Pozzerle, Alan

Opinion

PD-1486-15

No. ___________

IN THE

Court of Criminal Appeals At Austin __________

ALAN POZZERLE, Appellant v.

THE STATE OF TEXAS Appellee _________ Cause numbers 1384872 In the 183rd Judicial District Court Of Harris County, Texas

Cause number 14-14-00610-CR In the Court of Appeals for the Fourteenth Judicial District _________

Appellant’s Petition for Discretionary Review __________

KELLY ANN SMITH Texas Bar No. 00797867 December 30, 2015 Kelly.A.Smith.06@gmail.com P.O. Box 10751 Houston, TX 77206 281-734-0668

Counsel for Appellant Ground For Review

The Court of Appeals erred by holding the appellant was not entitled to a defense of property instruction because moments had passed since he had been dispossessed of his property and was therefore not in “fresh pursuit”.

Statement Regarding Oral Argument

Because this case involves important issues regarding this state's jurisprudence, the

appellant submits that oral argument would benefit this Court and pursuant to TEX.

R. APP. P. 68.4 (c), requests the opportunity to present oral argument.

i No. _________________

THE STATE OF TEXAS Appellee _________ Cause numbers 1384872 In the 183rd Judicial District Court Of Harris County, Texas

Cause number 14-14-00610-CR In the Court of Appeals for the Fourteenth Judicial District _________

Appellant’s Petition for Discretionary Review TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

The appellant, by and through undersigned counsel, files this Petition for

Discretionary Review and urges this Court to grant discretionary review in this case

and in support demonstrates the following.

ii IDENTITY OF PARTIES AND COUNSEL

The Appellant has provided a complete list of all interested parties’ names below,

under TEX. R. APP. P. 68.4.

The appellant or convicted person: Alan Pozzerle  Appellant TDCJ No. 01943752 Estelle Unit 264 FM 3478, Huntsville, TX 77320-3320 Counsel for the appellant: Kelly Ann Smith Counsel on appeal PO Box 10751 Houston, Texas 77206 Phone: (281) 734-0668

Allen Tanner  Counsel at trial 917 Franklin, Ste. 550 Houston, Texas 77002 (713) 225-1100

Counsel for the State: Devon Anderson District Attorney of Harris County Harris County Criminal Justice Center Luis Batarse  Assistant District Attorneys at trial Lisa Collins Harris County Criminal Justice Center 1201 Franklin, Suite 600 Houston, Texas 77002 Telephone: 713•755•5800

Trial Judge: Hon. Vanessa Velasquez  Presiding Judge of the 183rd District Court

iii Table of Contents Page

GROUND FOR REVIEW................................................................................................. I STATEMENT REGARDING ORAL ARGUMENT ............................................................... I IDENTITY OF PARTIES AND COUNSEL ....................................................................... III INDEX OF AUTHORITIES.............................................................................................. V STATEMENT OF THE CASE ...........................................................................................2 STATEMENT OF THE PROCEDURAL HISTORY ...............................................................2 GROUND FOR REVIEW .................................................................................................3 REASONS FOR REVIEW ................................................................................................3 PRAYER .......................................................................................................................4 CERTIFICATE OF COMPLIANCE & SERVICE ..................................................................5

iv INDEX OF AUTHORITIES

.Statutes TEX. PENAL CODE § 9.41 ..................................................................................................... 4 TEX. PENAL CODE § 9.42 ..................................................................................................... 3

Rules TEX. R. APP. P. 68.4.............................................................................................................. i

v TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

The State accused the appellant of murder. (CR 34). The indictment alleged that

the appellant caused William Johnson’s death by striking Johnson with a motor vehicle

and, in a separate paragraph, with a club (CR 34). The appellant pled not guilty to the

indictments’ allegations, and the case was tried together before a jury and the Honorable

Vanessa Velasquez, presiding judge of the 183rd District Court in Harris County Texas

(RR Vol. II at 5-6). The jury found the appellant guilty of murder than assessed his

punishment at thirty-five years in prison (CR 91, 98, 99; RR Vol. VI at 96; Vol. VII at

4). The appellant filed a notice of appeal, and the trial court certified the appellant’s right

to appeal (CR 102-3).

STATEMENT OF THE PROCEDURAL HISTORY

The Fourteenth Court of Appeals affirmed the appellant’s conviction in Alan

Pozzerle v. The State of Texas, Nos. 14-14-00610-CR, (Tex. App.—Houston [1st Dist.]

October 13, 2015). Neither party filed a motion for rehearing.

2 GROUND FOR REVIEW

The Court of Appeals erred by holding the appellant was not entitled to a defense of property instruction because moments had passed since he had been dispossessed of his property and was therefore not in “fresh pursuit”.

