Walters v. State

206 S.W.3d 780, 2006 Tex. App. LEXIS 9555, 2006 WL 3110045
CourtCourt of Appeals of Texas
DecidedNovember 3, 2006
Docket06-05-00014-CR
StatusPublished
Cited by10 cases

This text of 206 S.W.3d 780 (Walters v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walters v. State, 206 S.W.3d 780, 2006 Tex. App. LEXIS 9555, 2006 WL 3110045 (Tex. Ct. App. 2006).

Opinions

[782]*782OPINION

Opinion by

Justice ROSS.

John Arlin Walters was convicted by a jury for murder. The jury assessed punishment at thirty-two years’ imprisonment, and he was sentenced accordingly. Walters appeals, contending the trial court erred by: 1) refusing to allow him to introduce evidence contradicting the State’s evidence; 2) improperly instructing the jury at the guilt/innocence phase; 3) failing to grant a mistrial at the punishment phase when the State commented on Walters’ failure to testify; and 4) admitting evidence of expert opinions.

I. BACKGROUND

Walters shot and killed his older brother, Russell L. Walters, Jr. At the time, Walters was in his late fifties, and Russell1 was in his late sixties. The shooting was the climax of an apparent long-standing animosity between the two and occurred on a church parking lot after an argument over a water bill. That Walters shot his brother is not at issue. According to Walters, his brother approached Walters’ pickup truck while Walters was driving away from the parking lot. Russell followed alongside the pickup on foot, threatening his younger brother. Russell opened the pickup door and had his right hand behind his back. When he did, Walters shot him twice, once in the neck and once in the torso. The only question was whether Walters acted in self-defense. The jury failed to so find.

II. Improper Jury Instructions

Because the Court unanimously agrees that Walters’ second point of error requires reversal and remand for a new trial, we address it first. Walters contends the trial court improperly instructed the jury during the guilt/innocence phase of the trial. Specifically, he contends the court erred by failing to properly instruct the jury concerning threats made by the deceased and the proper consideration of the jury concerning such threats. He also contends the charge erroneously limited his self-defense by including language regarding provocation when there was no evidence to support such a charge.

A. Failure to Instruct on Threats by the Decedent

The entirety of the defense in this case was focused on self-defense. In its charge to the jury, the trial court gave a somewhat confusing, cut-and-paste, instruction on self-defense. Walters requested, and tendered to the court, a proper instruction concerning threats by the deceased:

You are instructed that where a defendant accused of murder seeks to justify himself on the grounds of threats against his own life, he is permitted to introduce evidence of the threats made, but the same shall not be regarded as affording justification for the offense unless it be shown that at the time of the killing, the person killed, by some act then done, manifested an intention to execute the threats so made and provided that a reasonable person in the defendant’s situation would not have retreated.

The trial court denied the request.

There is considerable evidence in the record supporting Walters’ request. Walters testified that he informed the sheriffs office in a telephone conversation that his brother had threatened him with a gun in the past. Jackie Ray Patrick, a business acquaintance of Walters, corroborated Walters’ testimony by stating that he was [783]*783present on two occasions when Russell pointed a firearm at Walters. Finally, Walters testified that his brother threatened him just before the killing. He testified that Russell told him, “I’m going to come looking for you, and you’re not going to like it,” and “I’m going to put a stop to you today, once and for all.”

A defendant is entitled to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of the trial court’s opinion about the credibility of the defense. VanBrackle v. State, 179 S.W.3d 708, 712 (Tex.App.-Austin 2005, no pet.).

Walters complains that the charge, as given, did not adequately inform the jury that apparent danger was to be measured from the standpoint of the defendant, and completely failed to instruct the jury that it could consider prior threats made by the decedent. When a jury considers whether a defendant acted in self-defense, it must “view the reasonableness of the defendant’s actions solely from the defendant’s standpoint.” Ex parte Drinkert, 821 S.W.2d 953, 955 (Tex.Crim.App.1991) (citing Bennett v. State, 726 S.W.2d 32, 37-38 (Tex.Crim.App.1986)). As the court stated in Bennett, the reasonableness of the defendant’s belief “must be judged from the standpoint of the accused at the instant he responds to the attack.” 726 S.W.2d at 37-38; Davis v. State, 104 S.W.3d 177, 181 (Tex.App.-Waco 2003, no pet.).2

That viewpoint necessarily includes verbal threats that occurred before, as well as at the time of, the incident at bar. The instruction on self-defense sent to the jury in this case does instruct the jury that the defendant may use deadly force to the degree he reasonably believes the deadly force is immediately necessary to protect himself, and then later defines a “Reasonable belief’ as “a belief that would be held by an ordinary and prudent man in the same circumstances as the actor.” It does not, however, contain any language explaining to the jury that it could, in its consideration of self-defense, consider verbal threats made by the decedent toward Walters. Further, the only mention of verbal provocation found in the instruction is a limitation on self-defense stating that the use of force “is not justified in response to verbal provocation alone.”3

As acknowledged by the Texas Court of Criminal Appeals in Ellis v. State, 811 S.W.2d 99 (Tex.Crim.App.1991), a defendant is entitled to a charge regarding verbal threats made by the victim toward the defendant — and not only those that occurred at the time of the shooting. See Barkley v. State, 152 Tex.Crim. 376, 214 S.W.2d 287 (1948) (cited by Ellis, 811 S.W.2d at 101, also noting threats on days before the killing).

The standard of review for errors in the jury charge depends on whether the defendant properly objected. Mann v. State, 964 S.W.2d 639, 641 (Tex.[784]*784Crim.App.1998); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (op. on reh’g); Gomick v. State, 947 S.W.2d 678, 680 (Tex.App.-Texarkana 1997, no pet.). If a proper objection was raised, reversal is required if the error “is calculated to injure the rights of defendant.” Almanza, 686 S.W.2d at 171. In other words, an error that has been properly preserved is reversible unless it is harmless. Id.

Counsel objected on these grounds and tendered a correct instruction. In light of the fact that self-defense was the only real issue before the jury, we hold that the trial court’s failure to specifically instruct the jury concerning prior verbal threats by the decedent was “calculated to injure the rights of the defendant” and was, therefore, harmful, and reversible error. We sustain Walters’ contention.

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Walters v. State
206 S.W.3d 780 (Court of Appeals of Texas, 2006)

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Bluebook (online)
206 S.W.3d 780, 2006 Tex. App. LEXIS 9555, 2006 WL 3110045, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walters-v-state-texapp-2006.