Opinion issued October 29, 2013.
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-12-00638-CR ——————————— ROLLIN CALVIN O’NEAL, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court Harris County, Texas Trial Court Case No. 1279130
MEMORANDUM OPINION
Rollin Calvin O’Neal appeals a judgment convicting him of murder. See
TEX. PENAL CODE ANN. § 19.02 (West 2011). A jury found O’Neal guilty and
assessed his punishment at fifty years’ confinement. O’Neal raises one issue on appeal. He maintains the trial court erred in denying his request to instruct the jury
on defense of a third person. See TEX. PENAL CODE ANN. § 9.33 (West 2011). We
affirm.
Background
On May 21, 2010, Shardell Banks engaged in an act of prostitution with
Santos Fuentes at her home. The next day, while Banks was standing in her
driveway, Banks saw Fuentes walking in the street. Banks was talking to a man
she knew as “Tiger,” and she told Fuentes “to go on about his business” or “[g]o
away.” Suddenly, without Banks’s prompting, Tiger crossed the street and started
beating Fuentes with his fists. Fuentes fought back. Sometime later, Banks saw
the appellant, O’Neal, replace Tiger in the fight. The fight took place in the street
in front of Banks’s home and lasted about three minutes. When the fight ended,
Fuentes walked a short distance before collapsing. Fuentes died at the scene from
what the medical examiner later determined were sharp force injuries with
penetration of the heart. The medical examiner testified that the source of
Fuentes’s injuries was a knife or other sharp object. Anthony Daniel, a witness,
testified that he saw O’Neal stab Fuentes with a knife. Banks testified that O’Neal
showed her a bloody knife immediately following the fight. Daniel and Banks
both testified that Fuentes was unarmed.
2 At trial, O’Neal asked Banks whether she had feared a threat to her life or
serious bodily injury during the fight. Banks responded that she had. On redirect,
the State attempted to clarify Banks’s response to O’Neal’s question. Banks
explained that she had misunderstood O’Neal’s question and that she had not been
afraid of Fuentes.
O’Neal asked the trial court to instruct the jury on defense of a third
person—Banks. The trial court refused. O’Neal objected, and the trial court
overruled his objection. This appeal followed.
Applicable Law
We apply a two-step analysis to jury-charge issues. See Love v. State, 199
S.W.3d 447, 455 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (citing Ngo v.
State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005)). “[W]e first determine if
error actually exists in the jury charge and, if we find error, we determine whether
it harmed the appellant.” Id. “We review a trial court’s decision not to include an
instruction on a defensive issue in the charge for an abuse of discretion, and we
view the evidence in the light most favorable to the defendant’s requested
submission.” Reynolds v. State, 371 S.W.3d 511, 522 (Tex. App.—Houston [1st
Dist.] 2012, pet. ref’d) (citing Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim.
App. 2006)); Love, 199 S.W.3d at 455.
3 The Texas Code of Criminal Procedure requires the trial court to “deliver to
the jury . . . a written charge distinctly setting forth the law applicable to the case.”
TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007); see also McGregor v. State,
394 S.W.3d 90, 123 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). “The issue
of the existence of a defense is not submitted to the jury unless evidence is
admitted supporting the defense.” TEX. PENAL CODE ANN. art. 2.03(c) (West
2011). “[A] judge must give a requested instruction on every defensive issue
raised by the evidence without regard to its source or strength, even if the evidence
is contradicted or is not credible.” Krajcovic v. State, 393 S.W.3d 282, 286 (Tex.
Crim. App. 2013) (citing Juarez v. State, 308 S.W.3d 398, 404-05 (Tex. Crim.
App. 2010)). A defense is 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.” Shaw v. State, 243 S.W.3d
647, 657–58 (Tex. Crim. App. 2007).
Section 9.33 of the Texas Penal Code provides that a person is justified in
using deadly force to protect a third person if he reasonably believes the third
person would be justified in using deadly force to protect himself and if he
reasonably believes deadly force is immediately necessary to protect the third
person. TEX. PENAL CODE ANN § 9.33; see also Smith v. State, 355 S.W.3d 138,
145 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). A reasonable belief is “a
4 belief that would be held by an ordinary and prudent man in the same
circumstances as the actor.” TEX. PENAL CODE ANN. § 1.07(42) (West Supp.
2012); see also Walters v. State, 247 S.W.3d 204, 213 (Tex. Crim. App. 2007).
Deadly force is “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 ANN. § 9.01(3) (West 2011); see also Ferrel v. State,
55 S.W.3d 586, 591–92 (Tex. Crim. App. 2001).
Analysis
O’Neal contends that the jury could have believed Banks’s original
statement, that she feared a threat to her life or serious bodily injury during the
fight, and, therefore, he was entitled to an instruction on defense of a third person.
