In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00125-CR ______________________________
CHARLES EDWARD KIZER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Fifth Judicial District Court Cass County, Texas Trial Court No. 2005F00047
Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
In late February 2005, a family argument quickly escalated into violence at the Cass County mobile home of Charles Edward Kizer. Not long after Kizer's sister-in-law, Karen Jones, cut up his hot links, Kizer cut up her face and kicked her repeatedly. As a result, Karen sustained serious injuries including damage to her vision, and Kizer was ultimately convicted (1) for aggravated assault with a deadly weapon. On appeal, Kizer claims the trial court erred in refusing Kizer's requested jury instructions on (1) self-defense, (2) defense of property, and (3) necessity. We overrule Kizer's points of error and affirm the trial court's judgment.
The evening in question, Kizer and members of his family drove to Avinger, where they intended to eat dinner. Kizer, recovering from recent surgeries to his back and to remove a testicle, rode with his nephew, Robert Naquin. On the way to the restaurant, Kizer decided against attending the dinner when he saw who he thought was his nephew, Jerry Don Jones, and "Jerry Don" failed to wave at Kizer. Naquin described Kizer as "very upset" at the news that Jerry Don was apparently meeting the family for dinner. Kizer returned home and lay on the couch, while the rest of the group went to dinner, (2) shopped, and returned to Kizer's mobile home with Kizer's requested hot links.
Karen, wife of Kizer's brother Jerry Lee Jones, prepared a plate of hot links for Kizer and gave it to him. According to Karen and Naquin, Kizer started telling Jerry Lee that Kizer had seen Jerry Lee's son, Jerry Don, on the way to the restaurant. Jerry Lee said Kizer was mistaken, because Jerry Don had been in Mount Pleasant. Karen testified that Kizer did not care for Jerry Don; she said that, for more than a year, Kizer had been critical of how Karen and Jerry Lee dealt with Jerry Don. Karen and Naquin both said that, in the course of this conversation, Kizer suddenly threw his plate to the ground, smashing it, and began calling for Jerry Lee to "get up," apparently an invitation to fight. Kizer, though, testified that he and Jerry Lee were arguing over whether it had been Jerry Don that Kizer had seen. Kizer said Jerry Lee "got to raising his voice" and it irritated Kizer "worse and worse . . . because [he] was hurting" from his recent surgeries. Kizer testified that he got up from the couch once to confront Jerry Lee but that, when Jerry Lee stopped his comments, Kizer returned to the couch. Kizer said Jerry Lee then provoked him again, and Kizer said, "That second time I got up I wasn't going to stop."
Kizer said he was following Jerry Lee into the kitchen when Karen pushed Kizer, and then, when he tried to go around her, slapped Kizer's face. Kizer claimed he then "slapped her to the floor," and she kicked him in the testicle. This is when Kizer said he "lost it . . . . I ain't got but one testicle, and you can imagine how bad it hurt." Kizer did not remember pulling out his pocketknife, but thought it had happened after he said Karen kicked him--it was "just reflexes, I guess." Kizer admitted taking Valium, Hydrocodone, and Lomotil for his post-surgery pain.
In contrast, Karen and Naquin testified that Kizer, unprovoked, began yelling at Jerry Lee to "come on," Naquin said Kizer knocked Karen out of her chair to the ground. Karen said that she and Jerry Lee were trying to leave Kizer's house when Kizer pulled his knife and pushed Karen to the ground. Karen said Kizer pulled the knife out of his pocket "[r]ight after he jumped up." Karen said that, after she fell to the floor, Kizer kicked her "about 15 or 20 times." During this period, Kizer was waving his knife, jabbing it at Jerry Lee, and telling Karen she was going to die and he was going to put out her eye. In describing her injuries sustained during Kizer's attack, Karen explained she had been blind in her right eye her entire life, the result of a premature birth, and that Kizer's attack caused significant injuries to her left eye. Karen said she suffered bruises on her back, hips, and legs, as well as the cuts to her face. She received seventeen stitches to the cuts around her eye and suffered a partial loss of vision. As a result of the injuries she sustained at the hand of Kizer, Karen said, "I can't hardly see out of my [left] eye. Everything is blurry, and I'm blind in my right eye." Karen acknowledged kicking Kizer, from her position on the floor, in an attempt to escape from his attack.
When asked if he had had problems with his family before, Kizer answered only regarding in childhood. Karen said that, before this attack, she had never had problems with Kizer.
(1) Self-Defense Justification Is Not Raised by the Evidence
Kizer first complains of the trial court's refusal to include in the jury charge an instruction on self-defense. A defendant is entitled to an instruction on self-defense if evidence raises the issue, regardless of whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of the defense. Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996); Hill v. State, 99 S.W.3d 248, 250 (Tex. App.--Fort Worth 2003, pet. ref'd).
