Judgment rendered November 20, 2024. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 55,869-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
TIMOTHY R. MORRISON Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 391,652
Honorable Katherine Clark Dorroh, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Peggy J. Sullivan
TIMOTHY R. MORRISON Pro Se
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
KENDRA S. JOSEPH JASON W. WALTMAN MARGARET RICHIE GASKINS Assistant District Attorneys
Before HUNTER, MARCOTTE, and ELLENDER, JJ. ELLENDER, J.
Timothy Morrison appeals his conviction of aggravated battery and
sentence of six years at hard labor, with a fine of $1,000, plus court costs.
For the reasons expressed below, we affirm Morrison’s conviction and
sentence, but remand to the trial court for a financial hardship hearing in
accordance with La. C. Cr. P. art. 875.1.
FACTS
On July 28, 2022, Ms. Johnny Walker was sitting in her yard on
Devaughn Street in Shreveport, Louisiana, with her daughter, Lisa Colquitt,
several grandchildren, and her son-in-law, Richard Espinoza. Morrison,
whom Walker, Colquitt, and Espinoza each knew as “the watermelon man,”
pulled up in his truck, hauling his produce trailer. Morrison exited his
vehicle, spoke with Walker and Colquitt, then turned to greet Espinoza.
When the two men spoke, they began arguing about an encounter they had a
few days prior when Espinoza approached Morrison to buy a watermelon.
In that encounter, Morrison believed Espinoza walked away after simply
being asked how he could be helped, while Espinoza was adamant it was
Morrison who walked away after refusing to sell him a watermelon. As the
argument about what actually happened a few days before escalated,
Morrison bent down, picked up a broken metal table leg lying in the yard,
and swung it, hitting Espinoza in the head. When Espinoza fell to the
ground, bleeding profusely from a head wound, Morrison dropped the table
leg, walked to his truck, and left. Espinoza was transported to the hospital,
where he received a number of staples and stitches to close his head wound. Morrison was subsequently arrested and charged by bill of
information with one count of aggravated second degree battery. The case
proceeded to jury trial where Walker, Colquitt, and Espinoza each identified
Morrison as the man who struck Espinoza with a metal table leg in Walker’s
yard. Walker testified she saw Morrison pick up the table leg and strike
Espinoza in the head with it, causing Espinoza to fall to the ground bleeding
profusely. Colquitt testified she did not witness the actual battery because
she was looking down at her phone, but when she looked up, she saw
Morrison drop the table leg and leave. Colquitt estimated the verbal
altercation between Morrison and Espinoza lasted approximately 30 to 45
minutes before Morrison hit Espinoza. Colquitt was the only witness who
estimated how long the argument lasted.
Espinoza testified that when Morrison began walking toward him and
picked up the table leg, he stood and put his hands up in a defensive stance
just prior to Morrison hitting him. Espinoza said he fell down after being hit
by Morrison, paramedics treated his head wound, and he received staples
and stitches at the hospital following his injury. On cross-examination,
Espinoza acknowledged a prior felony conviction for domestic abuse battery
with strangulation. Detective Hunter DeLoach with the Shreveport Police
Department testified about his investigation, and the State introduced
photographs of the yard, the metal table leg, and Espinoza’s head wound.
The defense called several witnesses, with Morrison choosing to
testify in his own defense. He stated he owned and operated Morrison’s
Quality Produce and sold his goods at various stands in Louisiana and Texas
as well as out of a trailer attached to his truck. He previously served in the
U.S. Army as a medic and was honorably discharged in 1982, then worked 2 with computers for many years. Morrison began treating at the VA Hospital
for prostate cancer in 2019, and said he was currently receiving medical
treatment for an enlarged prostate requiring very strong medicine which
negatively affected his appetite, caused liver damage, and generally made
him feel weaker than normal. Morrison admitted he picked up a metal table
leg from Walker’s yard and hit Espinoza with it, but claimed he did this in
self-defense. Morrison testified that because of his weakened physical
condition, he was scared of Espinoza, who was much larger than him and
unreasonably angry about their prior interaction. He believed Espinoza
meant to harm him when Espinoza approached in a threatening manner. On
cross-examination, Morrison admitted he had prior convictions in 2008 for
possession of cocaine and illegal carrying of a weapon.