“[W]hen a witness recants prior testimony, it is up to the fact finder to determine
whether to believe the original statement or the recantation.” Eubanks v. State, 326
S.W.3d 231, 241 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (quoting
Saldana v. State, 287 S.W.3d 43, 60 (Tex. App.—Corpus Christi 2008, pet. ref’d)).
Here, however, whether the jury could have believed Banks’s original testimony is
inapposite.
The Texas Penal Code requires the trial court to instruct the jury on a
defense only if there is some evidence on each element of the defense to support a
rational inference that the element is true. See TEX. PENAL CODE ANN. § 2.03(c);
5 Shaw, 243 S.W.3d at 657–58. Thus, the issue for the trial court was whether there
was some evidence to support a rational inference that O’Neal reasonably believed
Banks would have been justified in using deadly force to protect herself and that
O’Neal reasonably believed using deadly force was immediately necessary to
protect Banks. See TEX. PENAL CODE § 9.33; see also Smith, 355 S.W.3d at 145.
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Opinion issued October 29, 2013.
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-12-00638-CR ——————————— ROLLIN CALVIN O’NEAL, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court Harris County, Texas Trial Court Case No. 1279130
MEMORANDUM OPINION
Rollin Calvin O’Neal appeals a judgment convicting him of murder. See
TEX. PENAL CODE ANN. § 19.02 (West 2011). A jury found O’Neal guilty and
assessed his punishment at fifty years’ confinement. O’Neal raises one issue on appeal. He maintains the trial court erred in denying his request to instruct the jury
on defense of a third person. See TEX. PENAL CODE ANN. § 9.33 (West 2011). We
affirm.
Background
On May 21, 2010, Shardell Banks engaged in an act of prostitution with
Santos Fuentes at her home. The next day, while Banks was standing in her
driveway, Banks saw Fuentes walking in the street. Banks was talking to a man
she knew as “Tiger,” and she told Fuentes “to go on about his business” or “[g]o
away.” Suddenly, without Banks’s prompting, Tiger crossed the street and started
beating Fuentes with his fists. Fuentes fought back. Sometime later, Banks saw
the appellant, O’Neal, replace Tiger in the fight. The fight took place in the street
in front of Banks’s home and lasted about three minutes. When the fight ended,
Fuentes walked a short distance before collapsing. Fuentes died at the scene from
what the medical examiner later determined were sharp force injuries with
penetration of the heart. The medical examiner testified that the source of
Fuentes’s injuries was a knife or other sharp object. Anthony Daniel, a witness,
testified that he saw O’Neal stab Fuentes with a knife. Banks testified that O’Neal
showed her a bloody knife immediately following the fight. Daniel and Banks
both testified that Fuentes was unarmed.
2 At trial, O’Neal asked Banks whether she had feared a threat to her life or
serious bodily injury during the fight. Banks responded that she had. On redirect,
the State attempted to clarify Banks’s response to O’Neal’s question. Banks
explained that she had misunderstood O’Neal’s question and that she had not been
afraid of Fuentes.
O’Neal asked the trial court to instruct the jury on defense of a third
person—Banks. The trial court refused. O’Neal objected, and the trial court
overruled his objection. This appeal followed.
Applicable Law
We apply a two-step analysis to jury-charge issues. See Love v. State, 199
S.W.3d 447, 455 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (citing Ngo v.
State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005)). “[W]e first determine if
error actually exists in the jury charge and, if we find error, we determine whether
it harmed the appellant.” Id. “We review a trial court’s decision not to include an
instruction on a defensive issue in the charge for an abuse of discretion, and we
view the evidence in the light most favorable to the defendant’s requested
submission.” Reynolds v. State, 371 S.W.3d 511, 522 (Tex. App.—Houston [1st
Dist.] 2012, pet. ref’d) (citing Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim.
App. 2006)); Love, 199 S.W.3d at 455.
3 The Texas Code of Criminal Procedure requires the trial court to “deliver to
the jury . . . a written charge distinctly setting forth the law applicable to the case.”
TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007); see also McGregor v. State,
394 S.W.3d 90, 123 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). “The issue
of the existence of a defense is not submitted to the jury unless evidence is
admitted supporting the defense.” TEX. PENAL CODE ANN. art. 2.03(c) (West
2011). “[A] judge must give a requested instruction on every defensive issue
raised by the evidence without regard to its source or strength, even if the evidence
is contradicted or is not credible.” Krajcovic v. State, 393 S.W.3d 282, 286 (Tex.