A reviewing court must view the evidence or testimony in a light most favorable to the appellant. Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984). But the instruction is not required if the testimony or other evidence viewed in the light most favorable to the appellant does not establish self-defense. See Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999) (standard of review for defensive instructions). The defendant's testimony alone may be sufficient to raise a defensive theory requiring a charge. Dyson, 672 S.W.2d at 463.
While the requested instruction Kizer presented to the trial court described the use of ordinary force under Section 9.31(a) of the Texas Penal Code, Kizer exhibited deadly force when he knifed Karen in the face--force which would require a different instruction under Section 9.32, an instruction Kizer did not request. See Tex. Penal Code Ann. §§ 9.31(a), 9.32 (Vernon 2003).
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) (Vernon 2003). Karen required seventeen stitches and suffered a loss of vision in an eye. Such injuries qualify as serious bodily injury. See Bruno v. State, 163 Tex. Crim. 540, 295 S.W.2d 211, 213 (1956) (where testimony detailed eye and facial lacerations and threat to vision, finding of serious bodily injury justified).
We look at the end result of the act, and if facts are such that the victim dies or is seriously injured, then, by definition, the force used was deadly; and, in such an event, the evidence does not justify use of a nondeadly force instruction under Section 9.31(a) of the Texas Penal Code. Ferrel v. State, 55 S.W.3d 586, 591-92 (Tex. Crim. App. 2001) (weapon, full beer bottle, caused death; Ferrel used deadly force); Denman v. State, 193 S.W.3d 129, 135 (Tex. App.--Houston [1st Dist.] 2006, pet. ref'd) (complainant in persistent vegetative state, therefore suffered "serious bodily injury"; appellant necessarily used deadly force and was not entitled to application paragraph as to nondeadly force defense) (citing Tex. Penal Code Ann. § 1.07(a)(46) (Vernon Supp. 2006) (defining "serious bodily injury" as bodily injury that creates a substantial risk of . . . any protracted loss or impairment of the function of any bodily member or organ"). When the evidence fails to raise a defensive issue, the trial court commits no error in refusing a requested instruction. Kunkle v. State, 771 S.W.2d 435, 444 (Tex. Crim. App. 1986). Because Kizer used deadly force, (3) yet requested only an ordinary force instruction, there was no error.
We overrule the first point of error.
(2) Defense of Property Justification Is Not Raised by the Evidence
Kizer also asked the trial court to instruct the jury on a justification based on his defense of property. For such an instruction, there must have been some evidence that Kizer was in lawful possession of the land in question and that he reasonably believed force was immediately necessary to prevent or stop another person from trespassing on that land or unlawfully interfering with Kizer's property. See Tex. Penal Code Ann. § 9.41 (Vernon 2003).
There was no dispute Kizer owned, or at least was in control of, the mobile home where the assault occurred. Kizer admitted he had invited the family to his house. They honored his request to bring him dinner after they had dined out, and Karen cut up his hot links and served them to him. Kizer testified that his brother was arguing with him, and Kizer told Jerry Lee to "leave him the hell alone." There was no evidence before the trial court that Jerry Lee or Karen were asked to leave, were trespassing, or had exceeded the scope of their invitation. In fact, there is evidence that Karen and Jerry Lee were trying to leave the premises when the altercation occurred.
We incorporate our earlier discussion regarding Kizer's use of deadly force. Here, again, Kizer requested an instruction justifying the use of ordinary force in protection of property, under Section 9.41 of the Texas Penal Code, not deadly force, under Section 9.42. Again, because he used deadly force, he was not entitled to an ordinary force instruction.
We overrule this point of error.
(3) Necessity Justification Is Not Raised by the Evidence
The trial court also refused to include in the jury charge language on the defense of necessity. In order to be entitled to a jury instruction on the defense of necessity, a defendant is required to present evidence that he or she reasonably believed a specific harm was imminent. See Tex. Penal Code Ann. § 9.22(1) (Vernon 2003); Johnson v. State, 650 S.W.2d 414, 416 (Tex. Crim. App. 1983); Brazelton v. State, 947 S.W.2d 644, 648 (Tex. App.--Fort Worth 1997, no pet.). Harm is "imminent" when there is an emergency situation and it is "immediately necessary" to avoid that harm. Jackson v. State, 50 S.W.3d 579, 595 (Tex. App.--Fort Worth 2001, pet. ref'd). A defendant claiming the defense of necessity must present evidence that he or she reasonably believed their criminal conduct was immediately necessary to avoid the imminent harm. See Tex. Penal Code Ann. § 9.22(1).
Here, Kizer's version of events was that, after Karen struck him and he "slapped her to the floor," she kicked him in the testicle. Again, Kizer offered no testimony to suggest that he had a reasonable belief that imminent harm was upon him or anyone else. Even if Karen had kicked him as he described, there was no evidence that he believed she was poised to inflict more harm. Without such evidence, the defense of necessity was not raised and the trial court did not err in refusing the instruction. We overrule this point of error.
We affirm the judgment of the trial court.
Josh R. Morriss, III
Chief Justice
Date Submitted: April 13, 2007
Date Decided: June 12, 2007
Do Not Publish
1. The jury assessed his punishment at four years' confinement and a $500.00 fine.
2. The group ultimately went to Mount Pleasant for their activities, since Kizer had been the only one who had wanted to eat in Avinger.
3. Kizer did not ask for an instruction on the use of deadly force. He would not have been entitled to that instruction, though, because there was no evidence anyone threatened him with deadly force. See Tex. Penal Code Ann. § 9.32. Kizer testified that Karen struck him before he struck her. He did not deny kicking her repeatedly or cutting her face with his pocketknife. He said he pulled his knife on her only after she kicked him in the testicle; he said that it was reflex that caused him to pull out the knife and that he did not specifically remember pulling it. Like the trial court, we find no evidence that Kizer had a reasonable belief that he needed to resort to deadly force in response to Karen's pushing and slapping him or even kicking him once in the groin area.
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00213-CR
______________________________
ARNOLD NELSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 202nd Judicial District Court
Bowie County, Texas
Trial Court No. 09F0313-202
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
With a search warrant in hand, SWAT officers, accompanying officers from the Bi-State Narcotics Task Force, knocked on the door of a suspected drug house owned by Adrian Jackson in Bowie County and announced their presence. When no one responded, a battering ram was used to gain entry into the residence. Once officers were inside, they found Arnold Nelson on or near the living room couch, six feet away from a toilet paper rollcontaining 6.35 grams of crack cocaine worth approximately $700.00 to $800.00on the living room floor. Officers also found an unidentified male in a back bedroom and an unidentified female in a bathroom attempting to dispose of a small amount of crack cocaine in the toilet.
A jury convicted Nelson of possessing cocaine in an amount of four grams or more but less than 200 grams. Pursuant to a plea of true to an enhancement allegation, Nelson was assessed a $10,000.00 fine and was sentenced to fifty years incarceration in the Texas Department of Criminal JusticeInstitutional Division. Nelsons sole point of error on appeal questions the legal and factual sufficiency of the evidence supporting his conviction. We affirm the trial courts judgment.
We no longer can address a factual-insufficiency claim. In a very recent plurality opinion, the Texas Court of Criminal Appeals found no meaningful distinction between the Jackson v. Virginia legal-sufficiency standard and the Clewis[1] factual-sufficiency standard, and these two standards have become indistinguishable. Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at *8 (Tex. Crim. App. Oct. 6, 2010) (4-1-4 decision). Further, a proper application of the Jackson v. Virginia legal-sufficiency standard is as exacting a standard as any factual-sufficiency standard. See id. at *11. In a concurring opinion, Judge Cochran pointed out that the United States Supreme Court has rejected a legal sufficiency test that requires a finding that no evidence supports the verdict because it affords inadequate protection against potential misapplication of the reasonable doubt standard in criminal cases. Id. at *16 (Cochran, J., concurring). Rather than meeting a mere no evidence test, legal sufficiency is judged not by the quantity of evidence, but by the quality of the evidence and the level of certainty it engenders in the fact-finders mind. Id. at *17. Since the Texas Court of Criminal Appeals has now abolished factual-sufficiency review, we need not address Nelsons challenge to the factual sufficiency of the evidence.
In evaluating the legal sufficiency of the evidence supporting Nelsons conviction, we review the evidence, both properly and improperly admitted, in the light most favorable to the jurys verdict to determine whether any rational jury could have found the essential elements of possession of more than four but less than 200 grams of cocaine beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.Texarkana 2010, pet. refd) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). Based on the Brooks pluralitys description of the new application of legal sufficiency review under Jackson as rigorous and its statement that the use by reviewing courts of the factual sufficiency standard in tandem with the legal sufficiency standard may have skewed its proper application, it appears that the Court is attempting to refocus the application of the legal sufficiency standard from the quantity to the quality of the evidence presented. 2010 WL 3894613, at *14. 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 31819).
The sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Under a hypothetically correct jury charge, the State was required to prove that (1) Nelson exercised actual care, control, and management[2] over the cocaine; (2) in an amount of four grams or more but less than 200 grams; and (3) Nelson knew the substance in his possession was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); Murphy v. State, 200 S.W.3d 753, 761 (Tex. App.Texarkana 2006), affd, 239 S.W.3d 791 (Tex. Crim. App. 2007); see Tex. Health & Safety Code Ann. § 481.115(a)(d) (Vernon 2010).
Before the raid, neighbors had complained to police about drug activity at the residence and the in-and-out traffic at the house. The Bi-State Narcotics Task Force set up a daily surveillance of the residence for approximately two weeks and used confidential informants to obtain narcotics from various individuals inside the residence. Officers observed Nelson, who lived on the same street a few blocks away, at Jacksons residence [p]retty much on a daily basis.
On the day of the raid, Nelsons older blue pickup truck was parked in the driveway. Once inside, officers found things as we stated above, with Nelson in close proximity to a significant quantity of crack cocaine.
Mere presence in the vicinity of a controlled substance is insufficient to show knowing possession. Evans v. State, 202 S.W.3d 158, 16162 (Tex. Crim. App. 2006). When combined with other direct or circumstantial evidence, however, proximity may be sufficient to establish beyond a reasonable doubt a persons possession of a controlled substance. Id. Where, as here, Nelson was not in exclusive possession of the place where the cocaine was found, additional independent facts and circumstances must be developed in order to raise a reasonable inference of Nelsons knowledge and control of the contraband. Poindexter, 153 S.W.3d at 406. This rule protects an innocent bystander from conviction merely because of proximity to someone elses drugs. Evans, 202 S.W.3d at 16162.
The evidence linking Nelson to the cocaine must establish, to the requisite level of confidence, that [Nelsons] connection with the drug was more than just fortuitous. Poindexter, 153 S.W.3d at 40506. The following is a nonexclusive list of links that have been found to be sufficient, either singly or in combination, to establish a persons possession of contraband: (1) the defendants presence when a search is conducted; (2) whether the contraband was in plain view; (3) whether the contraband was in close proximity to, or accessible by, the defendant; (4) whether the place where the contraband was found was enclosed; (5) whether the defendant was under the influence of narcotics when arrested; (6) whether the defendant possessed other contraband or narcotics when arrested; (7) whether the defendant made incriminating statements when arrested; (8) whether the defendant attempted to flee; (9) whether the defendant made furtive gestures; (10) whether there was an odor of contraband present at the scene; (11) whether other contraband or drug paraphernalia were present; (12) whether the defendant owned or had a right to possess the place where the contraband was found; (13) whether the defendant was found with a large amount of cash; (14) whether the defendant possessed weapons; and (15) whether conduct of the defendant indicated a consciousness of guilt. Evans, 202 S.W.3d at 162 n.12; Hargrove v. State, 211 S.W.3d 379, 38586 (Tex. App.San Antonio 2006, pet. refd). The number of links is not dispositive; rather, we look to the logical force of all of the evidence, direct and circumstantial. Evans, 202 S.W.3d at 162.
Nelson was present when the search warrant on Jacksons residence was executed. His presence at the residence nearly every day for a period of two weeks, even when Jackson was not present, would allow the fact-finder to conclude he had a right to exercise care, custody, control, or management over Jacksons residence for certain periods of time. Although officers testified that the contraband was not in plain view, it was within approximately six feet of Nelson. Nelson was the only person found in the same room as the cocaine, and the drugs were in close proximity to, and accessible by, him. Other contraband was present in the residence, although in the unidentified females presence. The jury heard that the female was likely a user and that Nelson was likely a dealer. Officers testified that the living room table contained a box of plastic bags and a digital scale, items which, based on officers experience, were used to deal drugs. The unemployed Nelson was found with $2,915.00 in his wallet, an amount consistent with dealing drugs, though his mother claimed that $2,500.00 of that sum belonged to her. No significant amount of money was found on the unidentified male or female. After Nelsons arrest, a canine unit alerted on Nelsons truck, and another digital scale was recovered. This evidence demonstrated links 1, 3, 6, 11, 12, and 13 from the above list.
Although officers did not claim there was an odor of contraband and Nelson was not under the influence of drugs when arrested, did not possess weapons, and did not make incriminating statements, furtive gestures, or any attempt to flee, we find the evidence sufficient for a rational, fact-finding jury to have found beyond a reasonable doubt that Nelson knowingly possessed cocaine in an amount of four grams or more but less than 200 grams. We overrule Nelsons sole point of error.
We affirm the trial courts judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: November 10, 2010
Date Decided: November 12, 2010
Do Not Publish
[1]Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).
[2]Possession is defined as actual care, custody, control, or management. Tex. Penal Code Ann. § 1.07(a)(39) (Vernon Supp. 2010).