Tongon Price, Eddie Dean, Cindy McDole, Elizabeth Buchanan, and
Kiya Thomas were called by the defense. Each testified they worked
regularly with Morrison and witnessed many of Morrison’s business
interactions, but never saw him engage in any argumentative or disrespectful
behavior with his customers. Dean did say he witnessed some sort of
physical altercation between Morrison and Espinoza, but was unclear when
and where that may have occurred. Price and Thomas both testified they
regularly saw Morrison give produce away for free to children in the
neighborhoods where he did business.
Some of the testimony at trial was inconsistent. For example, Walker
insisted she did not remember discussing cigarettes with Morrison prior to
his verbal altercation with Espinoza; Morrison and Espinoza said they did.
Also, Walker maintained Espinoza was seated when Morrison struck him
3 with the metal table leg, while Morrison and Espinoza both testified he was
standing. Morrison testified Espinoza began walking toward him, requiring
him to pick up the table leg and swing it, while Espinoza testified he stood
up, but did not move from that spot when Morrison approached him with the
metal table leg.
The six-person jury unanimously convicted Morrison of aggravated
battery, a lesser and included offense of aggravated second degree battery.
SENTENCING
Prior to sentencing, Morrison filed a motion requesting the court
impose a minimum sentence, or suspension of sentence entirely, and
probation, arguing this was supported by his employment, his service as a
medic in the army, and the jury’s verdict of a lesser included offense. At
sentencing, the district court noted its obligation to consider the aggravating
and mitigating factors set out in La. C. Cr. P. art. 894.1. The court found a
term of imprisonment appropriate because Morrison’s conduct during the
commission of the offense manifested deliberate cruelty toward the victim,
actual violence was utilized in the commission of the offense, the offense
resulted in significant permanent injury and economic loss to the victim or
his family, and a dangerous weapon was used in the commission of the
offense. The district court found no mitigating factors as set out specifically
in the statute but noted it deemed Morrison’s apology sincere, and therefore
considered it mitigating. The district court then sentenced Morrison to six
years at hard labor, and also imposed a fine of $1,000, plus court costs, all to
be paid through inmate banking. Morrison was advised his conviction is
classified as a crime of violence.
4 Two motions to reconsider sentence were filed. The first, filed by
counsel, argued the six-year sentence was unconstitutionally excessive. The
second, pro se, argued the district court failed to consider Morrison’s
ownership and operation of his own business, his prostate cancer and current
treatment for related issues, and the high likelihood he would benefit from
probation based on his previously completed four-year probationary term.
He then filed a pro se motion to nullify the trial court’s ruling on counsel’s
motion to reconsider sentence as he had since terminated counsel. All three
motions were denied.
DISCUSSION
Morrison raises three assignments of error on appeal: the evidence
presented by the State at trial was insufficient to prove he committed an
aggravated battery, the six-year hard labor sentence imposed by the district
court was unconstitutionally excessive and not tailored to his individual
circumstances, and the district court erred in denying his motions for
reconsideration of sentence.
Sufficiency of the evidence
Morrison argues the evidence presented at trial was insufficient to
support his conviction for aggravated battery, pointing specifically to
inconsistencies in the testimony provided by Walker directly contradicting
his own testimony and that of Espinoza. Morrison argues Walker’s
testimony should be considered wholly unreliable as proof of what occurred,
and Colquitt’s testimony should be disregarded because she did not see
Morrison strike Espinoza. Morrison contends his own testimony proved he
acted in self-defense and reasonably believed he was in danger of being
5 harmed by Espinoza, who had a history of violence as evidenced by his
conviction for domestic abuse battery with strangulation. Morrison argues
this same evidence cannot be sufficient to prove he committed an aggravated
battery upon Espinoza because it shows his own actions were reasonable and
in defense of his person. In turn, the State argues the evidence at trial, when
viewed in a light most favorable to the prosecution, was more than sufficient
to sustain Morrison’s conviction for aggravated battery as all witnesses,
including Morrison, testified he struck Espinoza with a metal table leg,
which was clearly a dangerous weapon as evidenced by the injuries it
caused.