REASONS FOR REVIEW

This Court should grant review to address what constitutes “fresh pursuit” for

purposes of penal code section 9.41. Here, the appellant tried his case on a theory of

defense of property and self. He testified that immediately prior to the altercation, his

mobile phone had been stolen, and the complainant was holding it in lieu of a

ransom. The apparent thief spoke to the appellant and demanded $80 for the phone’s

return. The appellant needed his mobile phone for work and was desperately anxious

for its return. He met William Johnson in an attempt to retrieve his phone. The

meeting was captured on videotape and witnessed by Alvin Hickman. The appellant

admitted engaging in the acts that led to Johnson’s death, but claimed Johnson was

alive when he left him. The appellant admitted to striking Johnson with a jack handle

and his van, but claimed a Hickman, his accomplice, turned the wheel and was more

responsible than him for the van striking Johnson. The appellant recovered his

phone.

During the charge conference the appellant requested an instruction on section

9.42 on use of deadly force to protect property. See TEX. PENAL CODE §§ 9.41 &

3 9.42. The trial court denied the appellant’s request. The court of appeals upheld this

denial by determining the appellant was not “in fresh pursuit” of his phone. See

Pozzerle v. State, Nos. 14-14-00610-CR, slip op. The court of appeals, without the

benefit of any brief from the state, determined that somewhere the record reflected

forty-five minutes passed while the appellant was attempting to retrieve his phone.

The court of appeals then relied on only unpublished authority from the First and

Fourteenth Courts of Appeals before holding that the appellant was not entitled to a

defense of property instruction because he was not in fresh pursuit of his phone.

This Court should grant review and determine what constitutes “fresh pursuit”

for purposes of penal code section 9.41.

PRAYER

The appellant respectfully urges this Honorable Court to grant the Appellant’s

Petition for Discretionary Review.

______ /s /___________________ KELLY ANN SMITH Texas Bar No. 00797867

4 CERTIFICATE OF COMPLIANCE & SERVICE

Under TEX. R. APP. P. 9.4, 9.5 & 68.11, this certifies that this document contains

2543 words and the undersigned served a copy of this petition on the State of Texas and

the State Prosecuting Attorney at the following addresses:

Devon Anderson Lisa C. McMinn Harris County District Attorney P.O. Box 13046 1201 Franklin, Suite 600 Capitol Station Houston, Texas 77002 Austin, Texas 78711 (512) 463-1660

______ /s /___________________ KELLY ANN SMITH Texas Bar No. 00797867 P.O. Box 10752 Houston, TX 77206 281-734-0668

5 Affirmed and Memorandum Opinion filed October 13, 2015.

Fourteenth Court of Appeals

NO. 14-14-00610-CR

ALAN POZZERLE, Appellant

V. THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court Harris County, Texas Trial Court Cause No. 1384872

MEMORANDUM OPINION

A jury convicted appellant Alan Pozzerle of murder and sentenced him to confinement for thirty-five years in the Institutional Division of the Texas Department of Criminal Justice. In two issues, appellant claims the trial court erred in instructing the jury. We affirm.

2 I. BACKGROUND

Appellant’s cell phone was taken out of the motel room in which he was living. Appellant called his phone and eventually someone answered, demanding $80 for the phone’s return. Appellant called 9-1-1 to report the theft and went to a nearby convenience store to retrieve it. Neither the police nor anyone with his phone arrived. Appellant called his phone again and arranged to pay for the return of his phone.

Appellant and another man met the complainant on a street near the motel. Appellant’s account of what followed varied from that of his companion but both testified that appellant hit the complainant with an object (described by appellant as a floor jack handle) and then struck the complainant with his van. Appellant testified that he then retrieved his phone and left the scene. The man subsequently was found dead where appellant left him.

II. DEFENSE OF PROPERTY

Appellant’s first issue asserts the trial court erred by refusing his request to instruct the jury during the guilt-innocence phase on defense of property as justification for the complainant’s murder. Appellant cites Texas Penal Code section 9.41 and 9.42 in support of his claim.

Under section 9.41(a), “[a] person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property.” See Tex. Penal Code Ann. § 9.41(a) (West 2011). However, the evidence reflects appellant was no longer in possession of his phone. Where, as here, the alleged owner of property already had been dispossessed of property and

2 was attempting to regain possession at the time force was used, section 9.41(b) is applicable:

A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and: (1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or (2) the other accomplished the dispossession by using force, threat, or fraud against the actor. Id. § 9.41(b) (West 2011) (emphasis added). The record reflects appellant called 9- 1-1 and reported the phone stolen approximately forty-five minutes before the altercation with the complainant. See Ordonez v. State, 14-10-00132-CR, 2010 WL 5395808, at *3 (Tex. App.—Houston [14th Dist.] Dec. 21, 2010, no pet.) (mem. op.) (not designated for publication), citing Salley v. State, No. 14–97–00656–CR, 2000 WL 552193, at *3 (Tex.App.—Houston [14th Dist.] 2000, pet. ref’d) (mem. op.) (not designated for publication) (appellant’s use of force was not immediately after or in fresh pursuit after dispossession when he walked down to his van, retrieved a shotgun, returned upstairs, and shot the complainant who had refused to return appellant’s revolver); Hall v. State, No. 01–88–00511–CR, 1989 WL 21835, at *2 (Tex. App.—Houston [1st Dist.] 1989, no pet.) (not designated for publication) (appellant who used force in an attempt to recover a wrecker approximately one hour after it was taken did not act “immediately or in fresh pursuit”). Appellant’s use of force against the complainant was therefore not immediate or in fresh pursuit after he was dispossessed of the phone. Accordingly, the trial court did not err in refusing to instruct the jury on defense of property. Appellant’s first issue is overruled.

3 II. SUDDEN PASSION

In his second issue, appellant argues the trial court erred by refusing his request to instruct the jury during the punishment phase on the special issue of sudden passion. See Tex. Pen. Code Ann. § 19.02(d) (West 2011); Wooten v. State, 400 S.W.3d 601, 605 (Tex. Crim. App. 2013).

A murder committed under the “immediate influence of sudden passion arising from an adequate cause” is a second-degree felony and carries a maximum punishment of imprisonment for twenty years. Tex. Penal Code Ann. § 19.02(d). Sudden passion arises at the time of the murder and is “passion directly caused by and arising out of provocation by the individual killed.” Id. § 19.02(a)(2). Adequate cause “would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.” Id. § 19.02(a)(1). With respect to the issue of sudden passion, the defendant has the burden of production and persuasion. Id. § 19.02(d).

To justify an instruction to the jury on the issue of sudden passion at the punishment phase, the record must at least minimally support an inference: 1) the defendant in fact acted under the immediate influence of a passion such as terror, anger, rage, or resentment; 2) his sudden passion was in fact induced by some provocation by the deceased or another acting with him which would commonly produce such a passion in a person of ordinary temper; 3) he committed the murder before regaining his capacity for cool reflection; and 4) a causal connection existed between the provocation, passion, and the murder. Wooten, 400 S.W.3d at 605. If the evidence from any source, during either phase of trial, raises the issue, be it weak, impeached, contradicted, or unbelievable, the trial court must submit the issue in the jury charge if it was requested by the defendant. Id. We first determine whether the trial court erred by failing to submit such an instruction. Id. at 606.

4 In support of his argument that he raised the issue of sudden passion, appellant refers to the testimony of a witness:

. . . But that day, he lost it. So, it really tripped me out, you know. I’d never seen a bad side to him. Never have. But that day, he tripped all the way out. ... He was silent. His -- his face, I can’t describe it, but he was not hisself. He was, like, transformed to something else. I don’t know what it was, but he was not hisself. I had never seen him act like that before, never. Appellant also points to his own testimony that “[his] mind was doing a hundred miles a minute” and he was mad.

The record reflects appellant testified as follows:

Yes. I was mad. But as soon as I got my phone, my anger level just dropped and I was more squared [sic] than anything because during all this time I was also scared because this guy’s pulled a knife on me. (Emphasis added.)

While there was evidence appellant acted in response to provocation, i.e. the complainant’s alleged theft of his phone, there was no evidence that appellant acted under the immediate influence of terror, anger, rage, or resentment. See Trevino v. State, 100 S.W.3d 232, 241 (Tex. Crim. App. 2003) (per curiam). As noted above, appellant called 9-1-1 to report the stolen phone approximately forty- five minutes before the complainant was killed and his own testimony reveals that he “cooled off.” Moreover, being robbed of a cell phone would not commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection. See Nava v. State, 379 S.W.3d 396, 423 (Tex. App.—Houston [14th Dist.] 2012), aff’d, 415 S.W.3d 289 (Tex. Crim. App. 2013). Appellant’s claim that he was scared because

5 the complainant had a knife is insufficient because a “bare claim of fear” does not demonstrate “sudden passion arising from adequate cause.” Wooten, 400 S.W.3d at 606–607. Accordingly, the trial court did not err in failing to instruct the jury on the issue of sudden passion at punishment. Appellant’s second issue is overruled.

Having overruled both of appellant’s issues, the judgment of the trial court is affirmed.

/s/ Martha Hill Jamison Justice

Panel consists of Justices Jamison, McCally, and Wise. Do Not Publish — Tex. R. App. P. 47.2(b).