In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-02-054 CR
____________________
KYE LEE CAMPBELL, SR., Appellant
V.
THE STATE OF TEXAS, Appellee
Jefferson County, Texas
Trial Cause No. 84486
Appellant was convicted of the murder of John Willie "Buddy" Andrepont, Jr. The trial court assessed punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for life. The lone appellate issue contends the trial court erred in refusing appellant's requested jury instruction on self-defense. The requested instruction refused by the trial court was included as a court exhibit and reads as follows:
SELF DEFENSE:
It is a defense to this prosecution if the defendant's conduct was justified by law.
FORCE:
A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's actual or apparent use or attempted use of unlawful force.
DEADLY FORCE:
A person is justified in using deadly force against another if he would be justified in using force against the other, and in addition: (1) A reasonable person in his situation would not retreat; and (2) when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other's actual or apparent use or attempted use of unlawful deadly force.
REASONABLE BELIEF:
Reasonable belief means a belief that would be held by an ordinary and prudent person in the same circumstances as the defendant.
SELF-DEFENSE CHARGE:
Therefore, even if you believe from the evidence beyond a reasonable doubt or if you have a reasonable doubt thereof that the defendant Kye Lee Campbell, Sr., used deadly force as alleged in the indictment, but that on such occasion the defendant reasonably believed this use of deadly force was immediately necessary to protect himself against the victim's actual or apparent use or attempted use of unlawful deadly force and; (1) a reasonable person in the defendant's situation would not have retreated and (2) that the defendant reasonably believed that the use and degree of deadly force he used was immediately necessary to protect himself against the victim's actual or apparent use or attempted use of unlawful deadly force, you should find the defendant not guilty.
However, if you believe from the evidence beyond a reasonable doubt that, at the time and place in question, the defendant either; (1) did not reasonably believe that the victim was actually or apparently using or attempting to use deadly force against him, or (2) that a reasonable person in the defendant's situation would have retreated, you find against the defendant on this plea of justification.
The requested instruction seems to be in substantially correct form based upon the language contained in Tex. Pen. Code Ann. §§ 9.31-9.32 (Vernon 2003). Self-defense, being a justification, the burden of producing the evidence at trial was on appellant. See Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991). An accused requesting an instruction on self-defense with deadly force must show: (1) he was justified in using force; (2) a reasonable person in his situation would not have retreated; and (3) he reasonably believed the use of deadly force was immediately necessary to protect himself against another's use or attempted use of unlawful deadly force, or to prevent the imminent commission of specified violent crimes. See Tex. Pen. Code Ann. § 9.32 (Vernon 2003). However, a defendant is not required to testify in order to be entitled to raise self-defense; self-defense may be raised by the testimony of other witnesses describing the circumstances of the offense. See Smith v. State, 676 S.W.2d 584, 586-87 (Tex. Crim. App. 1984). "Thus, in order to justify the submission of a charge to the jury on the issue of self-defense, there must be some evidence in the record to show that the defendant was in some apprehension or fear of being the recipient of the unlawful use of force from the complainant." Id. at 585.
In the instant case, appellant did not testify. Neither party introduced evidence identifying any witness to the fatal event other than the victim and appellant. The record does include the words uttered by appellant to his son in a conversation following the fatal events to the effect that appellant had been shot, and that he [appellant] had "stabbed Buddy." Through the various witnesses called during the trial, evidence was elicited concerning the violent nature of the victim and his heavy drinking habits. Nevertheless, we have absolutely no evidence as to the state of mind of appellant when he stabbed the victim. Neither is there evidence in the record that the victim was using any force, much less deadly force, against appellant during their confrontation. Although the evidence is not disputed that appellant received a gunshot wound to his face, there is no evidence that the victim inflicted the wound. Any evidence of the "retreat" variable and whether appellant's conduct was "immediately necessary" are also completely missing from the record. Finally, even if we could infer that the victim did inflict the gunshot wound to appellant, we have no evidence that such "deadly force" was "unlawful" when inflicted. In fact, the inference would be to the contrary as it was appellant who showed up at the victim's house apparently unannounced in order to confront the victim. History appeared to be repeating itself from appellant's actions of the night before when he went to the victim's house, kicked the door in, and seriously assaulted the victim.
At any rate, virtually all of the actual events that took place at the victim's home between appellant and the victim that concluded with the victim's death are pure speculation from the state of the record before us. As we have noted before, Chapter Nine of the Texas Penal Code is entitled, "Justification Excluding Criminal Responsibility," and sets out "defenses," such as "necessity," "public duty," and "self-defense," which have traditionally been recognized as justifications for conduct that would otherwise be criminal. See Gilmore v. State, 44 S.W.3d 92, 96-97 (Tex. App.--Beaumont 2001, pet. ref'd). The language of sections 9.31 and 9.32 is incident-specific. In order for appellant to have availed himself of the "self-defense" justification for his conduct toward the victim, he needed to provide evidence of the specific circumstances surrounding that conduct. The record before us provides no evidence of the appropriately apprehensive mental state of appellant nor the specifics of either his conduct or the victim's conduct that led up to the murder. All this is to say that we find no error in the trial court's refusal of appellant's proposed self-defense instruction to the jury. The issue is overruled, and the judgment and sentence of the trial court are affirmed.
AFFIRMED.
PER CURIAM
Submitted on April 29, 2003
Opinion Delivered May 7, 2003
Do Not Publish
Before McKeithen, C.J., Burgess and Gaultney, JJ.