The standard of appellate review for a sufficiency of the evidence
claim in a criminal case is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v.
Tate, 01-1658 (La. 5/20/03), 851 So. 2d 921, cert. denied, 541 U.S. 905, 124
S. Ct. 1604, 158 L. Ed. 2d 248 (2004). The Jackson standard, now
legislatively embodied in La. C. Cr. P. art. 821, does not provide the
appellate court with a means to substitute its own appreciation of the
evidence for that of the fact finder. State v. Pigford, 05-0477 (La. 2/22/06),
922 So. 2d 517; State v. Galloway, 55,591 (La. App. 2 Cir. 4/10/24), 384 So.
3d 1167.
Where there is conflicting testimony concerning factual matters, the
resolution of which depends on a determination of the credibility of the
witnesses, the matter is of the weight of the evidence, not its sufficiency.
Tibbs v. Florida, 457 U.S. 31, 102 S. Ct. 2211, 72 L. Ed. 2d 652 (1982); 6 State v. Galloway, supra. The appellate court neither assesses the credibility
of witnesses nor reweighs evidence. State v. Kelly, 15-0484 (La. 6/29/16),
195 So. 3d 449; State v. Galloway, supra. Rather, the reviewing court
affords great deference to the jury’s decision to accept or reject the
testimony of a witness in whole or in part. State v. Robinson, 02-1869 (La.
4/14/04), 874 So. 2d 66, cert. denied, 543 U.S. 1023, 125 S. Ct. 658, 160 L.
Ed. 2d 499 (2004); State v. Galloway, supra.
An aggravated battery is a battery committed with a dangerous
weapon. La. R.S. 14:34(A). Whoever commits an aggravated battery shall
be fined not more than five thousand dollars, imprisoned with or without
hard labor for not more than ten years, or both. La. R.S. 14:34(B).
In order to prove Morrison committed an aggravated battery, the
prosecution needed to establish that he used a dangerous weapon in the
commission of a battery. By his own admission, Morrison picked up the
metal table leg and struck Espinoza in the head, causing a wound that
required staples and stitches. We find the evidence presented at trial was
sufficient to allow a reasonable person to conclude that Morrison committed
an aggravated battery upon Espinoza.
We next turn to Morrison’s theory of self-defense. The fact that an
offender’s conduct is justifiable, although otherwise criminal, shall
constitute a defense to prosecution for any crime based on that conduct. La.
R.S. 14:18. The use of force or violence upon the person of another is
justifiable when committed for the purpose of preventing a forcible offense
against the person provided that the force or violence used must be
reasonable and apparently necessary to prevent such offense. La. R.S.
14:19(A)(1)(a). 7 The jurisprudence of this court is that, in a nonhomicide case, the
burden of proof rests with the defendant to prove the defense by a
preponderance of the evidence. See, e.g., State v. Williams, 50,004 (La.
App. 2 Cir. 9/30/15), 178 So. 3d 1051, citing State v. Ford, 42,928 (La. App.
2 Cir. 2/13/08), 976 So. 2d 321, writ denied, 08-0605 (La. 10/3/08), 992 So.
2d 1010. The Louisiana legislature recently enacted La. C. Cr. P. art. 390,
effective August 1, 2024, which provides “where a defendant claims self-
defense as a justification for his actions, the State must prove beyond a
reasonable doubt the defendant did not act in self-defense.” This apparently
overrules our prior statement of the burden of proof in nonhomicide cases.
