NUMBER 13-03-00081-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
DUSTIN JOHN LOWRY, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 404th District Court of Cameron County, Texas.
DISSENTING MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Yañez and Baird (1)
Dissenting Memorandum Opinion by Justice Baird
While I agree with the majority that the evidence is legally and factually sufficient to support the jury's verdict, I believe the trial judge erred by instructing the jury on provoking the difficulty. Accordingly, I would sustain the fourth and sixth points of error and reverse the trial court's judgment. Because the majority does not, I respectfully dissent.
I. PROCEDURAL POSTURE.
On March 3, 2005, the trial judge appointed a special prosecutor to represent the State in this appeal. See Tex. Code Crim. Proc., art. 2.07. However, the special prosecutor has failed to file a reply brief. