Ricky Neal Jr. v. State
Opinion
ACCEPTED 12-14-00158-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 5/8/2015 6:51:57 PM CATHY LUSK CLERK
APPELLANT RESPECTFULLY REQUESTS ORAL ARGUMENT
FILED IN 12th COURT OF APPEALS 12-14-00158-CR TYLER, TEXAS 5/8/2015 6:51:57 PM CATHY S. LUSK Clerk IN THE COURT OF APPEALS FOR THE TWELFTH DISTRICT TYLER, TEXAS
RICKY NEAL, JR., Appellant
VS.
THE STATE OF TEXAS, Appellee
On Appeal from the 7th District Court of Smith County, Texas Trial Court Cause No. 007-0505-13 Before the Honorable Kerry L. Russell
APPELLANT’S BRIEF
Law Office of G. J. Smith, Sr. ATTORNEY AT LAW 2000 E. Lamar Blvd., Suite 330 Arlington, Texas 76006 Tel 8 17 -635-3100 Fax 817-635-3104 attorney@gjsmithlaw.com Attorney for Appellant Identity of Parties and Counsel
Parties to the Appeal:
The State of Texas
Names and Addresses of Trial Counsel:
Jeffrey Allen Wood and Brian Mitchell Jiral Assistant District Attorney Smith County District Attorney 100 N. Broadway Avenue Tyler, Texas 75702 (903) 535-0520
Thad Watts Davidson Davidson Law Office 329 South Fannin Avenue Tyler, Texas 75702 (903) 595.9600
Names and Addresses of Appellate Counsel:
Michael West Assistant District Attorney Smith County District Attorney 100 N. Broadway Avenue, 4th Floor Tyler, Texas 75702
Gerald J. Smith, Sr. 2000 E. Lamar Blvd., Suite 330 Arlington, Texas 76006
ii Request for Oral Argument
In accordance with Rule 39.1 of the Texas Rules of Appellate Procedure, Appellant respectfully requests oral argument. Appellant submits that if granted, oral argument in this cause will further clarify the issues raised in this brief and aid this Honorable Court in assessing the merits of the arguments raised therein.
Table of Contents
Identity of Parties and Counsel ........................................................................................ ii
Request for Oral Argument ............................................................................................. ii
Table of Contents .................................................................................................................. ii
Index of Authorities ............................................................................................................. iv
Statement of the Case ..................................................................................................... vii
Issues Presented................................................................................................................... viii
References to the Record.................................................................................................. 1
Background ............................................................................................................................. 2
Statement of Facts ..........................................................................................................3-4
Summary of Arguments ........................................................................................................ 4
Argument ................................................................................................................................. 5
Issue One: The State failed to prove that Appellant did not fire upon and kill Mass in self-defense……………………………………………………………………...5
Issue Two: The trial court erred in limiting Appellant’s ability to elicit testimony establishing the alleged victim, Moss’, gang affiliation and how that evidence demonstrated Appellant’s justified use of deadly force in this case……………. .... 20
iii Issue Three: The trial court erred in limiting Appellant’s ability to elicit testimony establishing the alleged victim, Moss’, gang affiliation and how that evidence demonstrated Appellant’s justified use of deadly force in this case……………….27
Issue Four: The trial court erred in limiting Appellant’s cross-examination of State’s witnesses to establish the alleged victim, Moss’, gang affiliation and how that evidence demonstrated Appellant’s justified use of deadly force in this case.……..30
Issue Five: The trial court erred in denying Appellant’s request for a necessity instruction. ……………………………………………………………………..…41
Issue Six: The trial court erred in its ruling that Appellant could not elicit testimony from defense witness, Wilmon Davis, that shortly prior to the shooting someone in the mall utter “he might get shot.”………………………………...…46 Issue Seven: Trial counsel rendered ineffective assistance of counsel in failing to challenge whether the State’s gang identification witness was qualified to render an expert opinion that Appellant was affiliated with a gang. ….………………….…58
Issue Eight: The trial court erred in denying Appellant’s request lesser-included offense jury instructions. ……………………..…………………………………...76
Issue Nine: The trial court erred in denying Appellant’s request for inclusion in the punishment charge of a sudden passion instruction…….………………………...81
Prayer………………………………………………………………………….…..88
Certificate of Compliance ……………………………………………………..….88
Index of Authorities
Cases
Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App.1994). .................................... 75 Airline v. State, 721 S. W. 2d 348, 351 (Tex. Crim. App. 1986) ................................. 40 Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).................................53
iv Andrews v. State, 159 S.W.3d 98 (Tex.Crim.App.2005) ............................................... 61
Anderson v. State, 15 S.W. 3d 177, 184 (Tex. App.—Texarkana 2000) ……………57 Alonzo v. State, 353 S.W. 3d 778, 781 (Tex. Crim. App. 2011) …………………..77
Barrios v. State, 389 S.W.3d 382 (Tex. App.—Texarkana 2012) ................................ 34
Benavides v. State, 992 S.W.2d 511, 524–25 (Tex. App.–Houston [1st Dist.] 1999, pet. ref'd)………………………………………………………………………...... 87 Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) .................................... 55 Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010) ......................................... 6
Bumgardner v. State, 963 S.W.2d 171, 175 (Tex. App. 1998)........................................ 52 Butler v. State, 663 S.W.2d 492, 496 (Tex. App. 1983). ................................................ 52
Carmen v. State, 276 S.W.3d 538, 545 (Tex. App. 2008) .............................................. 44 Chew v. State, 804 S.W.2d 633, 635 (Tex.App.-San Antonio 1991). ........................... 29
Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007). ........................................ 6
Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000) ............................................. 6
Davis v. State, 278 S.W.3d 346, 352 (Tex.Crim.App.2009) ......................................... 50 Darkins v. State, 430 S.W.3d 559, 565 (Tex.App.-Houston [14th Dist.] 2014). .......... 8 DeLeon v. State, 322 S.W.3d 375 (Tex. App. 2010 ........................................................ 75 Dempsey v. State, 159 Tex. Crim. 602, 266 S.W.2d 875, 877–78 (Tex. Crim. App.
1954)........................................................................................................................23
Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989) ................................... 50
Diaz v. State, 380 S.W.3d 309, 311 (Tex.App.Fort Worth 2012, pet. ref'd) ............. 57 Daubert v.
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ACCEPTED 12-14-00158-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 5/8/2015 6:51:57 PM CATHY LUSK CLERK
APPELLANT RESPECTFULLY REQUESTS ORAL ARGUMENT
FILED IN 12th COURT OF APPEALS 12-14-00158-CR TYLER, TEXAS 5/8/2015 6:51:57 PM CATHY S. LUSK Clerk IN THE COURT OF APPEALS FOR THE TWELFTH DISTRICT TYLER, TEXAS
RICKY NEAL, JR., Appellant
VS.
THE STATE OF TEXAS, Appellee
On Appeal from the 7th District Court of Smith County, Texas Trial Court Cause No. 007-0505-13 Before the Honorable Kerry L. Russell
APPELLANT’S BRIEF
Law Office of G. J. Smith, Sr. ATTORNEY AT LAW 2000 E. Lamar Blvd., Suite 330 Arlington, Texas 76006 Tel 8 17 -635-3100 Fax 817-635-3104 attorney@gjsmithlaw.com Attorney for Appellant Identity of Parties and Counsel
Parties to the Appeal:
The State of Texas
Names and Addresses of Trial Counsel:
Jeffrey Allen Wood and Brian Mitchell Jiral Assistant District Attorney Smith County District Attorney 100 N. Broadway Avenue Tyler, Texas 75702 (903) 535-0520
Thad Watts Davidson Davidson Law Office 329 South Fannin Avenue Tyler, Texas 75702 (903) 595.9600
Names and Addresses of Appellate Counsel:
Michael West Assistant District Attorney Smith County District Attorney 100 N. Broadway Avenue, 4th Floor Tyler, Texas 75702
Gerald J. Smith, Sr. 2000 E. Lamar Blvd., Suite 330 Arlington, Texas 76006
ii Request for Oral Argument
In accordance with Rule 39.1 of the Texas Rules of Appellate Procedure, Appellant respectfully requests oral argument. Appellant submits that if granted, oral argument in this cause will further clarify the issues raised in this brief and aid this Honorable Court in assessing the merits of the arguments raised therein.
Table of Contents
Identity of Parties and Counsel ........................................................................................ ii
Request for Oral Argument ............................................................................................. ii
Table of Contents .................................................................................................................. ii
Index of Authorities ............................................................................................................. iv
Statement of the Case ..................................................................................................... vii
Issues Presented................................................................................................................... viii
References to the Record.................................................................................................. 1
Background ............................................................................................................................. 2
Statement of Facts ..........................................................................................................3-4
Summary of Arguments ........................................................................................................ 4
Argument ................................................................................................................................. 5
Issue One: The State failed to prove that Appellant did not fire upon and kill Mass in self-defense……………………………………………………………………...5
Issue Two: The trial court erred in limiting Appellant’s ability to elicit testimony establishing the alleged victim, Moss’, gang affiliation and how that evidence demonstrated Appellant’s justified use of deadly force in this case……………. .... 20
iii Issue Three: The trial court erred in limiting Appellant’s ability to elicit testimony establishing the alleged victim, Moss’, gang affiliation and how that evidence demonstrated Appellant’s justified use of deadly force in this case……………….27
Issue Four: The trial court erred in limiting Appellant’s cross-examination of State’s witnesses to establish the alleged victim, Moss’, gang affiliation and how that evidence demonstrated Appellant’s justified use of deadly force in this case.……..30
Issue Five: The trial court erred in denying Appellant’s request for a necessity instruction. ……………………………………………………………………..…41
Issue Six: The trial court erred in its ruling that Appellant could not elicit testimony from defense witness, Wilmon Davis, that shortly prior to the shooting someone in the mall utter “he might get shot.”………………………………...…46 Issue Seven: Trial counsel rendered ineffective assistance of counsel in failing to challenge whether the State’s gang identification witness was qualified to render an expert opinion that Appellant was affiliated with a gang. ….………………….…58
Issue Eight: The trial court erred in denying Appellant’s request lesser-included offense jury instructions. ……………………..…………………………………...76
Issue Nine: The trial court erred in denying Appellant’s request for inclusion in the punishment charge of a sudden passion instruction…….………………………...81
Prayer………………………………………………………………………….…..88
Certificate of Compliance ……………………………………………………..….88
Index of Authorities
Cases
Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App.1994). .................................... 75 Airline v. State, 721 S. W. 2d 348, 351 (Tex. Crim. App. 1986) ................................. 40 Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).................................53
iv Andrews v. State, 159 S.W.3d 98 (Tex.Crim.App.2005) ............................................... 61
Anderson v. State, 15 S.W. 3d 177, 184 (Tex. App.—Texarkana 2000) ……………57 Alonzo v. State, 353 S.W. 3d 778, 781 (Tex. Crim. App. 2011) …………………..77
Barrios v. State, 389 S.W.3d 382 (Tex. App.—Texarkana 2012) ................................ 34
Benavides v. State, 992 S.W.2d 511, 524–25 (Tex. App.–Houston [1st Dist.] 1999, pet. ref'd)………………………………………………………………………...... 87 Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) .................................... 55 Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010) ......................................... 6
Bumgardner v. State, 963 S.W.2d 171, 175 (Tex. App. 1998)........................................ 52 Butler v. State, 663 S.W.2d 492, 496 (Tex. App. 1983). ................................................ 52
Carmen v. State, 276 S.W.3d 538, 545 (Tex. App. 2008) .............................................. 44 Chew v. State, 804 S.W.2d 633, 635 (Tex.App.-San Antonio 1991). ........................... 29
Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007). ........................................ 6
Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000) ............................................. 6
Davis v. State, 278 S.W.3d 346, 352 (Tex.Crim.App.2009) ......................................... 50 Darkins v. State, 430 S.W.3d 559, 565 (Tex.App.-Houston [14th Dist.] 2014). .......... 8 DeLeon v. State, 322 S.W.3d 375 (Tex. App. 2010 ........................................................ 75 Dempsey v. State, 159 Tex. Crim. 602, 266 S.W.2d 875, 877–78 (Tex. Crim. App.