The legislature did not, however, state whether the new law was to be
applied retroactively; if so, this would raise the State’s burden of proof
against this defendant, Morrison. After consideration, we pretermit the issue
of retroactivity at this time, as we find that on this record the claim of self-
defense would fail under either standard.
The issue of self-defense requires a dual inquiry into whether the
force used was reasonable under the circumstances, and a subjective inquiry
into whether the force was apparently necessary. State v. Satterfield, 53,809
(La. App. 2 Cir. 3/3/21), 315 So. 3d 425; State v. Barron, 51,491 (La. App. 2
Cir. 8/9/17), 243 So. 3d 1178, writ denied, 17-1529 (La. 6/1/18), 243 So. 3d
1063; State v. Williams, supra.
Beyond his self-serving testimony, none of which detailed any actual
attempt by Espinoza to harm him, there was no evidence his actions were
reasonable or necessary. No other witnesses testified Espinoza threatened
Morrison. Further, while there were some inconsequential inconsistencies in
the testimony, they were too insubstantial to create reasonable doubt. 8 The testimony of Walker, Colquitt, and Espinoza refuted Morrison’s
claim of self-defense. This testimony, with the other evidence, was
sufficient to support the jury’s guilty verdict, under Jackson v. Virginia,
supra. This assignment of error is without merit.
Excessive sentence/Motions to Reconsider
Morrison argues his six-year hard labor sentence is unconstitutionally
harsh and excessive. He argues the district court inappropriately accepted
Espinoza’s testimony as to his injuries, in lieu of certified medical records,
and the court erred in considering facts as aggravating factors that are
already essential elements of the underlying crime. He further claims the
lack of a presentence investigation (“PSI”) report prevented the district court
from individually tailoring his sentence, leading the court to disregard his
personal history, employment history, or criminal history. Morrison
contends the district court also failed to consider any of the mitigating
factors he asserted in his presentencing motion as well as in his motions for
reconsideration of sentence. Morrison argues a sentence does not have to be
a maximum or near-maximum sentence to be unconstitutionally excessive
and that the district court was unduly harsh in sentencing him given his
history.
The State responds that the sentence imposed is not unconstitutionally
excessive given the seriousness of the crime, the location of the crime and
the proximity to bystanders, the extent of Espinoza’s injuries, and the
apparent escalation in Morrison’s criminal behavior from his previous
nonviolent convictions. The State also points out the trial court was well-
aware of Morrison’s personal, employment, and criminal history, as
Morrison himself provided these details at trial. 9 Appellate review of sentences for excessiveness is a two-pronged
inquiry. State v. Benavides, 54,265 (La. App. 2 Cir. 3/9/22), 336 So. 3d 114.
First, the record must show that the court complied with La. C. Cr. P. art.
894.1. The court need not list every aggravating or mitigating factor so long
as the record reflects that it adequately considered the guidelines. State v.
Benavides, supra. When the record shows an adequate factual basis for the
sentence imposed, remand is unnecessary even in the absence of full
compliance with the article. Id. No sentencing factor is accorded greater
weight by statute than any other factor. Id.
As to the first prong, the district court found all three factors listed in
La. C. Cr. P. art. 894.1(A) applicable to Morrison’s case, and explicitly
applied several of the aggravating factors listed in La. C. Cr. P. art.
894.1(B). Morrison’s conduct manifested deliberate cruelty to the victim,
actual violence was used in the commission of the offense, significant
permanent injury and financial loss were incurred by the victim, and a
dangerous weapon was used to commit the offense. As to mitigating factors,
the court found none but deemed Morrison’s apology to Espinoza sincere
and mitigating. The district court then imposed a midrange sentence of six
years’ imprisonment. It is apparent from the record the district court
adequately complied with La. C. Cr. P. art. 894.1.
