the last night that he spent with his father. They were living in Appellant’s mother’s house in The Colony. D.K. was unclear on the exact date but testified that he remembered talking to a counselor during the week before trial and that she had asked him what had happened in September 2007, and he told her about his last night with his father. On the last night that he was with his father, D.K. had not started school. He testified that school started in late August, right before he “got a holiday.” But he was not going to school because his father had not registered him. Appellant had told D.K. to lie to his mother and say that he was going to school.

D.K. testified that on their last night together, he and Appellant were in bed watching TV when they heard glass break. Appellant told D.K. to stay there under the covers, and Appellant left the room. D.K. heard a gunshot and then his father returned; D.K. thought Appellant came from the hallway. D.K. testified that Appellant looked scared as he came through the doorway because he’d just had to stop somebody who had broken into the house. Appellant immediately took D.K. to his aunt’s house where Appellant’s mother was visiting. D.K. testified that his father seemed frightened.

A long time before the gunshot, D.K.

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KRAJCOVIC v. State
351 S.W.3d 523 (Court of Appeals of Texas, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
351 S.W.3d 523, 2011 WL 3836473, Counsel Stack Legal Research, https://law.counselstack.com/opinion/krajcovic-v-state-texapp-2011.