1954)........................................................................................................................23
Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989) ................................... 50
Diaz v. State, 380 S.W.3d 309, 311 (Tex.App.Fort Worth 2012, pet. ref'd) ............. 57 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 587 (1993). ......................................60 Ferrel v.State, 55 S.W.3d 586, 591 (Tex.Crim.App.2001) ................................................33
v Fry v. State, 915 S.W.2d 554, 560–61 (Tex.App.-Houston [14th Dist.] 1995, no pet.). ................................................................................................................................... 23 Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) .................................... 61 Gaspar, 327 S.W.3d 349, 356 (Tex. App.—Texarkana 2010) ................................. 43
Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998)………..63
Green v State, 876 S.W.2d.226 (Tex.App.—Beaumont 1994, no pet.) ...................... 56
Guilbeau v. State, 193 S.W.3d 156 160 (Tex. App.—Houston (1st Dist.) 2006)……51
Guzman v. State, 188 S.W.3d 185, 188 (Tex.Crim.App.2006) ……………………77
Grffen v. State, 2014 WL 7474076 (Tex. App.—Houston (1st Dist.) 2014)
………...87
E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995)………61
Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999)). ………………….79
Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923)…………………………60
Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996) ................................... 49
Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007) ………………………77 Hartsfield v. State, 305 S.W.3d 859, 863 (Tex.App.-Texarkana 2010) ........................ 6
Hill v. State, 99 S.W.3d 248, 251 (Tex. App.-Fort Worth 2003, pet. ref'd) .............. 33
Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007). ............................................. 7
Jackson v. State, 877 S.W.2d 768 (Tex. Crim. App. 1994). ......................................... 74 Jackson v. State, 482 S.W.2d 864, 868 (Tex.Crim.App 1972)........................................... 30
Johnson v. State, 650 S.W.2d 414, 416 (Tex. Crim. App. 1983) ................................. 50 Johnson v. State, 433 S.W.3d 546 (Tex. Crim. App. 2014) .......................................... 30
vi Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App.1996) ........................................ 6
vi i Klein v. State, 662 S.W.2d 166 (Tex.App.—Corpus Christi 1983, no pet.) .............. 43
Koehler v. State, 679 S.W.2d 6, 9 (Tex. Crim. App.1984) ............................................. 29
Lavern v. State, 48 S.W.3d 356, 360–61 (Tex. App.-Houston [14 Dist.] 2001). ........ 51
Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). .................................... 69
Love v. State, 199 S.W.3d 447, 455 (Tex.App.–Houston [1st Dist.] 2006, pet. ref'd) …………………………………………………………………………………….82 Lewis v. State, 529 S.W.2d 550, 553 (Tex.Crim.App.1975) ………………..……..81
Matchett v. State, 941 S.W.2d 922, 940 (Tex.Crim.App.1996). ................................... 28
Matthews v. State, 708 S.W.2d 835, 837–38 (Tex. Crim. App. 1986) .........................36
McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005) .............................. 20
McKinney v. State, No. 12–03–00155–CR, 2004 WL 1852975, 2004 Tex. App.
LEXIS 7472 (Tex. App.-Tyler August 18, 2004) ……………………………….87
Medina v. State, 411 S.W.3d 15, 21(Tex. App.-Houston [14th
Dist.]2013). .......................................................................................................................... 45
Miranda v. State, 350 S.W.3d 141, 147 (Tex. App.-San Antonio 2011, no
pet.)....................................................................................................................................................... 7
Morales v. State, 357 S.W.3d 1, 7 (Tex.Crim.App.2011) ................................................ 9
Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 712 (Tex. 1997)……………64
Mozon v. State, 991 S.W.2d 841, 845 (Tex. Crim. App. 1999) ................................... 23
Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005) ........................................ 31
vi i Ortiz v. State, 144 S.W.3d 225, 233–34 (Tex. App.–Houston [14th Dist.] 2004, pet.
ref'd) …………………………………………………………………………….78
Pentycuff v. State, 680 S.W.2d 527 (Tex.App.—Waco 1984, pet. ref'd). .................... 50
Pitonyak v. State, 253 S.W.3d 834, 846 (Tex. App.-Austin 2008, pet. ref'd) ……….80 Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003) ................................ 68
Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim App. 1991) ....................................... 6
Semaire v. State, 612 S.W.2d 528, 530 (Tex. Crim. App. 1980) ....................................44 Strickland v. Washington, 466 U.S. 668, 686 (1984)…………………………..……..57
Shaw v. State, 243 S.W.3d 647, 657 (Tex.Crim.App.2007) .......................................... 34 Smith v. State, 355 S.W.3d 138, 145 (Tex.App.-Houston [1st Dist.] 2011)...................7
Smith v. State, 874 S.W.2d 269, 273 (Tex.App.—Houston [14th Dist.] 1994)........................................................................................................................50 Tate v. State, 981 S.W.2d 189, 192–93 & n. 5 (Tex.Crim.App.1998). ....................... 24
Thompson v State, 9 S.W.3d 808, 814(Tex.Crim.App.1999). ....................................... 68
Torres v. State, 71 S.W.3d 758, 760 & n. 4 (Tex. Crim. App. 2002) ............................ 23
Torres v. State, 117 S.W.3d 891, 896–97 (Tex. Crim. App. 2003). .............................. 25
Trevino v. State, 100 S.W.3d 232, 238 (Tex. Crim. App. 2003). ………………….84
Vela v. State, 209 S.W.3d 128, 133 (Tex. Crim. App. 2006) ....................................... 73
Virts v. State, 739 S.W.2d 25 (Tex. Crim. App. 1987). ................................................ 29 Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000) ................................ 54 Wilson v. State, 391 S.W.3d 131 (Tex.App.–Texarkana 2012, .... no pet.) ............... 49 Wiggins v. Smith, 539 U.S. 510 (2003)…………………………………….……….69 viii See Wooten v. State, 400 S.W.3d 601, 608–09 (Tex. Crim. App. 2013)…………83
Yantis v. State, 49 Tex. Crim. 400, 94 S.W. 1019, 1021
(Tex.Crim.App.1906). ...................................................................................................... 24
Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App.2003) ......................................... 7
Rules
TEX. R. APP. P. 9.4 ................................................................................................. 88
Tex. R. Evid. 803(1)………………………………………………………………55 Tex. R. Evid. 702 ……………………………………………………………...…60 Tex R. Evid. 705(c)……………………………………………………………….73
Codes
Tex. Pen. Code Ann. § 9.22(1)……………………………………………………50 Tex. Code Crim. Proc. Ann. art. 36.19 ……………………………………….…53 Tex. Pen. Code § 2.03(a)…………………………………………………………76
TEX. PEN. CODE § 9.02 ……………………………………………………. 76 TEX. PEN. CODE § 2.03(d)……………………………………………………..76
TEX. PEN. CODE § 9.31 ………………………………………..……………76
TEX. PEN. CODE ANN. § 22.05(a) …………………………………………….77
Tex. Code Crim. Proc. Ann. art. 37.09(3) ……………………………………….80
Tex. Penal Code Ann. § 6.03(c) … ………………………………………………81
ix Secondary Sources
Barbara E. Bergman & Nancy Hollander, Wharton's Criminal Evidence § 6:22 (15th ed. 1998 & Supp. 2000)........................................................................................ 49
Judge Harvey Brown Eight Gates for Expert Witnesses, 36 Hous. L. Rev. 743, 744 (1999) .................................................................................................................................... 64
David E. Colmenero, A Dose of Daubert to Alleviate "Junk Science" in Texas Courtrooms: Texas Adopts the Federal Standard for Determining the Admissibility of Scientific Expert Testimony, 27 Tex. Tech L. Rev. 293, 294 (1996)…………….61
Jason G. Duncan, Note, "A Pig's Breakfast": Judicial Gatekeeping for Scientific and Specialized Expert Testimony, 6 Suffolk J. Trial & App. Advoc. 21, 30 (2001).............. 62
Edward J. Imwinkelried, The Next Step After Daubert: Developing a Similarly Epistemological Approach to Ensuring the Reliability of Nonscientific Expert Testimony, 15 Cardozo L. Rev. 2271, 2279 (1994) ............................................................................. 60
Placido G. Gomez, It is Not So Simply Because an Expert Says It’s So: The Reliability of Gang Expert Testimony Regarding Membership in Criminal Street Gangs: Pushing the Limits of Texas Rule of Evidence, 702, 34 St. Mary’s L.J. 581, 605 (2003) ...................................64
Emily L. Baggett, Note, The Standards Applied to the Admission of Soft Science Experts in State Courts, 26 Am. J. Trial Advoc. 149, 156 (2002) ……………………………..62
x Statement of the Case
Offense: (CR 1)
Appellant’s plea to offense: (CR 19) and (RR 13/244)
Trial on Guilt/Innocence: Yes
Finding on Guilt: Yes (RR 18/11) (CR 385)
Trial on Punishment: Yes
Punishment: Life (RR Supp. Vol. 1/38) (CR 401)
Judgment: Judgment conforms to the verdict (RR Supp. Vol. 1/38) (CR
416)
xi Issues Presented
Issue One The State failed to prove that Appellant fired upon and killed Mass in self- defense. Issue Two The trial court erred in limiting Appellant’s ability to elicit testimony establishing the alleged victim, Mass’, gang affiliation and how that evidence demonstrated Appellant’s justified use of deadly force in this case.
Issue Three The trial court erred in limiting Appellant’s cross-examination of State’s witnesses to establish the alleged victim, Mass’, gang affiliation and how that evidence demonstrated Appellant’s justified use of deadly force in this case.
Issue Four The trial court erred in granting the State’s proposed jury instructions negating Appellant’s claim of self-defense.
Issue Five The trial court erred in denying Appellant’s request for a necessity instruction.
Issue Six
The trial court erred in its ruling that Appellant could not elicit testimony from defense witness, Wilmon Davis, that shortly prior to the shooting someone in the mall utter “he might get shot.” Issue Seven Trial counsel rendered ineffective assistance of counsel in failing to challenge whether the State’s gang identification witness was qualified to render an expert opinion that Appellant was affiliated with a gang.
Issue Eight The trial court erred in denying Appellant’s request lesser-included offense jury instructions.
Issue Nine
xii The trial court erred in denying Appellant’s request for inclusion in the punishment charge of a sudden passion instruction.
xii 12-14-00158-CR
IN THE COURT OF APPEALS FOR THE TWELFTH DISTRICTTYLER, TEXAS
RICKY NEAL, JR., Appellant VS.
TO THE HONORABLE COURT OF APPEALS:
Appellant, RICKY NEAL, JR., respectfully submits this brief in the above
styled and numbered cause. This is an appeal of a conviction for the offense of
Murder in the 7th District Court of Smith County, Texas, before the Honorable
Kerry Russell.
References to the Record
References to the Clerk’s Record are designated as “(CR page number)”
References to the Reporter’s Record are designated as “(RR volume number (1-24)
/ page number)”
1 Background
In the Indictment, the State alleged that on or about the 9 th day of February
2013, in Smith County, Texas, Appellant did intentionally or knowingly cause the
death of an individual named Christopher Mass, by shooting Christopher Mass
with a firearm (CR 1). See Article 19.02(b) (1), TEX. PEN. CODE. The
Indictment further alleged that Appellant also did then and there, with the
intent to cause serious bodily injury to an individual, namely, Christopher Mass,
commit an act clearly dangerous to human life that caused the death of Mass, by
shooting him with a firearm. Id. Finally, the Indictment charged that Appellant used
or exhibited a deadly weapon, a firearm, during the commission of the above
offense. Id. This offense is a first-degree felony and is punishable by
imprisonment in the Institutional Division of the Texas Department of Criminal
Justice for life or for any term of not more than 99 years or less than 5 years in the
Texas Department of Criminal Justice and a fine not to exceed $10,000.00. See
TEX. PEN. CODE § 12.32. Appellant plead not guilty (CR 19) and (RR
13/244). After hearing the evidence, the jury nevertheless found
Appellant guilty (RR 18/11). The jury later returned a punishment verdict of
confinement in the Texas Department of Criminal Justice, Institutional Division for
life (RR 22/166). Based upon the jury’s verdict, the trial court thereafter sentenced
Appellant to life term of confinement in the Texas Department of Criminal Justice,
2 Institutional Division (RR 23/9).
Statement of Facts
On February 9, 2013, Appellant called 911 and reported h e shot
Christopher Mass in the parking lot of the Broadway Square Mall in Tyler, Texas
(RR 16/275) and (State’s Exhibit 63). After arrest, Mr. Neal provided Tyler
Police with a recorded statement admitting that he shot Mass, but that he did so in
self-defense (RR 16/243). Appellant told officers that went to the mall that
morning because it was the release date for a new Air Jordan show (State’s Exhibit
63). Upon entering the mall, Appellant walked over the Chick-Fil-A restaurant to
talk with an acquaintance, Jimmy Whitt. He then became involved in a verbal
dispute with a subject he knew only as Dews (“Jonathan Dews”). Id.