The second prong is unconstitutional excessiveness. A sentence
violates La. Const. art. 1, § 20, if it is grossly out of proportion to the
seriousness of the offense or nothing more than a purposeless and needless
imposition of pain and suffering. State v. Benavides, supra. A sentence is
deemed grossly disproportionate if, when the crime and punishment are
viewed in light of the harm done to society, it shocks the sense of justice or 10 makes no reasonable contribution to acceptable penal goals. Id. The
sentencing court has wide discretion in imposing a sentence within statutory
limits, and such a sentence will not be set aside as excessive in the absence
of manifest abuse of that discretion. Id. The issue is not whether some other
sentence might have been more appropriate, but whether the district court
abused its discretion. Id.
On review, we find no abuse of the district court’s sentencing
discretion and no violation of La. Const. art. 1, § 20. The six-year sentence
is only midrange, clearly giving weight to Morrison’s individual
circumstances. Certainly, a six-year sentence does not shock the sense of
justice when considering the facts of this case and Morrison’s criminal
history. Morrison struck Espinoza in the head with a metal table leg,
causing a substantial head wound requiring medical treatment in the form of
staples and stitches. Espinoza described how his injuries have continued to
interfere with his ability to maintain employment and that his hearing was
permanently and substantially impaired. We find adequate support in the
record for the sentence imposed by the district court, and we find the
sentence imposed to be constitutional.
Similarly, we find no abuse of the trial court’s discretion in denying
Morrison’s motions to reconsider sentence. Though Morrison argued the
trial court failed to provide him with a sentence particularized to his
individual circumstances by not ordering a PSI, the trial court was aware of
Morrison’s history as he described it in detail at trial. Morrison’s motions to
reconsider failed to contain any information previously unknown to the trial
court at sentencing and were properly denied.
11 These assignments of error concerning Morrison’s sentence are
without merit.
Error Patent
A review of the record indicates there is an error patent regarding the
trial court’s imposition of a $1,000 fine and court costs. La. R.S. 14:34
authorizes the imposition of a fine of not more than $5,000 upon conviction
of the crime of aggravated battery. The trial court imposed a $1,000 fine on
Morrison, plus court costs, but the record contains no indication that a
determination of financial hardship was made as required by La. C. Cr. P.
art. 875.1.
The purpose of imposing financial obligations on an offender who is
convicted of a criminal offense is to hold the offender accountable for his
actions, to compensate victims for any actual pecuniary loss or costs
incurred in connection with a criminal prosecution, to defray the cost of
court operations, and to provide services to offenders and victims. La. C.
Cr. P. art. 875.1(A). These financial obligations should not create a barrier
to the offender’s successful rehabilitation and reentry into society. Id.
Financial obligations in excess of what an offender can reasonably pay
undermine the primary purpose of the justice system, which is to deter
criminal behavior and encourage compliance with the law. Id.
La. C. Cr. P. art. 875.1(C)(1) provides that the court shall conduct a
hearing to determine whether payment in full of the aggregate amount of all
the financial obligations to be imposed upon the defendant would cause
substantial financial hardship to the defendant or his dependents. However,
the defendant or the court may waive the judicial determination of a
12 substantial financial hardship required by the article. La. C. Cr. P. art.
875.1(C)(2).
La. C. Cr. P. art. 875.1 became effective on August 1, 2022, and,
although Morrison’s offense occurred before then, it is a procedural statute
that applies to all actions subsequent to its effective date. State v. Adams,
55,696 (La. App. 2 Cir. 5/22/24), 387 So. 3d 914; State v. Smith, 53,827 (La.
App. 2 Cir. 3/3/21), 315 So. 3d 407. As there is no evidence in the record
that Morrison or the district court waived the determination of financial
hardship, we must vacate the $1,000 fine, plus court costs, and remand the
matter to the district court for the required hearing.
CONCLUSION
For the reasons expressed, we affirm Timothy Morrison’s aggravated
battery conviction and the six-year hard labor sentence, but vacate the
$1,000 fine, plus court costs, and remand with instructions to conduct a
financial hardship hearing pursuant to La. C. Cr. P. art. 875.1.
AFFIRMED IN PART; VACATED IN PART; REMANDED.