TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00230-CR
v.
The State of Texas, Appellee
NO. 0953916, HONORABLE TOM BLACKWELL, JUDGE PRESIDING
After summarizing the facts, we will review appellant's points of error in reverse order. Late in the evening, appellant was moving from one apartment to another. One of the last items appellant removed from the apartment he was vacating was his pistol, which he stuck under his belt. A young lady of appellant's acquaintance was returning to her apartment. She and appellant engaged in a conversation across the bed of his pickup. Several men were on the other side of the parking lot. Appellant had seen some of the men in the apartment complex at other times but he did not know them. While the young lady and appellant were talking, appellant thought the other men shouted some disparaging words in Spanish which were directed at him. Appellant testified that the men then asked him to come toward them and he did. The men, who appellant testified had been drinking, formed a circle around him. They taunted him in vulgar words. Appellant began to back up and the victim followed appellant and began punching him. Appellant was frightened by the men's words and actions and he testified he drew his pistol hoping to deter his assailant. His assailant lunged at appellant telling him he would take his gun away and kill him. Fearing for his life, appellant testified he fired the pistol twice in self defense. The shots were fatal to the victim who died in the hospital operating room. Three of the other four men who were in the group and who were relatives and friends of the victim testified. They testified the derogatory words they spoke were not directed at appellant but were directed at each other in fun. These witnesses testified the shooting of the victim was not provoked by the victim or by them. In a two-count indictment, appellant was charged with murder and with aggravated assault with a deadly weapon. The jury acquitted appellant of murder but found him guilty of aggravated assault with a deadly weapon.
Appellant's third point of error alleges that, "Following the acquittal for murder, there is insufficient evidence of aggravated assault under a theory plead in the indictment." In the second count of the indictment, the State alleged the appellant "did then and there, by using a firearm, a deadly weapon, knowingly, intentionally, and recklessly cause bodily injury to Jose Antero, by shooting Jose Antero with said firearm, a deadly weapon." Appellant attempts to analyze, explain, and reconcile the jury's reasoning and the various theories the jury may have had for acquitting him of murder, but convicting him of aggravated assault with a deadly weapon. It has been held that a defendant is not entitled to develop the mental process of a juror in reaching a verdict. Peak v. State, 522 S.W.2d 907, 910 (Tex. Crim. App. 1975); Adams v. State, 481 S.W.2d 884, 886 (Tex. Crim. App. 1972). The reasons and theories the jury may have used in its deliberations before acquitting him of murder and convicting him of aggravated assault with a deadly weapon are not important. The jury's verdict will be upheld if the evidence in the record supports the verdict. The trial court instructed the jury that if it did not find appellant guilty of murder beyond a reasonable doubt, it could find appellant guilty of aggravated assault if it found beyond a reasonable doubt that appellant, "without justification by using a deadly weapon, a firearm, intentionally or knowingly or recklessly caused bodily injury to Jose Antero, by shooting Jose Antero with said firearm, a deadly weapon." It is not disputed that appellant shot the victim twice and that the victim sustained serious bodily injury resulting in his death. This evidence is ample to support the jury's verdict finding appellant guilty of aggravated assault with a deadly weapon. Appellant's third point of error is overruled.
Appellant's second point of error alleges that, "the trial court misrepresented the law of self defense to the jury." To demonstrate his claimed error, appellant quotes part of the record. In closing argument, defense counsel attempted to read and explain the charge to the jury.
Defense counsel: But then in paragraph No. 9, a very important word, it says, "Upon the law of self-defense, you are instructed that a person is justified in using force against another when and to the degree he . . . " [At this point Mr. Williams attempted to clarify to the jury from whose perspective the reasonableness of the actor's belief should be judged. Appellant argued] . . . judged from the person's perspective, the actor's perspective--
Counsel for the State: Objection, Your Honor, that's a misstatement of the law. It's a reasonable man's perspective.
The Court: I sustain the objection.
Mr. Williams: ". . . when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use of force or attempted use of unlawful force."
At trial, appellant made no objection to preserve for review the error alleged in this point. To properly preserve an issue for appellate review, a defendant must make a timely request, objection, or motion, stating the specific grounds for the ruling he desires the trial court to make and obtain a ruling on his request, objection, or motion. Tex. R. App. P. 52(a); Tex. R. Crim. Evid. 103; see Ethington v. State, 819 S.W.2d 854, 858-59 (Tex. Crim. App. 1991); Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). Furthermore, appellant does not complain on appeal about the trial court's charge on self defense, except the complaint made in his first point of error, which we will discuss next. Appellant's second point of error was not preserved for review in the trial court and is therefore overruled.
In his first point of error, appellant asserts that the trial court erred, "in denying appellant's request for a jury instruction relating to Texas Penal Code Section 9.04."
§ 9.04 Threats as Justifiable Force
The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.
Tex. Penal Code Ann. § 9.04 (West 1994). The Practice Commentary explains some of the problems and some of the history of this provision.
PRACTICE COMMENTARY
Revised by Seth S. Searcy III and James R. Patterson
of the Austin Bar
The first sentence of this section equates threats of force or deadly force with the actual use of force or deadly force for purposes of the justification chapter. This is done because many threats constitute offenses (e.g., Section 22.01 (assault), 22.07 (terroristic threat)), and for justification to furnish a complete defense threats as well as the actual use of force or deadly force must be covered.
The second sentence appears aimed at preserving the principle of Penal Code art. 1267. That article excepted from the offense of deadly threat (art. 1265) threats made in self-defense. See, e.g., Dailey v. State, 436 S.W.2d 346 (Cr. App. 1968); Brown v. State, 154 S.W.2d 464 (Crim. App. 1941). Section 9.04 appears to go further, however, by equating deadly threats with nondeadly force, so long as the threat is intended only to frighten. This means, for example, that the mild necessity justifying the use of nondeadly force also justifies a deadly threat, provided, of course, it is merely conditional.
Without commenting on the policy decision represented, except to point out that the trouble with pointing pistols is that they go off, it should be noted that the second sentence of Section 9.04 is inartfully drafted. Assuming the sentence was intended to embody the Model Penal Code section to which its wording bears the closest resemblance, a better formulation would be: "The threat to use deadly force is justified, if the actor intends to create the apprehension that he will use deadly force only if necessary, if the use if nondeadly force would be justified under this chapter."
(West 1974, Penal Code Vol. 1 now replaced.). The commentators are correct, Section 9.04 was inartfully written. Its application in justification when a defendant is prosecuted for the offense of making threats "by the production of a weapon" is comprehensible. See, e.g., cases cited in the commentary and Barree v. State, 621 S.W.2d 776, 779 (Tex. Crim. App. 1981). But application of Section 9.04 to the prosecution of cases in which the defendant is prosecuted for offenses resulting from the gun going off are more difficult. See Kirkpatrick v. State, 633 S.W.2d 357, 358-59 (Tex. App.--Fort Worth 1982, pet. ref'd).
By its wording, Section 9.04 limits an actor's defense of justification for threatening to cause death or serious bodily injury by the production of a weapon to situations in which the actor's purpose is to create only the apprehension the actor will use deadly force if necessary. Here appellant's purpose was not limited to creating an apprehension he would use deadly force if necessary. According to appellant's testimony, he thought it necessary to shoot the victim in self defense. This created more than an apprehension that appellant would use deadly force. He used deadly force. Appellant's testimony entitled him to a jury charge on self defense. The trial court fully charged the law of self defense. We conclude appellant's rights were adequately protected by the charge given. The facts did not require the trial court to give the requested charge, and the court's refusal to do so was not error. In an attempt to show how the court's refusal to give the requested charge was harmful, appellant quotes from the prosecutor's argument. Appellant contends that because the court refused his requested charge on Section 9.04, he could as a matter of strategy elect not to object to the State's argument misstating the law. As we understand this argument, appellant is wrong. The proper course if the State misstated the law in argument was to make a timely objection to the State's argument. Appellant's first point of error is overruled.
The judgment of the trial court is affirmed.
Carl E. F. Dally, Justice
Before Justices Aboussie, Kidd and Dally*
Affirmed
Filed: July 24, 1997
Do Not Publish
* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).
EM>See, e.g., Dailey v. State, 436 S.W.2d 346 (Cr. App. 1968); Brown v. State, 154 S.W.2d 464 (Crim. App. 1941). Section 9.04 appears to go further, however, by equating deadly threats with nondeadly force, so long as the threat is intended only to frighten. This means, for example, that the mild necessity justifying the use of nondeadly force also justifies a deadly threat, provided, of course, it is merely conditional.
Without commenting on the policy decision represented, except to point out that the trouble with pointing pistols is that they go off, it should be noted that the second sentence of Section 9.04 is inartfully drafted. Assuming the sentence was intended to embody the Model Penal Code section to which its wording bears the closest resemblance, a better formulation would be: "The threat to use deadly force is justified, if the actor intends to create the apprehension that he will use deadly force only if necessary, if the use if nondeadly force would be justified under this chapter."
(West 1974, Penal Code Vol. 1 now replaced.). The commentators are correct, Section 9.04 was inartfully written. Its application in justification when a defendant is prosecuted for the offense of making threats "by the production of a weapon" is comprehensible. See, e.g., cases cited in the commentary and Barree v. State, 621 S.W.2d 776, 779 (Tex. Crim. App. 1981). But application of Section 9.04 to the prosecution of cases in which the defendant is prosecuted for offenses resulting from the gun going off are more difficult. See Kirkpatrick v. State, 633 S.W.2d 357, 358-59 (Tex. App.--Fort Worth 1982, pet. ref'd).
By its wording, Section 9.04 limits an actor's defense of justification for threatening to cause death or serious bodily injury by the production of a weapon to situations in which the actor's purpose is to create only the apprehension the actor will use deadly force if necessary. Here appellant's purpose was not limited to creating an apprehension he would use deadly force if necessary. According to appellant's testimony, he thought it necessary to shoot the victim in self defense. This created more than an apprehension that appellant would use deadly force. He used deadly force. Appellant's testimony entitled him to a jury charge on self defense. The trial court fully charged the law of self defense. We conclude appellant's rights were adequately protected by the charge given. The facts did not require the trial court to give the requested charge, and the court's refusal to do so was not error. In an attempt to show how the court's refusal to give the requested charge was harmful, appellant quotes from the prosecutor's argument. Appellant contends that because the court refused his requested charge on Section 9.04, he could as a matter of strategy elect not to object to the State's argument misstating the law. As we understand this argument, appellant is wrong. The proper course if the State misstated the law in argument was to make a timely objection to the State's argument. Appellant's first point of error is overruled.
The judgment of the trial court is affirmed.
Carl E. F. Dally, Justice
Before Justices Aboussie, Kidd and Dally*
Affirmed
Filed: July 24, 1997
Do Not Publish