Apparently back when Dews was in prison, Appellant had a conversation with
his wife about whether she would stay married to him after his release (RR
14/36). Although Appellant tried to deescalate the situation, Dews insisted he wanted
to fight him (RR 16/243). Appellant told police that as he exited the mall, he noticed
who he later would learn was Mass standing in front of Champs sporting goods (RR
16/243). As Appellant continued out the door he stopped to speak to the manager
of Champs, Kenesha Mayfield, and told her that there were some guys “trippin”
and that he was going outside to send his girlfriend, Tamara Norris, who was
waiting outside in the car in to pay for the shoes. Id.
3 As Neal approached his girlfriend’s vehicle he told her that some guys were
in the mall “trippin” and asked her to go in and pay for the shoes (RR 15/89 and
92). Appellant then walked from the driver’s side of the vehicle to the back right
door and check on his belongings in the backseat. Id. As he did so, Appellant
noticed that Mass standing near an adjacent green Buick vehicle that was parked
right next to his girlfriend’s blue Ford Fiesta vehicle. Id. Appellant also noticed that
Dews was standing close to him. Id.
Appellant then saw Mass open the door of the green Buick and put is
sweatshirt in it (RR 15/59). Appellant believed that Mass reached into the vehicle
to retrieve a weapon and so he retrieved his .40 caliber semi-automatic pistol from
inside a black bag in the Fiesta (RR 16/235). Mass then began to walk toward the
rear of the Buick and Appellant overheard Dews state that he was a “gangster”
(State’s Exhibit 63). Appellant believed at that moment that his life was in danger
and he shot and killed Mass in self-defense and fired a shot in the direction of
Dews. Id.
Summary of Arguments
In his first issue, Appellant contends the State failed to prove that Appellant
did not fire upon and kill Mass in self-defense. In his second issue, Appellant
maintains the trial court erred in limiting Appellant’s ability to elicit testimony
4 establishing the alleged victim, Moss’, gang affiliation and how that evidence
demonstrated his justified use of deadly force in this case.
Appellant maintains in his third issue that the trial court erred in limiting
Appellant’s cross-examination of State’s witnesses to establish the alleged victim,
Moss’, gang affiliation and how that evidence demonstrated his justified use of
deadly force in this case.
In his fourth claim, Appellant argues that the trial court erred in granting the
State’s proposed jury instructions negating Appellant’s claim of self-defense.
Appellant submits in his fifth claim that the trial court erred in denying Appellant’s
request for a necessity instruction.
In his sixth claim, Appellant maintains that the trial court erred in its ruling
that Appellant could not elicit testimony from defense witness, Wilmon Davis, that
shortly prior to the shooting someone in the mall utter “he might get shot.” In his
seventh claim, Appellant argues that trial counsel rendered ineffective assistance of
counsel in failing to challenge whether the State’s gang identification witness was
qualified to render an expert opinion that Appellant was affiliated with a gang. In
his final claim, Appellant argues [Possible Punishment Charge Error] TBD.
Issue Number 1
The State failed to prove that Appellant fired upon and killed Mass in self- defense.
5 Standard of Review-Sufficiency of Evidence
When reviewing a sufficiency challenge on the issue of self-defense, this Court
views the evidence in the light most favorable to the verdict to see if any rational
trier of fact could have found (1) the essential elements of murder beyond a
reasonable doubt, and (2) against appellant on the self-defense issue beyond a
reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim App. 1991).
The jury is the exclusive judge of the credibility of the witnesses and of the
weight to be given to their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex.
Crim. App.1996). Reconciliation of conflicts in the evidence is within the exclusive
province of the jury. Id. The Court resolves any inconsistencies in the testimony in
favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
Argument
Appellant challenges both the sufficiency of the evidence to support the essential
elements of the charged offense—murder and whether a rational fact finder could
have found beyond a reasonable doubt against him on the self-defenseissue.
In evaluating sufficiency of the evidence under the Jackson standard, we review
all the evidence in the light most favorable to the trial court's judgment to
determine whether any rational jury could have found the essential elements of
murder beyond a reasonable doubt. Brooks’ v. State, 323 S.W.3d 893, 912
6 (Tex.Crim.App.2010) (referring to Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex.App.-
Texarkana 2010, pet. ref'd) (citing Clayton v. State, 235 S.W.3d 772, 778
(Tex.Crim.App.2007). Because the State carries the burden of persuasion to
disprove self-defense beyond a reasonable doubt, we review a challenge to the
sufficiency of the evidence supporting a jury's rejection of a claim of self-defense
under the Jackson standard. See Brooks, 323 S.W.3d at 912; Smith v. State, 355 S.W.3d
138, 145 (Tex.App.-Houston [1st Dist.] 2011, pet. ref'd); see also Miranda v. State, 350
S.W.3d 141, 147 (Tex.App.-San Antonio 2011, no pet.).3 We examine legal
sufficiency under the direction of the Brooks opinion while giving deference to the
responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.”
Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007) (citing Jackson, 443 U.S. At
318–19); see Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
A person is justified in using deadly 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 deadly force.” Tex.
Penal Code Ann. § 9.32(a) (2) (A) (West 2011). “Deadly force” is force “intended or
known by the actor to cause, or in the manner of its use or intended use is capable
of causing, death or serious bodily injury.” Id. § 9.01(3).
7 There, as here, there is a claim of self-defense that is rejected by the jury, this
Court must consider all the evidence in the light most favorable to the verdict and
determine whether, based on the evidence and reasonable inferences therefrom, a rational
fact-finder could have found beyond a reasonable doubt (1) the essential elements of
the offense and (2) against the appellant on the self-defense issue. Darkins v. State, 430
S.W.3d 559, 565 (Tex. App.-Houston [14th Dist.] 2014, pet. ref ‘d) (citing Saxton, 804
S.W.2d at 913). Because self-defense is an issue of fact to be determined by the jury,
the jury is free to accept or reject the defensive issue. Medina v. State, 411 S.W.3d 15,
21 (Tex. App.-Houston [14th Dist.] 2013, no pet.) (citing Saxton, 804 S.W.2d at 913–
14). A jury's guilty verdict is an implicit rejection of the appellant's self-defense claim.
Saxton, 804 S.W.2d at 9 14 .
A. Legal Sufficiency—Murder
A person commits murder if he intentionally or knowingly causes the death
of an individual or if he intends to cause serious bodily injury and commits an act
clearly dangerous to human life that causes the death of an individual. Tex. Penal
Code Ann. § 19.02(b) (1), (b) (2) (West 2011). However, under certain circumstances,
self-defense justifies the use of deadly force. Morales v. State, 357 S.W.3d 1, 7 (Tex.
Crim. App. 2011). As relevant here, a person is justified in using deadly force
against another (1) if he would be justified in using force against the other under
section 9.31 of the penal code, and (2) when and to the degree he reasonably
8 believes the deadly force is immediately necessary to protect himself against the
other's use or attempted use of unlawful deadly force. Tex. Penal Code Ann. §
9.32(a) (1) and (a) (2) (A) (West 2011). As relevant to this case, section 9.31 of the
penal code justifies force “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.” Id. § 9.31(a) (West 2011).
Appellant had no motive or state of mind to attack and kill Mass based on
the evidence presented to the jury. Although he did possess and used a firearm
to shoot Mass 3 times, he had no intent to cause the death or serious bodily injury.
Appellant admitted to police that when he shot, he had no intention of killing
Mass (RR 16/241). Appellant’s voluntary statement reasons he shot Mass because
he feared for his life. Id.
B. Legal Sufficiency of Evidence of Self Defense
The initial burden to produce evidence supporting self-defense rests with the
defendant. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App.2003); Saxton v. State,
804 S.W.2d 910, 913 (Tex. Crim. App. 1991). Once the defendant produces some
evidence, the State bears the ultimate burden of persuasion to disprove the raised
defense. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913–14. This burden of
persuasion does not require that the State to produce evidence, but it does require
that the State prove its case beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594;
9 Saxton, 804 S.W.2d at 913. The issue of self-defense is a fact issue to be determined
by the jury, which is free to accept or reject any defensive evidence on the issue.
Saxton, 804 S.W.2d at 913–14. If the jury finds the defendant guilty, then it
implicitly finds against the defensive theory. Id. at 914.
In reviewing the legal sufficiency of the evidence to support the fact finder's
rejection of a defensive issue, “we look not to whether the State presented evidence
which refuted appellant's 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 murder beyond a
reasonable doubt and also would have found against appellant on the self-defense
issue beyond a reasonable doubt.” Id. at 914; see also Kirk, 421 S.W.3d at 777. The
evidence the jury heard in this case was factually insufficient evidence to reject
Appellant’s self-defense claim. The jury heard evidence that at the time Appellant
shot Mass, he feared for his life. See, e.g., Saxton, 804 S.W.2d at 914.
C. Relevant Evidence from the Trial
Under Texas law of self-defense, a defendant's conduct is excused if h e formed
a reasonable belief that deadly force was immediately necessary to protect himself or
a third party from another use or attempted use of unlawful deadly force. See TEX.
PENAL CODE, § 9.32. The reasonableness of the belief is measured by the
objective standard of an “ordinary and prudent man.” See, TEX. PENAL CODE § 10 1.07(42); see also' Davis v. State, 104.W.3d 177, 181 (Tex.App.- Waco 2003, no
pet.)(“Although the jury employs an objective standard to determine the
reasonableness of the defendant's belief, it must view the facts from the defendant's
perspective.”). Accordingly, Appellant is entitled to acquittal if a person in his
position reasonably believed the deadly force was immediately necessary to protect
himself or another against the Dews’ and Mass’ use or attempted use of unlawful
deadly force. TEX. PENAL CODE §§ 9.32, 9.33.
“Deadly force” means force that is intended or known by the actor to cause,
or in the manner of its use or intended use is capable of causing, death or serious
bodily injury. TEX. PENAL CODE § 9.01(3). “Reasonable belief means a belief
that would be held by an ordinary and prudent man in the same circumstances as
the actor. TEX. PENAL CODE § 1.07(a) (42).
“The greater weight and preponderance of the credible evidence herein
shows that [Neal] acted in self-defense from the apparent danger created by the
attack of multiple assailants …, so that it is manifestly unjust” that he was convicted
of murder. The jury's verdict to the contrary is, therefore, against the great weight
of the evidence. Appellant was entitled to a verdict of not guilty as his acts were
clearly in the defense of himself.
The State presented no evidence by which a rational finder of fact could find
Appellant's use of deadly force to be unjustified, as Appellant was acting to defend
himself. Appellant did not initially possess a deadly weapon and instead retrieved 11 his firearm from inside the vehicle only after he was confronted by Mass and Dewsin
the parking lot. See, supra. Assuming arguendo that the State brought sufficient
evidence that Appellant possessed a deadly weapon, the State brought no evidence
that Appellant would not have sufficient justification for arming himself with the
firearm. It was not disputed that Mass and Dews were both large men (RR 16/287),
that they pursued Appellant outside of the mall in order to fight him (RR 14/44),
and that they were the aggressors in this exchange.
Consequently, the jury's rejection of his justification of self-defense and the
jury's subsequent verdict was not rational. Accordingly, this Court should, as it
must, enter an order reversing the judgment entered in the court below and
thereafter enter a judgment of acquittal.
Therefore, the evidence is legally insufficient to support Appellant's
conviction for murder because there was sufficient evidence that the Appellant
acted in self-defense. It was only through speculation that the jury could have
found beyond a reasonable doubt that Appellant did not reasonably believe the
force he used against Mass was necessary to defend himself. Such speculation does
not equate with beyond a reasonable doubt and cannot stand. No rational finder of
fact could have found beyond a reasonable doubt that Appellant was not
defending himself. For these reasons, Appellant's conviction of murder must be
reversed and reformed to show an acquittal. Burks v. United States, 437 U.S. 1, 98
12 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57
L.Ed.2d 15 (1978). Issue Number 2
The trial court erred in limiting Appellant’s ability to elicit testimony establishing the alleged victim, Mass’, gang affiliation and how that evidence demonstrated Appellant’s justified use of deadly force in this case. Standard of Review
The trial court's decision to exclude 404(b) evidence is reviewed by this
Court for an abuse of discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex.
Crim. App. 2005).
The trial court erred in limiting Appellant’s ability to elicit testimony
establishing the alleged victim, Mass’, gang affiliation and how that evidence
demonstrated his justified use of deadly force in this case. Prior to the start of the
State’s case, Appellant requested that the trial court admit evidence that the alleged
victim, Christopher Mass, was as suspected member of the violent street gang known
as the West Side Crips (RR 13/290) (this information was provided to Appellant in a
communication to defense counsel from the State’s gang expert, Tyler Police
Detective Chris Miller) (RR13/10 and 287).