Crim. App. 2013) (citing Juarez v. State, 308 S.W.3d 398, 404-05 (Tex. Crim.
App. 2010)). A defense is 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.” Shaw v. State, 243 S.W.3d
647, 657–58 (Tex. Crim. App. 2007).
Section 9.33 of the Texas Penal Code provides that a person is justified in
using deadly force to protect a third person if he reasonably believes the third
person would be justified in using deadly force to protect himself and if he
reasonably believes deadly force is immediately necessary to protect the third
person. TEX. PENAL CODE ANN § 9.33; see also Smith v. State, 355 S.W.3d 138,
145 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). A reasonable belief is “a
4 belief that would be held by an ordinary and prudent man in the same
circumstances as the actor.” TEX. PENAL CODE ANN. § 1.07(42) (West Supp.
2012); see also Walters v. State, 247 S.W.3d 204, 213 (Tex. Crim. App. 2007).
Deadly force is “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 ANN. § 9.01(3) (West 2011); see also Ferrel v. State,
55 S.W.3d 586, 591–92 (Tex. Crim. App. 2001).
Analysis
O’Neal contends that the jury could have believed Banks’s original
statement, that she feared a threat to her life or serious bodily injury during the
fight, and, therefore, he was entitled to an instruction on defense of a third person.
“[W]hen a witness recants prior testimony, it is up to the fact finder to determine
whether to believe the original statement or the recantation.” Eubanks v. State, 326
S.W.3d 231, 241 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (quoting
Saldana v. State, 287 S.W.3d 43, 60 (Tex. App.—Corpus Christi 2008, pet. ref’d)).
Here, however, whether the jury could have believed Banks’s original testimony is
inapposite.
The Texas Penal Code requires the trial court to instruct the jury on a
defense only if there is some evidence on each element of the defense to support a
rational inference that the element is true. See TEX. PENAL CODE ANN. § 2.03(c);
5 Shaw, 243 S.W.3d at 657–58. Thus, the issue for the trial court was whether there
was some evidence to support a rational inference that O’Neal reasonably believed
Banks would have been justified in using deadly force to protect herself and that
O’Neal reasonably believed using deadly force was immediately necessary to
protect Banks. See TEX. PENAL CODE § 9.33; see also Smith, 355 S.W.3d at 145.
Banks’s original testimony might support a rational inference that Banks feared a
threat to her life or serious bodily injury, but it does not establish that O’Neal
reasonably believed Banks would have been justified in using deadly force to
protect herself. Nor does it establish that O’Neal reasonably believed using deadly
force was immediately necessary to protect Banks. See Morales v. State, 357
S.W.3d 1, 8 (Tex. Crim. App. 2011) (“We also point out that the focus of the
defense-of-third-persons defense is upon what the actor reasonably believes
concerning the situation of the third person.”) (emphasis added).
Indeed, nothing in the record supports a rational inference that an ordinary
and prudent person in O’Neal’s situation would have believed that Banks was
threatened by Fuentes such that deadly force was justifiable and immediately
necessary to protect Banks. The record does not make clear whether O’Neal
observed Banks tell Fuentes to go away. Even if O’Neal had, nothing about that
interaction supports a reasonable belief on the part of O’Neal that Fuentes was
threatening Banks so as to justify the use of deadly force. Cf. Hamel v. State, 916
6 S.W.2d 491, 492, 494 (Tex. Crim. App. 1996) (holding defendant was entitled to
instruction on defense of third person in part because victim threatened to shoot
third person and victim gave impression he was retrieving his gun). The same
holds true if O’Neal did not know that Banks had told Fuentes to go away, and
O’Neal believed Banks to be a mere bystander. See, e.g., Madrigal v. State, 347
S.W.3d 809, 817–18 (Tex. App.—Corpus Christi 2011, pet. ref’d) (concluding
evidence was insufficient to raise defense of third person where defendant testified
he had feared for third party’s safety and had pushed third party aside, but where
victim was unarmed and there was no evidence that victim had threatened third
party); Pena v. State, 635 S.W.2d 912, 914 (Tex. App.—Eastland 1982, writ ref’d)
(holding evidence did not entitle appellant to defense of third person instruction
where victim was armed, victim threatened to shoot appellant, and appellant
testified he had feared for third party’s safety and had moved third party aside, but
where there was no evidence that victim had threatened third party). In sum,
because no evidence supports a rational inference that Fuentes threatened Banks so
as to justify a belief on the part of O’Neal that deadly force was justified, we hold
that the trial court did not abuse its discretion in refusing to instruct the jury on
defense of a third person.
We overrule O’Neal’s sole point of error.
7 Conclusion
We affirm the trial court’s judgment.
Rebeca Huddle Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).