Based on that letter and based on my conversation with Detective Miller, I believe that there is strong evidence that Chris Miller -- excuse me -- Chris Mass, the deceased, was an active member of the West Side Rolling Crips, a gang here in Tyler …
13 Id.
Appellant argued that this evidence was relevant to show Mass’ reputation has a
“thug” and to establish his intent at the time of the shooting (RR 13/288). The
State’s position was that because Appellant did not know Mass, he had no
knowledge of his violent character prior to the shooting (RR13/290). The State
added that Mass’ gang affiliation would not be admissible because there was no
evidence to suggest that he was the “first aggressor.” Id.
The trial court sided with the State noting that the gang evidence was not
admissible because there was no evidence adduced pretrial to suggest Appellant
knew Mass (RR 14/11). The court added that although there was a very narrow
exception in the law for admissibly of such evidence when the defendant and victim
do not know each other, the facts proffered by the parties to that point did not
suggest this case fell into that exception. Id.
On cross-examination, Jonathon Dews testified that he knew Mass “through
friends” (RR 14/97). When defense counsel attempted to expand upon this point
to establish that these “friends” he knew Mass through were members of the West
Side Crips the State objected citing the motion in limine and the court’s prior
ruling (RR 14/97-98). The court sustained the State’s objection and excluded
Appellant from exploring this area further (RR 14/98).
Appellant again attempted to elicit similar evidence of Mass’ gang
14 affiliation through the testimony of Jimmy Whitt (RR 15/4). Whitt testified that he
knew Mass “from the streets.” Id. The State immediately objected that this line of
questioning opened the door to character evidence concerning Mass’ gang
membership (RR 15/4-5). Again, Appellant was forced to abandon this line of
questioning due the trial court’s ruling in limine Id. (the trial court granted the
State’s motion in limine and excluded any gang evidence until, and if, that evidence
became relevant) (RR 13/6).
Whitt also testified that he knew another State witness and friend of Mass,
Quintin Smith, from “in the streets” (RR 15/22). Defense counsel later asked
Quintin Smith how he knew Mass and Smith said he knew him from “being out,
clubs, stuff like that” (RR 15/65). The State again immediately objected citing that
this line of questioning also invited violation of their motion in limine concerning
Mass’ gang membership. Id.
Defense counsel responded that when these witnesses continue to respond that
they know Mass from “on the street”, this sort of testimony opened the door to
further inquiry (RR 15/66). Although the trial court allowed Appellant to inquire
further, the court’s limitation with respect to specific evidence of Mass’ gang
membership greatly hampered the defense. Id.
Although Appellant did not know Mass and was unaware of his character for
violence, he was nevertheless entitled to offer evidence of Mass’ gang affiliation
15 because it justified has shooting in self-defense. A defendant claiming self-defense
in a homicide prosecution may introduce evidence of a deceased's violent character
to show the reasonableness of his/her fear of danger or to show the deceased was
the first aggressor. Torres v. State, 71 S.W.3d 758, 761 (Tex. Crim. App. 2002). The
evidence must be admitted through opinion or reputation testimony. Tex. R. Evid.
405(a). The Court of Criminal Appeals in Mozon v. State, 991 S.W.2d 841 (Tex.
Crim. App. 1999) established what a defendant must prove: (1) to show
Defendant's perception of danger was reasonable requires a showing of being
aware of the deceased's violent character; or (2) to show the deceased was the first
aggressor does not require a showing of Defendant having personal knowledge of
the deceased's violent character. Id. at 845. Further, the specific bad acts need not
be addressed to or known by the defendant in order to be admissible, if they have a
purpose apart from character conformity. Torres v. State. 71 S.W.3d 758 (Tex.
Crim. App. 2002).
Moreover, in Ex parte Miller, the Court of Criminal Appeals clarified that
evidence of a deceased's reputation for violence is relevant to the Defendant's state
of mind. Ex parte Miller, 330 S.W.3d 610 (Tex. Crim. App. 2009). The Court of
Criminal Appeals called the evidence as “communicated character” because the
Defendant is aware of the deceased's “violent tendencies and perceives a danger
posed by the victim, regardless of whether the danger is real or not.” Id. at 618.
16 Here, the Appellant was not trying to prove that the deceased was violent; rather,
he was attempting to prove his self-defense state of mind and the reasonableness of
the state of mind. The evidence of gang affiliation could lead a jury to conclude
that Appellant’s use of force was reasonable because he had reason to believe the
deceased would attempt an unlawful deadly force.
Appellant sought to introduce evidence that Mass was a member of the West
Side Crips for the non-character purpose of establishing his specific intent or
motive to attack Appellant. See Christopher B. Mueller & Laird Kirkpatrick, Federal
Evidence § 103, at 569–70 (2d ed.1994).
In describing the analogous federal rules, the professor’s state, Proof of specific acts of violence by the victim toward the defendant is often admissible to show hostility, plan, intent to inflict harm, and similar matters. Here the argument is not so much that the acts show character, hence conduct in conformity with character, but rather that the acts shed direct light on more particular aspects of the victim's outlook or state of mind toward the defendant, and the proof is admissible under FRE 404(b).
Id. Such extraneous offense evidence is admissible under Texas Rule of
Evidence 404(b). See, e.g., Torres v. State, 117 S.W.3d 891, 896–97 (Tex. Crim. App.
2003) (defendant was entitled to offer evidence that, several days before the
murder, the victim had climbed through his ex-girlfriend's aunt's window and
threatened her and her children; this evidence was relevant to show that the
deceased had a specific motive or intent to be the first aggressor when he climbed
17 through his ex- girlfriend's bedroom window early one morning and the defendant
shot him).
Appellant attempted to establish that the fact Mass was a Crip was probative,
specifically with regard to his (Mass’) violent and aggressive state of mind toward
Appellant on the day of the shooting. See Torres, 71 S.W.3d at 762 (“For purposes
of proving that the deceased was the first aggressor, the key is that the proffered
evidence explains the deceased's conduct.”). Such evidence would have justified
Appellant’s self-defense theory.
Although Rule 404(b) prohibits the admissibility of gang affiliation evidence
to show that a person acted in conformity therewith, such evidence is admissible for
other purposes, such as proof of motive, intent, or identity. Tex. R. Evid. 404(b); see
also Williams v. State, 974 S.W.2d 324, 331 (Tex. App.-San Antonio 1998, pet. ref'd.)
(finding that evidence of defendant's gang affiliation was admissible to prove
motive).
The trial court’s ruling that Appellant was not permitted to even hint at
Mass’ gang membership impeded his ability to justify the shooting in this case as
self- defense. This error by the court was and abuse of discretion that harmed
Appellant and requires reversal in this case.
Issue Number 3
18 The trial court erred in limiting Appellant’s cross-examination of State’s witnesses to establish the alleged victim, Mass’, gang affiliation and how that evidence demonstrated Appellant’s justified use of deadly force in this case. Standard of Review
The trial court's decision to limit cross-examination is reviewed by the Court
under an abuse of discretion standard. See Matchett v. State, 941 S.W.2d 922, 940
(Tex. Crim. App.1996). Argument
The trial court erred in limiting Appellant’s cross-examination of State’s
witnesses to establish the alleged victim, Mass’, gang affiliation and how that
evidence demonstrated his justified use of deadly force in this case. Prior to the start
of the State’s case, Appellant requested that the trial court admit evidence that the
alleged victim, Christopher Mass, was as suspected member of the violent street
gang known as the West Side Crips (RR 13/290) (this information was provided to
Appellant in a letter written by the State’s gang expert, Tyler Police Detective
Chris Miller) (RR13/10 and 287). The trial court granted the State’s motion in
limine to exclude such evidence (RR 14/11).
The trial court repeatedly prevented Appellant from cross-examining the
State’s witnesses concerning their possible ties to a violent street gang. On cross-
examination, Jonathon Dews testified that he knew Mass “through friends” (RR
14/97). When defense counsel attempted to expand upon this point to establish
that these “friends” he knew Mass through were members of the West Side Crips
19 the State objected citing the motion in limine and the court’s prior ruling (RR
14/97-98). The court sustained the State’s objection and excluded Appellant from
exploring this area further (RR 14/98).
Later in his cross-examination of Mr. Dews, defense counsel attempted to
elicit testimony that on the day of the shooting the waistline on Mass pants was
down so low that his undershorts were hanging out making him look “like a violent
thug” (RR 14/119). The court sustained the State’s objection as to the relevancy of
this testimony. Id. Appellant objected that the trial court’s ruling was a limitation
on his confrontation rights under the 6th Amendment. Id.
The Sixth Amendment should be liberally construed to give appropriate
constitutional protection to the defendant. Chew v. State, 804 S.W.2d 633, 635 (Tex.
App.-San Antonio 1991, pet. ref'd)). Accordingly, the Court of Criminal Appeals
has emphasized that the right to cross-examination “includes the right to impeach
the witness with relevant evidence that might reflect bias, interest, prejudice,
inconsistent statements, traits of character affecting credibility, or evidence that
might go to any impairment or disability affecting the witness's credibility.” Virts v.
State, 739 S.W.2d 25, 29 (Tex. Crim. App. 1987). Moreover, any question asked of a
witness on cross-examination, which might have a tendency to show the witness'
credibility, is always a proper question. Koehler v. State, 679 S.W.2d 6, 9 (Tex. Crim.
App.1984). Thus, the proper scope of cross-examination includes “all facts and
20 circumstances which, when tested by human experience, tend to show that a
witness may shade his testimony for the purpose of helping to establish one side of
the cause only.” Id. (citing Jackson v. State, 482 S.W.2d 864, 868 (Tex. Crim.
App.1972)).
Although it is true that as it pertains to the Confrontation Clause, “trial
judges retain wide latitude ... to impose reasonable limits on such cross-
examination based on concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness' safety, or interrogation that is repetitive or only
marginally relevant”, such limitations cannot go so far as to drastically curtail a
defendant’s cross-examination. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
In the present case, the trial court’s repeated limitation of Appellant’s ability
to explore Mass’ gang ties drastically curtailed his cross-examination as to leave
him “unable to make a record from which to argue why [the witness] might have
been biased or otherwise lacked that degree of impartiality expected of a witness at
trial.” See Davis v. Alaska, 415 U.S. 308, 318 (1973); see also Johnson v. State, 433
S.W.3d 546 (Tex. Crim. App. 2014). The trial court’s limitation on Appellant’s
cross-examination on this subject greatly limited his ability to establish his self-
defense claim. If permitted to explore such indicators of street gang affiliation,
Appellant would have been able to leave the jury with a “significantly different
impression of [the witness's] credibility” Id. The trial court’s error in this respect was
an abuse of discretion and necessitates the reversal of Appellant’s conviction. 21 Issue Number 4
The trial court erred in granting the State’s proposed jury instructions negating Appellant’s claim of self-defense.
Standard of Review—Jury Instruction Error
This Court reviews jury charge error in a two-step process. Ngo v. State, 175
S.W.3d 738, 744 (Tex. Crim. App. 2005). First, to determine whether error exists in
the charge. Id. If it does, then to review the record to determine whether
sufficient harm was caused by the error to require reversal of the conviction. Id.
When, as in this case, the Appellant properly objected to the error in the jury
charge, reversal is required unless the error was harmless. Id. at 743.
At the close of the evidence in the guilt/innocence trial, the court conducted a
charge conference to discuss the proposed jury charge (RR 17/149) (CR 334)
(Court’s proposed jury charge). Both the State and defense counsel filed proposed
jury charges for the trial court’s consideration (CR 347) (State’s proposed jury
charge) and (CR 352-72) (Defendant’s proposed jury charge).
Appellant’s proposed jury charge stated in part as follows:
If you have a reasonable doubt as to self-defense, you must acquit the Defendant and say by your verdict, “Not Guilty.” Under our law, a person is justified in using force against another wen and to the degree that he reasonably believes the force is immediately necessary to 22 protect himself against the other’s use or attempted use of unlawful force. … A person is justified in using deadly force against another if he would be justified in using force against the other in the first place, and when he reasonable believes that such deadly force is immediately necessary to protect himself against the other person’s use or attempted use of unlawful deadly force.
… When a person is attacked with unlawful deadly force, or he reasonably believes he is under attack or attempted attack with unlawful deadly force by one or more persons, and this is created in the mind of such person a reasonable expectation or fear of death or serious bodily injury to himself at the hands of such attacker or attackers, then the law excuses or justifies such person in resorting to deadly force by any means at his command to the degree that he reasonably believes immediately necessary, viewed from his standpoint at the time, to protect himself from such attack or attempted attack. It is not necessary that there be an actual attack or actual attempted attack, as a person has a right to defend his life from apparent danger as fully and to the same extent as he would had the danger been real, provided that he acted upon a reasonable apprehension of danger, as it appeared to him from his standpoint at the time, and that he reasonably believed such deadly force was immediately necessary to protect himself against the attacker’s, or attackers’ [sic], use or attempted use of actual or apparent unlawful deadly force. A person who has a right to use deadly force to defend himself against one alleged attacker also has a right to use deadly force to defend himself against a second or subsequent perceived attacker who is with the first attacker if he reasonably believes that he is in immediate danger of death or serious bodily injury at the hands of either the firstor the second or subsequent attacker . (CR 363-64)
The State’s proposed charge requested that the court instruct the jury that
under Texas Penal Code § 9.31:
(b) The use of force against another is not justified: … (3) if the actor 23 consented to the exact force used or attempted by the other; (4) if the actor provoked the other's use or attempted use of unlawful force,
24 unless: (A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and (B) the other nevertheless continues or attempts to use unlawful force against the actor; or (5) if the actor sought an explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was: (A) carrying a weapon in violation of Section 46.02; or (B) possessing or transporting a weapon in violation of Section 46.05.
Tex. Penal Code Ann. § 9.31 (West 2012).
The State essentially argued that Appellant was not entitled to raise a self-
defense or multiple assailants claim if he: 1) consented to the exact force used or
attempted by the other; 2) provoked the other's use or attempted use of
unlawful force; or 3) sought an explanation from or discussion with the other
person concerning the actor's differences with the other person while Appellant
was either carrying a weapon in violation of Section 46.02; or possessing or
transporting a weapon in violation of Section 46.05. (RR 17/169).
Defense counsel objected to the State’s proposed charge because it
essentially negated the self-defense and multiple assailant instructions previously
approved by the trial court (RR 17/172) (“it would be improper to have a
counter instruction … in the jury charge that, essentially eliminates Mr. Neal’s
right to self-defense … protection under the circumstances of this case”). Id.
25 The trial court overruled Appellant’s objection and included the
following instructions in the jury charge:
The use of force against another is not justified … (3) if the actor provoked the other’s use or attempted use of unlawful force; or (4) if the actor sought an explanation from or discussion with the other person concerning the actor’s differences with the other person while the actor was unlawfully carrying a handgun.
(CR 335) (emphasis added).
Although the trial court included a self-defense and multiple assailants
instruction in the final charge (CR 335-36), the inclusion of the additional
instruction quoted supra essentially negated Appellant’s affirmative defenses and
thereby cancelled-out the self-defense and multiple assailants’ instructions.
The evidence presented at trial in this case in no way, shape or form
suggested that Appellant sought an explanation or discussion with Mass
and/or Dews at the time he armed himself with a firearm. To the contrary, the
evidence is undisputed that Mass and Dews followed Appellant outside the
mall and that they confronted him in the parking lot just prior to
Appellant retrieving his firearm from the backseat of his girlfriend’s vehicle.
The same holds true with respect the absence of any provocation of Mass and
Dews by Appellant.
26 A defendant is entitled to an instruction on self-defense if the issue is raised
by the evidence, whether that evidence is strong or weak, un-impeached or
contradicted, and regardless of what the trial court may think about the credibility
of the defense.” Gaspar, 327 S.W.3d 349, 356 (Tex. App.—Texarkana 2010, no
pet.) (citing Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001). There must
be some evidence, when viewed in the light most favorable to the defendant, will
support the claim. Id. (citing Ferrel, 55 S.W.3d at 591; Hill v. State, 99 S.W.3d 248,
251 (Tex. App.-Fort Worth 2003, pet. ref'd)). “[A] defense is supported (or raised)
by the evidence if there is some evidence, from any source, on each element of the
defense that, if believed by the jury, would support a rational inference that that
element is true.” Id. (quoting Shaw v. State, 243 S.W.3d 647, 657 (Tex. Crim. App.
2007)).
Appellant cited Barrios v. State, 389 S.W.3d 382 (Tex. App.—Texarkana 2012)
in support of his claim that his alleged unlawful possession of a firearm did not
negate his justified use of force in this case. In Barrios, the defendant objected that
the trial court erred in failing to submit a self-defense instruction. Id. at 393. The
State argued that the facts did not support a self-defense instruction because
Barrios was engaged in other criminal activity as defined under § 9.31(a) (3), namely
violation of the federal law concerning possession of a firearm by an illegal
27 immigrant. Id. The Texarkana Court of Appeals ultimately held that § 9.31(a) (3) of
the Texas Penal Code did not encompass “other criminal activity” to include a
violation of a federal criminal code. Id. The court ultimately held that Barrios was
not entitled a self-defense instruction because he failed to offer any proof that he
feared for his own safety. Id. at 394.
The court also noted, however, that had Barrios presented sufficient proof of
fear, the simple fact he was also engaged in other criminal activity at the time of the
shooting would not have negated his right to a self-defense instruction. Id. at 393.
Instead, such a finding of engagement in other criminal activity would have simply
removed the presumption that his actions were reasonable under § 9.31. Id. Stated
otherwise, Barrios would have been entitled to the self-defense instruction but
would have also had the burden of proving his actions were reasonable.
In the present case, defense counsel argued that the reasoning in Barrios did
not negate Appellant’s right to claim self-defense if it was proven to the jury that he
unlawfully possessed a firearm. Counsel argued that Barrios did not negate self-
defense, but that it simply took away a defendant’s presumption of reasonableness.
While defense counsel was correct in this respect, Barrios also notes that
“commission of a crime under Section 9.31(a) (3) removes the presumption of
reasonableness, whereas commission of acts under Section 9.31(b) renders the use
of force against another unjustified.” Barrios, 389 S.W.3d at 394. The court in the 28 present case nevertheless wrongly construed Barrios as supporting the proposed
instruction and as a consequence negating Appellant’s self-defense claim.
The court noted that Barrios was accused a carrying a shotgun while outside
of his vehicle and that this act by Barrios did not trigger any “illegality” under the
law (RR 17/176) (“concealed handgun weapons, though, make a completely
different event; and that’s what we’re dealing with in this case. That this person
[Barrios] was brandishing a shotgun at the event in question, there’s no unlawful
carrying of a weapon charge that could be made”). Id. The trial court presumed
that since there was no argument raised in Barrios concerning the unlawful carrying
of firearm under § 9.31(b) (5) (A), and no other authority on point presented by the
parties, that the State’s proposed instruction was appropriate (RR 17/176).
The court, however, failed to consider the fact that the instruction under §
9.31(b) (5) (A) requires that for self-defense to be “unjustified”, the actor must have
“sought an explanation from or discussion with the other person concerning the
actor’s differences with the other person while the actor was unlawfully
carrying a handgun. (CR 335) (emphasis added). Nothing in the trial record
even remotely suggests that at the time Appellant retrieved his firearm from the
rear of his girlfriend’s vehicle that he sought an explanation or discussion from
either Mass or Dews (RR 17/184-85)
29 You Honor, I object to this because the facts and evidence that were presented from the witnesses, particularly Detective Shine, indicate that the Defendant never sought a meeting with Mr. Mass, ever; that he never had a conversation with Mr. Mass; and that he never met or know Mr. Mass before the shooting.
Id.
As a consequence, the court’s instruction had no place in the charge.
A charge on provoking the difficulty is properly given when: (1) self-defense is an
issue; (2) there are facts in evidence which show that the deceased made the first
attack on the defendant; and (3) the defendant did something intended and
calculated to bring on the difficulty in order to have a pretext for self-defense. See
Matthews v. State, 708 S.W.2d 835, 837–38 (Tex. Crim. App. 1986).
In Bumguardner v. State, 963 S.W.2d 171, 175 (Tex. App. 1998), Bumguardner
was charged with murder for shooting a man, Hinton, who was seeing his wife. Id.
at 172. The evidence established that on the day of the shooting, a witness
overheard Bumguardner say he was going to kill Hinton. Id. at 175. That same
witness also testified that on the night prior to the shooting, Bumguardner admitted
to her that he had been looking for Hinton and his wife while he was carrying a
gun. Id. On the day of the shooting, Bumguardner confronted his wife and Hinton
in a convenience store and had words with them. Id. The court concluded that this
established that Bumguardner and Hinton “had differences with each other.” Id.
Bumguardner testified that he packed a gun and went to a nightclub to look for his 30 wife. As Bumguardner exited the bar and walked toward his truck he confronted
Hinton. Id. (“Bumguardner was upset and angry and words were exchanged …
[he] demanded to know where his wife was”). The court ultimately concluded that
the § 9.31(b) (5) (A) instruction was justified by the facts of the case because:
Evidence exists which shows that Bumguardner had differences with Hinton. Bumguardner's demand to know where Sheila was and yelling at Hinton tends to show that he sought an explanation or discussion with Hinton while unlawfully carrying a gun. Therefore, this evidence raises the issue that Bumguardner sought an explanation from Hinton and the court properly submitted this instruction to the jury.
Id. at 176 (emphasis added).
While the facts set forth in the Bumguardner opinion justified the court’s
instruction, the facts in the present case simply do not. In this case, there was no
evidence in the record to suggest that Appellant carried his firearm on his person at
the time he had his verbal confrontation with Dews and while in the presence of
Mass.
Also problematic about the court’s charge is the fact that there was no
evidence establishing that Appellant unlawfully carried a firearm at the time he
retrieved it from the back of his girlfriend’s vehicle. Section 46.02 of the Texas
Penal Code provides that:
A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not: (1) on the person's own premises or premises under the person's control; or (2) inside of or directly en route to a motor 31 vehicle or watercraft that is owned by the person or under the person's control. (a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or under the person's control at any time in which: (1) the handgun is in plain view; or (2) the person is: (A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating; (B) prohibited by law from possessing a firearm; or (C) a member of a criminal street gang, as defined by Section 71.01.
Tex. Penal Code Ann. § 46.02 (West).
Appellant was not a convicted felon at the time he retrieved the firearm from the
vehicle. At the time Appellant retrieved the firearm, he was acting in self-defense
and was therefore not acting in violation of any criminal activity. Prior to the
shooting, Appellant retrieved the firearm from his bag in the back floorboard of his
girlfriend’s vehicle. Therefore the firearm was not in plain view inside the vehicle.
At the time shooting, Appellant’s girlfriend was on her way into the mall to
purchase Appellant’s shoes. Accordingly, her vehicle was under Appellant’s care
and control. According to Detective Miller, Appellant was not a member of any
known street gang. Consequently, there was no evidence offered at trial to support a
finding that Appellant unlawfully carried a weapon. The court made no actual
finding as to why Appellant was prohibited from possessing a firearm. The court
therefore erred in allowing the § 9.41(b) (5) (A) jury instruction to go before the jury.
The trial court’s error in allowing this instruction to go before jury had an
undeniable harmful impact upon the verdict in this case. There can be no dispute 32 the trial court’s ruling to allow such an unsubstantiated charge to go before the jury
was devastating to Appellant’s self-defense case. As written, the instruction
altogether negated his justification for the shooting. See Ngo, 175 S.W.3d at 744
(noting that to jury charge error exists if there was sufficient harm was caused by
the error to require reversal of the conviction).
It would be hard to envision a situation where Appellant suffered more harm
by the court's undoing of the self-defense and multiple assailants instructions.Defense
counsel extensively voir dired the jury on this issue and this was these were the sole
defensive issues raised at trial. By denying Appellant the right to present the issues
of self-defense and multiple assailants as defense to the charge, the trial court left
the jury with no other possible alternative but to convict Appellant ofmurder.
The third factor in the Almanza analysis is the jury argument. This factor also
weighs heavily in favor of Appellant. See Dickey v. State, 22 S.W.3d 490, 496 (Tex.
Crim. App. 1999) (noting that during the closing arguments, the prosecutor made
several references to the multiple-assailants theory, despite the absence of said
instruction in the charge). The prosecutor made repeated references in closing that
Appellant’s use of force was not justified:
There was no force being used against Ricky Neal. There was absolutely not a stitch of evidence that said Ricky Neal was being attacked, was being punched, was being struck by a foot, nothing. Nothing. … Use of force is not justified, period. Now, you're going to hear, "Well, wait a
33 minute. He felt threatened. He felt threatened by Christopher Mass."
(RR17/197-98).
Why did Christopher Mass go out there? Because a buddy of his was getting in a fight with this cold-blooded murderer. He went out there, just like anybody would who they know is going to get in a fight. He walks outside behind him; stands 20 feet from Ricky Neal. According to Ricky Neal, 20 feet. Jon Dews is in front of him. Throws his hoodiein the car, comes around, and stands there, just like this.
(RR 17/215).
The State conceded during closing argument that Dews and Mass pursued
Appellant out of the mall with the full knowledge that a fight was about to happen.
It’s therefore laughable for the State to then suggest that Appellant had no
reason to expect that he was in danger when he saw Dews and Mass pursue him
outside the mall. This is especially ludicrous when the prosecutor himself confirmed in
his closing that Dews was went out there to fight Appellant. Moreover, it was the
prosecutor who also conceded in closing that Mass followed Dews outside with the
full knowledge that a fight was about to occur. And what did the prosecutor
acknowledge that Mass did as soon as he got to his car? He took his hoodie off,
thereby communicating to Appellant that he too planned to participate in the fight.
Appellant would therefore submit that the court’s decision to negate his self-
defense and multiple assailant instructions constitutes clear error and demands a
reversal.
34 Issue Number 5
The trial court erred in denying Appellant’s request for a necessity instruction.
Standard of Review—Denial of Proposed Instruction
This Court employs a two-step analysis when evaluating jury charge error.
See Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, this Court determines whether error occurred and then evaluates whether sufficient harm
resulted from the error to require reversal. Wilson v. State, 391 S.W.3d 131, 138
(Tex. App.–Texarkana 2012, no pet.) (citing Abdnor, 871 S.W.2d at 731–32).
Appellant submits that reversible error occurred when the trial court denied
his requested necessity instruction (RR 17/187-89) (“How do those facts,
undisputed, admitted by your client to the jury, entitle him to any lesser charge
other than outright murder”). Appellant’s proposed necessity instruction stated
that “when a person reasonably believes his conduct is immediately necessary to
avoid imminent harm and the desirability and urgency of avoiding the harm clearly
outweigh, according to ordinary standards reasonableness … that person’s conduct
is justified ….” (CR 364). Appellant ask that if the jury believed “from the evidence
that on the occasion in question the Defendant reasonably believed, viewed
from the standpoint of the Defendant at the time, that his conduct of shooting
his pistol at Christopher Mass was immediately necessary to avoid imminent harm
… then [he] should be acquitted” (CR 364-65).
35 An accused has a right to an instruction on necessity as a defense if it is
raised by any evidence, however weak. See Hamel v. State, 916 S.W.2d 491, 493
(Tex. Crim. App. 1996). One element of a necessity defense is that the accused
reasonably believes that his otherwise illegal conduct is immediately necessary to
avoid imminent harm. See Tex. Pen. Code Ann. § 9.22(1) (Vernon 1994). In
another context the Court of Criminal Appeals construed “imminent” bodily injury
to require a present, not a future threat. See Devine v. State, 786 S.W.2d 268,
270 (Tex. Crim. App. 1989). In interpreting § 9.22 one court has held that imminent
harm occurs when there is an emergency situation, and that conduct is immediately
necessary if the actor is required to make a split-second decision. See Smith v. State,
874 S.W.2d 269, 273 (Tex. App.—Houston [14th Dist.] 1994, pet. ref'd). In
contrast, fear induced by one's presence in a high crime area is not sufficient evidence
of immediate necessity to avoid imminent harm to justify unlawfully carrying a
handgun. See Johnson v. State, 650 S.W.2d 414, 416 (Tex. Crim. App. 1983).
The plea of justification based upon necessity, like a plea of self-defense,
must be assessed from the standpoint of the accused. The jury instruction is not
called for unless there is evidence from the accused admitting the offense but
claiming justification for having committed the offense because of other facts. See
Pentycuff v. State, 680 S.W.2d 527 (Tex. App.—Waco 1984, pet. ref'd); Klein v. State,
662 S.W.2d 166 (Tex. App.—Corpus Christi 1983, no pet.). In the present case,
36 defense counsel urged that Appellant was justified in raising a necessity defense. As
discussed supra, Appellant was pursued outside of the mall by Mass and Dews and
opened fire on them out of a genuine fear for his life. When Appellant observed
Mass reach into his vehicle, he became in fear that Mass would retrieve a weapon
and cause him serious bodily injury. In response, Appellant hastily retrieved his
firearm from inside his girlfriend’s vehicle and opened fire on Mass and Dews.
Appellant did nothing while outside in the parking lot to provoke this advance by
Dews and Mass and he was therefore entitled to an instruction under the necessity.
Deadly force is justified if the defendant would be justified in using force
against the other, if a reasonable person in the actor's situation would not have
retreated, and when and to the degree he reasonably believes the deadly force is
immediately necessary to protect himself against the other's use or attempted use of
unlawful deadly force. See Carmen v. State, 276 S.W.3d 538, 545 (Tex. App. 2008)
(citing Tex. Penal Code Ann. § 9.32). The use of force against another is not justified
if the actor provoked the other's use or attempted use of unlawful force unless the
other nevertheless continues or attempts to use unlawful force against the actor. Id. §
9.31(b) (4) (B). A defendant “is justified in defending against danger as he reasonably
apprehends it” as viewed in light of the evidence of the overt acts and words by the
complainant, and there is no additional requirement that the jury find that the
complainant was actually using or attempting to use unlawful deadly force against
37 appellant. Guilbeau v. State, 193 S.W.3d 156 160 (Tex. App.—Houston (1st Dist.)
2006); see Lavern v. State, 48 S.W.3d 356, 360–61 (Tex. App.-Houston [14 Dist.] 2001,
pet. ref'd); Halbert, 881 S.W.2d at 127; Semaire v. State, 612 S.W.2d 528,
530 (Tex. Crim. App. 1980).
Viewing the evidence in a light favorable to Appellant, the circumstances
surrounding the shooting support the Appellant's reasonable belief that unless he
resorted to deadly force, Dews and Mass would cause him serious bodily injury. See
Guilbeau, 193 S.W.3d at 159–61. The trial court’s denial of the necessity instruction
once again resulted in a negation of his self-defense claim. See Bumguardner, 963
S.W.2d at 175 (noting that a charge limiting a defendant's right to self-defense
under this section is properly given when (1) self-defense is an issue; (2) there are
facts in evidence that show that the defendant sought an explanation from or
discussion with the victim concerning their differences; and (3) the defendant was
unlawfully carrying a weapon). The trial court therefore erred in refusing to charge
the jury as to necessity concerning Appellant’s need to defend himself with deadly
force. The error occasioned by the court cannot be considered harmless because
there was compelling evidence in the record to justify Appellant’s belief that his life
was in danger when both Mass and Dews exited the mall and confronted him in
the parking lot. By denying the necessity charge, Appellant suffered great harm in
his ability to demonstrate to the jury that his actions were necessary under the self- 38 defense affirmative defense. But see Butler v. State, 663 S.W.2d 492, 496 (Tex. App.
1983) aff'd, 736 S.W.2d 668 (Tex. Crim. App. 1987) (noting that in a murder case,
however, where self-defense becomes the “immediately necessary” conduct, article
9.22 is rendered inapplicable). The undersigned would submit that this rule of law
should be revisited as it applies to the facts of this case because as noted supra in
Issue 4, the trial court all but negated Appellant’s self-defense chances at the jury
charge stage.
Here, because Appellant made a proper objection at trial, reversal is required
if the error is “calculated to injure the rights of defendant, or unless it appears
from the record that the defendant has not had a fair and impartial trial.” See
Almanza, 686 S.W.2d at 171 (noting that once an objection to a charge is
properly preserved, this Court must reverse the conviction if appellant suffered any
actual harm by the omission of the defensive instruction); see also Abdnor v. State, 871
S.W.2d 726 (Tex. Crim. App. 1994) (en banc) (holding that the level of harm an
appellant must demonstrate as having resulted from the erroneous jury instruction
depends on whether the appellant properly objected to the error); see also Tex.
Code Crim. Proc. Ann. art. 36.19 (West 2006).
Issue Number 6
39 The trial court erred in its ruling that Appellant could not elicit testimony from defense witness, Wilmon Davis, that shortly prior to the shooting someone in the mall utter “he might get shot.” Standard of Review
An appellate court reviews a trial court's decision to admit or exclude
evidence under an abuse of discretion standard. See Weatherred v. State, 15 S.W.3d
540, 542 (Tex. Crim. App. 2000).
The trial court erred in its ruling that Appellant could not elicit testimony from
defense witness, Wilmon Davis, that shortly prior to the shooting someone in the
mall uttered the phrase “he might get shot.” (RR 17/97). Defense counsel offered
Mr. Davis testimony regarding this hearsay statement outside the presence of the
jury. He testified that prior to the shooting, he was in the mall doing his walking
exercises when he passed a group of males with “sagging” pants standing out front
of Champs (RR 17/95). This group caught Davis’ attention because he constantly
admonishes his grandson not to wear his pants in that fashion because he looks like
a gangster. Id. Mr. Davis distinctly recalled that Mr. Neal was not one of the men
standing in this group (RR 17/95). As Mr. Davis made his last round of the mall,
he overhead one of the males in that group say “he might get shot” (RR 17/96-
97). As Mr. Davis later exited the mall, he saw Mass dead on the
ground (RR 17/97). Davis recalled that Mass was one of the males standing in the 54 group that he overheard say either “he might get shot” or “he’s going to get shot.”
Id. The last time Davis saw Mass in the mall, he saw Mass walking “out in front of
J.C. Penney and went back on the east side, went out that side” (RR 17/100). After
the shooting, Davis told Tyler police what he overheard (RR 17/99).
Defense counsel argued that the statement overhead by Davis was admissible
as both and an excited utterance and a presence sense impression under the
hearsay rules. A present sense impression is “a statement describing or explaining
an event or condition made while the declarant was perceiving the event or
condition, or immediately thereafter. See Tex. R. Evid. 803(1). There is no question
that Davis “immediately after perceiving the event described that event to the
Tyler police. The present sense impression exception to the hearsay rule is based
upon the underlying premise that the contemporaneity of the event and the
declaration ensures reliability of the statement. Brooks v. State, 990 S.W.2d 278, 287
(Tex. Crim. App. 1999). The closer the declaration is to the event the less likely
there will be a calculated misstatement. Id. In the present case, Mr. Davis was
interviewed by the police shortly after officers arrived on scene in response to the
shooting. Therefore this testimony was admissible.
The trial court excluded Mr. Davis’ testimony in part because he could not
identify who in the group made the statement (RR 17/85) (“could be, if you can
identify whoever the person was. But it sounds like neither side knows who said it, if
55 anyone really did say it”). In Green v. State, 876 S.W.2d 226 (Tex. App.--Beaumont
1994, no pet.), a police officer testified, over objection, to a statement “attributed to
two unnamed bystanders” that “the man in the brown trench coat was shooting.”
Id. at 227. On appeal, the court noted:
The record reflects that Officer Chatelain responded quickly to the gunshot occurring only a block away. The two witnesses were running from the direction of the gunshot. They were obviously describing an event that they had perceived almost immediately before encountering Officer Chatelain. Sufficient reliability existed for the statement to be admitted under the hearsay exception of Rule 803(1).
Id. at 228.
Just as in Green, Davis’ testimony in this case had sufficient indicia of reliability
and should have been admitted by the trial court. There is no disputing that
this testimony was both relevant and probative to the issue of whether Mass and
his group of thugs were the aggressors in this case. The proffered evidence by
Davis would have certainly aided the jury in understanding the motive and intent of
the group of gangsters in the mall prior to Mass exiting and confronting Appellant.
See Anderson v. State, 15 S.W. 3d 177, 184 (Tex. App.—Texarkana 2000) (noting
that statement of mind of the victim is relevant in cases involving defense claims of
self- defense, suicide, or accident) see also; 2 Barbara E. Bergman & Nancy
Hollander, Wharton's Criminal Evidence § 6:22 (15th ed. 1998 & Supp. 2000).
The trial court’s exclusion of this testimony was therefore an abuse of discretion.
Issue Number 7 56 Trial counsel rendered ineffective assistance of counsel in failing to challenge whether the State’s gang identification witness was qualified to render an expert opinion that Appellant was affiliated with a gang.
Standard of Review-Ineffective Assistance of Counsel
The standard of review for Appellant's complaint of ineffective assistance of
counsel is whether counsel's conduct “so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.”
Strickland v. Washington, 466 U.S. 668, 686 (1984); see Davis v. State, 2 7 8
S.W.3d 346, 352 (Tex.Crim.App.2009); Diaz v. State, 380 S.W.3d 309, 311 (Tex. App.—Fort Worth 2012, pet. ref'd). The Strickland test has two prongs: (1) a performance standard and (2) a prejudice standard. Strickland, 466 U.S. at 687. Argument
During the punishment trial, the State called Tyler Police Detective Chris
Miller to testify that based upon a review of Appellant’s tattoos, Miller believed that
he was a member of a violent street gang (RR 18/62). Miller testified as to his
experience as a police officer, a youth crimes division investigator and his
membership in the Texas Gang Investigators Association (RR 18/62-63). He also
testified that he had conducted training in the areas of gangs and gang intelligence
for the United States Attorney’s Office, the Texas Attorney General’s Office,
University of Texas, Tyler Junior College and the Texas Gang Investigation
Association. Id. Detective Miller did not testify as to any other qualifications that
would be make him an expert in gangs including whether he ever testified in the
57 past as a gang expert and how many times he’s been qualified in court as a gang
expert. 1
The State at no point during Miller’s testimony before the jury offered him
as an expert witness.2 The State simply asked Miller if he was the “gang guy” a n d
Miller responded “[t]hat’s what they tell me.” (RR 18/64). Defense counsel made
no effort whatsoever to challenge Miller’s qualifications as expert or the underlying
data that he relied upon in reaching his ultimate conclusions in this case. Instead,
trial counsel conceded on the record that Miller was an expert in gangs (RR 18/72)
(“I do not contest the State’s assertion that Detective Miller is an expert. I fully
concur with that. That is not my argument”).3 The trial court did overrule
counsel’s objections under Rules 401, 402 and 403, but made no ruling with respect
to the Rule 705(d) objection (RR 18/72) (“Well, I’ll overrule the objection.
37.7 is very broad. I don’t find, under 401, 402 or 403, that it should be
excluded”). Defense counsel failed to press the court for a ruling as to the 705(d)
1 1 The undersigned is familiar with Detective Miller having previously cross-examined him as gang expert and challenged his opinions on appeal. The undersigned therefore knows that Detective Chris Miller is recognized as an expert witness on criminal street gangs. 2 After defense counsel objected to Miller’s testimony under Texas Rules of Evidence 401, 402, 403 and 705(d), the State responded that “[a]s far as the 705 objection, obviously, Chris Miller has testified—and testified here today—
based upon his training and experience, he’s testified as an expert in this court before on numerous occasions. As a matter of fact, I believe that he qualifies as an expert based upon all of those factors that the Cou rt must listen to in determining whether or not somebody is an expert ….” (RR 18/72-73). 3 Trial counsel raised objections under Texas Rules of Evidence 401, 402, 403, and 705(d) as they related to the relevance and probative value of Detective Miller’s ultimate opinions because Appellant had a history as “gang affiliations” in Henderson, Texas and those past affiliations did not establish that he had any gang membership in Tyler where the shooting occurred (RR 18/71-72).
58 objection and Miller was permitted to continue unchallenged with his opinions.
Detective Miller opined that the tattoos he observed on Ricky Neal’s body
appeared to be a “constant theme” among the Bloods or a Blood set (RR 18/73).
Detective Miller thereafter went through photographs taken of each tattoo on
Appellant’s body and opined that the majority of those tattoos were consistent in
on way or another with the Bloods street gang (RR 18/73-83) (“In my opinion it
would be a high probability that he would be a member of a criminal street gang [A
Piru Blood]”) (RR 18/83).
On cross-examination, defense counsel had Miller run through an exhaustive
list of the violent street gangs in Tyler (RR 18/84-86). Miller conceded that
Appellant was not a “documented” member of any gang in Tyler (RR 18/86)
(Miller expanded that the other than the tattoos, he had no evidence to prove
Appellant was in an active member of any street gang in Tyler). That was the
extent of defense counsel’s cross-examination Miller.
A. The Problem with Gang “Expert” Testimony
Like all expert testimony, the testimony of gang experts regarding gang
membership must meet the relevance and reliability requirements of Texas Rule of
Evidence 702. See Tex. R. Evid. 702 (West). Rule 702, along with Rules 401, 403,
and 703, require the trial judge to act as a "gatekeeper," limiting the testimony of 59 expert witnesses. See Judge Harvey Brown, Eight Gates for Expert Witnesses, 36 Hous.
L. Rev. 743, 744 (1999); see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
587 (1993) (announcing that Federal Rule of Evidence 702 superseded the general
acceptance test for expert witness testimony articulated in Frye v. United States
seventy years earlier); Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923)
(promulgating the general acceptance test for the admissibility of expert witness
testimony); David E. Colmenero, A Dose of Daubert to Alleviate "Junk Science" in
Texas Courtrooms: Texas Adopts the Federal Standard for Determining the
Admissibility of Scientific Expert Testimony, 27 Tex. Tech L. Rev. 293, 294 (1996)
(asserting that judges have an affirmative duty to determine relevancy and reliability
of expert testimony). Expert testimony offered pursuant to Rule 702 must survive a
traditional relevancy analysis under Rules 401 and 402 of the Texas Rules of
Evidence. See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex.
1995) (noting Texas Rule of Evidence 702 requires the evidence to "assist the trier of
fact to understand the evidence or to determine a fact in issue").
Additionally, the scientific technique or procedure must be reliable. See
Robinson, 923 S.W.2d at 557. When determining the reliability of a scientific
technique or theory, a trial court may consider any number of factors, including
but not limited to: (1) the extent to which the theory has been or can be tested; (2)
the extent to which the technique relies upon the subjective interpretation of the
expert; (3) whether the theory has been subjected to peer review and/or 60 publication; (4) the technique's potential rate of error; (5) whether the underlying
theory or technique has been generally accepted as valid by the relevant scientific
community; and (6) the nonjudicial uses which have been made of the theory or
technique. Id.; see also Daubert, 509 U.S. at 593-94 (stating that many factors are
considered when determining reliability).
Texas courts consider the Daubert/Robinson factors when deciding whether
nonscientific evidence is reliable. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d
713, 726 (Tex. 1998). In cases where the expert's opinion is based more on skill and
experience, courts may not find the factors listed in Daubert and E.I. du Pont helpful
in determining the reliability of the expert's testimony. Gammill, 972 S.W.2d at 726
(stating that Daubert and Robinson considerations are not always useful in assessing
nonscientific testimony). In these cases, courts are charged with determining
whether there is "too great an analytical gap between the data and the opinion
proffered." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997); Gammill, 972 S.W.2d at
726. The crucial inquiry in the "analytical gap" test is whether the expert relied on
objective data or experimentation, or subjective interpretations. See Ford Motor Co. v.
Aguiniga, 9 S.W.3d 252, 263 (Tex. App. - San Antonio 1999, pet. denied)
(identifying the concern as whether experts relied on subjective interpretation or on
objective data or interpretation). Texas courts have consistently held that expert
opinions with little more than a "subjective belief or unsupported speculation" are
unreliable and therefore inadmissible. Gammill, 972 S.W.2d at 728; E.I. du Pont de 61 Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995).
In Texas, the analysis employed to determine how the reliability of particular
expert testimony is to be assessed is within the trial judge's discretion. Gammill, 972
S.W.2d at 726. Further, whether a court analyzes the reliability of an expert's
testimony using the Daubert/Robinson factors, the "analytical gap" test, or a
combination of the two, "in light of the increased use of expert witnesses and the
likely prejudicial impact of their testimony, trial judges have a heightened
responsibility to ensure that expert testimony show some indicia of reliability."
Robinson, 923 S.W.2d at 553. In short, "it is not so simply because 'an expert says it
is so.'" Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 712 (Tex. 1997) (quoting
Viterbo v. Dow Chem. Co., 826 F.2d 420, 421 (5th Cir. 1987)).
In Texas, the reliability and relevance requirements of Daubert apply to
both scientific and nonscientific expert testimony. Gammill, 972 S.W.2d at 726
(applying Daubert to all expert testimony). Texas courts require that a nonscientific
expert's skill and experience reflect the relevance and reliability of his testimony in
order for the testimony to pass through the methodological gate. Id. at 722. And,
although "reliability ... does not ... always require an examination of the
Daubert/Robinson factors ... the gatekeeping reliability requirement of Daubert applies
to all experts." Judge Harvey Brown, Eight Gates for Expert Witnesses, 36 Hous. L.
Rev. 743, 803-04 (1999).
62 Courts are also required to examine the foundational reliability of expert
testimony. Id. at 823. Daubert acknowledged that expert testimony must have "a
reliable foundation." Daubert, 509 U.S. 579, 597 (1993). "The foundational-
reliability gate ... focuses on the reliability of studies, articles, and data from others
in the expert's field and the assumptions of the expert." Judge Harvey Brown, Eight
Gates for Expert Witnesses, 36 Hous. L. Rev. 743, 821 (1999). The expert's testimony
that the research is reliable is not enough. Id. Simply put, "if the foundational data
underlying opinion testimony are unreliable, an expert will not be permitted to
base an opinion on that data because any opinion drawn from that data is likewise
unreliable." Merrell, 953 S.W.2d at 714.
Issue Number 8
The trial court erred in denying Appellant’s request lesser-included offense jury instructions.
This Court employs a two-step analysis when evaluating jury charge error.
See Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, this Court
determines whether error occurred and then evaluates whether sufficient harm
resulted from the error to require reversal. Wilson v. State, 391 S.W.3d 131, 138
(Tex. App.–Texarkana 2012, no pet.) (citing Abdnor, 871 S.W.2d at 731–32).
At trial, Appellant requested special jury instructions be included the charge
for the lesser included crimes of manslaughter (CR 366-67), criminally negligent 63 homicide (CR 367), deadly conduct (CR 368) (RR 17/182). The trial court denied
Appellant’s request for these special instructions.
Again, just so you're crystal clear with what I think this jury has heard, that the evidence was that your client did the same thing that the admissions say, and that he pulled a gun out. And the gun inadvertently went off and shot this gentleman, yeah, maybe manslaughter, maybe recklessness is there. But whenever you start adding shot after shot, hitting the same person, as I said, I think it would be incredible that any higher court would suggest that, under those facts in this case, that your client would have any right to any lesser included offense charges.
(RR 17/182-83).
Chapter 9 of the Texas Penal Code recognizes certain justifications that, under
Section 2.03, are defenses to prosecution. See TEX. PEN. CODE § 2.03(a) (“A
defense to prosecution for an offense in this code is labeled by the phrase: ‘It i s a
defense to prosecution ...’ ”); see also TEX. PEN. CODE § 9.02 (“It is a defense to
prosecution that the conduct in question is justified under this chapter.”). If there is
some evidence that a defendant's actions were justified under one of the provisions of
Chapter 9, the State has the burden of persuasion to disprove the justification beyond
a reasonable doubt. See TEX. PEN. CODE § 2.03(d).
In the present case, Appellant raised evidence that he shot Mass while acting
in self-defense, a Chapter 9 justification. See TEX. PEN. CODE §§ 9.31 (Self–
Defense), 9.32 (Deadly Force in Defense of Person). Assuming a jury believes that a
defendant's actions were justified under Chapter 9 (or has a reasonable doubt that
the actions were justified under Chapter 9), the plain meaning of Sections 9.02 and
64 2.03 is that the fact-finder may not convict the defendant for an offense based on
those actions. See Alonzo v. State, 353 S.W. 3d 778, 781 (Tex. Crim. App. 2011).
In the present case, the trial court erred in denying Appellant’s request for
these lesser-included offense instructions because the evidence at trial, including
Appellant’s own recorded confession, discussed supra justified inclusion of these
instructions in the final charge.
“[A] lesser-included offense instruction shall be included in the jury charge
if: (1) ‘the requested charge is for a lesser-included offense of the charged offense;
and (2) there is some evidence that, if the defendant is guilty, he is guilty only of the
lesser offense.’ “Guzman v. State, 188 S.W.3d 185, 188 (Tex.Crim.App.2006)
(quoting Hayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App.2005)). Appellant in
the present case met both of these burdens at trial.
The first step is a question of law that is determined by the pleadings and
does not depend on the evidence produced at trial. Hall v. State, 225 S.W.3d 524,
535 (Tex. Crim. App. 2007). An offense is a lesser included offense if: (1) it is
established by proof of the same or less than all the facts required to establish the
commission of the offense charged; (2) it differs from the offense charged only in
the respect that a less serious injury or risk of injury to the same person, property,
or public interest suffices to establish its commission; (3) it differs from the offense
charged only in the respect that a less culpable mental state suffices to establish its
commission; or (4) it consists of an attempt to commit the offense charged or an 65 otherwise included offense. Tex. Code Crim. Proc. Ann. Art. 37.09 (West 2006).
“[T]he elements and the facts alleged in the charging instrument are used to find
lesser-included offenses [.]” Hall, 225 S.W.3d at 535.
“The second step in the analysis should ask whether there is evidence that
supports giving the instruction to the jury.” Id. at 536. “[A]nything more than a
scintilla of evidence may be sufficient to entitle a defendant to a lesser charge.” Id.
“[T]he evidence must establish the lesser-included offense as ‘a valid, rational
alternative to the charged offense.’ “ Id. (quoting Forest v. State, 989 S.W.2d 365, 367
(Tex. Crim. App. 1999)).
In this case, the indictment contained a single paragraph alleging murder
(CR 1). Under Penal Code section 19.02(b) (1), the indictment alleges that (1)
Appellant intentionally or knowingly caused Mass’ death shooting him with a
firearm. In comparison, the elements of manslaughter would require some proof
that Appellant recklessly caused Mass’ death by shooting him with a firearm. Id. at
§ 19.04(a). Conversely, the elements of criminally negligent homicide would require
proof that Appellant with criminal negligence caused Mass’ death by shooting him
with a firearm. Id. at § 19.05(a) (West 2003).
In this case, the offense as charged and presented to the jury included
intentional or knowing murder under section 19.02(b) (1), which requires a culpable
mental state. Tex. Penal Code. Ann. § 19.02(b) (1). “The only distinction between
an intentional or knowing murder and the lesser offenses of manslaughter and 66 criminally negligent homicide lies in the culpable mental state accompanying the
homicidal act.” Pitonyak v. State, 253 S.W.3d 834, 846 (Tex. App.-Austin 2008, pet.
ref'd). Accordingly, manslaughter, criminally negligent homicide and deadly
conduct differ from the charged offense of intentional or knowing murder only in
the respect that a less culpable mental state suffices to establish their commission;
thus, they are lesser-included offenses of murder as charged and presented to the
jury. See Tex. Code Crim. Proc. Ann. art. 37.09(3) (West 2006); see also Pitonyak, 253
S.W.3d at 846–47; Pierce v. State, 234 S.W.3d 265, 269–71 (Tex. App.-Waco 2007,
pet. ref'd) (Where indictment charged Pierce with murder under 19.02(b)(1) and
(b)(2), the Waco court concluded that manslaughter and criminally negligent
homicide were lesser-included offenses of murder as charged in the indictment).
To establish the second prong of the lesser-included offense analysis,
Appellant must demonstrate that the evidence at trial raises the issue of
manslaughter, criminally negligent homicide and deadly conduct because the jury
could have concluded that he did not knowingly or intentionally kill Mass, but
either recklessly or negligently caused his death when he fired the fatal shots in his
direction. At trial, Appellant’s counsel argued that the evidence suggested that Neal
fired the shots out of “sudden passion” while he was “stricken with terror” at the
events that unfolded before him (RR 17/178). The trial court rejected Appellant’s
argument (RR 17/182).
Given Appellant’s confession that he had no intent to kill Mass at the time 67 the shots were fired, there was proof that the jury could have relied upon to find
him guilty of only manslaughter or criminally negligent homicide. Tex. Penal Code
Ann. § 6.03(c) (West 2003) (defining “recklessly”); Id. at § 6.03(d) (defining “criminal
negligence”); See Guzman, 188 S.W.3d at 188; see also Lewis v. State, 529 S.W.2d 550,
553 (Tex.Crim.App.1975) (“At the heart of reckless conduct is conscious disregard
of the risk created by the actor's conduct; the key to criminal negligence is found in
the failure of the actor to perceive the risk.”). As noted supra, at the time he fired
the shots, Appellant stated to police that he had no intention of killing Mass (RR
16/241) (Appellant shot Mass 3 times). Appellant maintained in is voluntary
statement that the reason he shot Mass was because he feared for his life. Id.
Anything more than a scintilla of evidence is sufficient to entitle a defendant to an
instruction on a lesser-included offense. See Goad v. State, 354 S.W.3d 443, 446
(Tex.Crim.App.2011). The evidence can come from any source, and a defendant's
testimony alone is sufficient to raise the issue. Bell v. State, 693 S.W.2d 434, 442
(Tex. Crim. App. 1985).
Accordingly, because the jury was altogether precluded by the trial court
from even considering evidence of guilt as to these lesser-included offenses, the
error occasion in this case caused sufficient harm and requires reversal. Wilson
v. State, 391 S.W.3d 131, 138 (Tex. App.–Texarkana 2012, no pet.) (citing Abdnor,
871 S.W.2d at 731–32).
68 Issue Number 9
The trial court erred in denying Appellant’s request for inclusion in the punishment charge of a sudden passion instruction.
We review a trial court's decision whether to instruct the jury on a defensive
issue, such as sudden passion, for an abuse of discretion. See Love v. State, 199 S.W.3d
447, 455 (Tex.App.–Houston [1st Dist.] 2006, pet. ref'd) (citing Wesbrook v. State, 29
S.W.3d 103, 122 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001)). In
reviewing a case involving a sudden-passion jury charge, it is our duty to focus on
the evidence supporting that charge, not on the evidence refuting it. Trevino, 100
S.W.3d at 239.
During the punishment trial phase of the case, the court inquired whether
either the State or defense had any objection to the proposed punishment jury
instructions (RR 18/61) (CR 342). Both the State and defense counsel advised the
trial court that they had no objection to the punishment charge (RR 18/61).
Thereafter, defense counsel filed a motion to replace the current p un ish men t
charge (CR 390-91).
In the motion, defense counsel noted “at approximately 5:00 PM on
Wednesday, 7 May 2014, the Court excused the jury and ordered same to return
to Court on Tuesday, 13 May 2014 to be read the Punishment Charge, to hear
69 closing arguments, and to deliberate the Defendant’s punishment in the case at
hand” (CR 390). Defense counsel thereafter acknowledged that he made no
objection to the trial court’s proposed punishment instruction at that time. Id. On
May 12, 2014, the day prior to the jury’s return to court, defense counsel filed his
motion requesting replacement of the jury punishment charge. Id.
Counsel argued in the motion that the punishment charge should include a
section regarding “sudden passion”. Id. and (RR Sup. 1/6-7). Counsel argued that
according to Appellant’s confession:
[H]e felt he had no choice but to shoot Christopher Mass in order to save his own life from immediate imminent attack by Mr. Mass. Mr. Neal explained in his interview that the sudden approach of Mr. Mass and Mr. Neal’s immediate fear and apprehension of imminent attack upon him by Mr. Mass, a stranger to Mr. Neal, was the reason he shot Mr. Mass.
(CR 390). Defense counsel also stressed that:
During the punishment stage of the trial, the Defendant put on seven witnesses, who, together, inferentially and/or directly painted a picture to the jury that Mr. Neal (1) is not a violent man; (2) is not prone to bursts of temper; (3) is a fluent and gifted communicator who can usually talk his way out of a pending or imminent bad or dire situation. It is therefore possible, under the evidence presented to the jury during the punishment phase of the trial, that Mr. Neal, normally a cool, calm, communicative individual, and while fearing imminent attack from Mr. Mass, acted out sudden passion when he shot and killed Christopher Mass. Id. The State objected to the inclusion of the sudden passion instruction (RR
Supp. 1/8). The trial court denied Appellant’s requested charge ruling that in order 70 for Appellant to have been entitled to the sudden passion instruction, the evidence
had to establish more than “mere fear” (RR Supp. 1/11).
Texas law recognizes that sudden passion and self-defense are distinct
inquiries for which a jury's verdict will not always overlap. See Wooten v. State, 400
S.W.3d 601, 608–09 (Tex. Crim. App. 2013). “If the defendant proves the issue in
the affirmative by a preponderance of the evidence, the offense is a felony of the
second degree.” Id.; see also Bell, 693 S.W. 2d at 442 (noting that such evidence can
come from any source, and a defendant's testimony alone is sufficient to raise the
issue).
“Sudden passion” is defined for these purposes as “passion directly caused
by and arising out of provocation by the individual killed or another acting with the
person killed which passion arises at the time of the offense and is not solely the
result of former provocation. Id. § 19.02(a) (2). The “adequate cause” giving rise
to sudden passion for these purposes is a cause “that 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). An
accused is entitled to an instruction on every defensive issue raised by the
evidence, regardless of whether that evidence is weak, contradicted, un-impeached,
or unbelievable. Trevino v. State, 100 S.W.3d 232, 238 (Tex. Crim. App. 2003). The
defendant has the burden of production and persuasion with respect to the issue
71 of sudden passion. TEX. PENAL CODE § 19.02(d).
To justify an instruction on the issue of sudden passion at the punishment
phase, at a minimum the record must support inferences that:
(1) the defendant 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 provocation
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 homicide.”
Wooten, 400 S.W.3d at 605. If the reviewing court agrees that a trial court erred
by failing to submit a sudden passion instruction, then it must analyze whether
the error harmed the appellant. Id. at 606.
In Wooten, CCA considered the question whether the defendant had been
harmed by the omission of a requested sudden-passion special issue at
the punishment phase. Id. at 608. In holding that he had not, the CCA
observed that, given that the jury had rejected Wooten's claim that his use of deadly
force was justified, it was, on the facts of that record, “highlyunlikely” that the jury
would have nevertheless found that he acted under the immediate influence of
sudden passion. Id. at 609. The Court's holding in Wooten was based on the rationale
that, by its verdict of guilty, the jury had indicated that it “simply did not believe” 72 Wooten's self-defense claim, which was premised on a factual assertion that the
complainant had fired upon Wooten first. Id. The Court accordingly concluded that
Wooten had not suffered “some harm” as a result of the omitted sudden passion
special issue.Id. at 610.
The facts of this case, however, differ from those in Wooten. As noted supra
in Issue 4, the trial court completely gutted Appellant’s self-defenseinstruction. As
a consequence, the jury in this case, unlike the jury in Wooten, was not afforded the
opportunity to thoroughly deliberate and determine whether Appellant acted in self-
defense. It therefore cannot be presumed that jury in this case would have rejected a
sudden-passion special issue.
In Trevino v. State, 60 S.W.3d 188 (Tex. App.–Fort Worth 2001), aff'd 100
S.W.3d 232 (Tex. Crim. App. 2003), the Fort Worth court of appeals observed
that “[w]hen the defendant raises issues of self-defense during the guilt/innocence
phase of trial, the issue of sudden passion is typically also raised.... Accordingly, trial
courts should give both instructions when requested.” Trevino, 60 S.W.3d at 195
(quoting Chavez v. State, 6 S.W.3d 66, 72–73 (Tex. App.–San Antonio 1999, pet.
ref'd)). Similar language can be found in other cases, albeit in the context of
different types of legal challenges. See, e.g., Chavez, 6 S.W.3d at 72–73 (ineffective
assistance of counsel for failure to request sudden-passion instruction); Benavides v.
State, 992 S.W.2d 511, 524–25 (Tex. App.–Houston [1st Dist.] 1999, pet. ref'd) (legal 73 sufficiency of evidence to support murder conviction). But see Grffen v. State, 2014
WL 7474076 (Tex. App.—Houston (1st Dist.) 2014). (observing that “a bare claim
of ‘fear’ ” does not demonstrate “sudden passion arisingfrom adequate cause”).
As noted supra, Appellant’s confession confirms that under the
circumstances of his attack he was in fear for his life and had to adequate time to
reflect upon the full consequence of his actions. In McKinney v. State, No. 12–03–
00155–CR, 2004 WL 1852975, 2004 Tex. App. LEXIS 7472
(Tex. App.-Tyler August 18, 2004) this Court noted that for anger or fear to rise to
the level of sudden passion, the appellant's mind must have been rendered
incapable of cool reflection. In the case sub judice, Appellant did not simply act in
response to Mass’ provocation. He instead acted under the immediate influence
of sudden passion arising from an adequate cause, t h e fact that two large
individuals whom he’d just had a heated verbal exchange with had pursued him
outside of the mal in order to fight with him. Accordingly, the facts in this case
justified inclusion of a sudden passion instruction in the punishment charge and
trial court erred in refusing to grant same.
Prayer
Wherefore, premises considered, appellant prays that the Court reverse the
judgment and remand the cause for new trial. Appellant further prays for all other
relief to which he may be entitled. 74 Respectfully submitted,
/s/ Gerald J. Smith, Sr. Gerald J. Smith, Sr. State Bar No. 24039316 2000 E. Lamar Blvd., Suite 330 Arlington, Texas 76006 Tel. 817-635-3100 Fax 817-635-3400 attorney@gjsmithlaw.com Attorney for the Appellant
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface no smaller than 14- point for text and 12-point for footnotes. This document also complies with the word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains less than 15,000 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).
75 CERTIFICATE OF SERVICE
I certify that a true and correct copy of Appellant’s brief was delivered via U.S. Mail to the following parties on 8 May 2015:
Michael West Assistant District Attorney Smith County District Attorney 100 N. Broadway Avenue, 4th Floor Tyler, Texas 75702
Jim Ferguson Unit Inmate: Rickey Neal, Jr. TDCJ No. 01934438 12120 Savage Dr. Midway, Texas 75852
/s/ Gerald J. Smith, Sr.
Ricky Neal Jr. v. State (Ricky Neal Jr. v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.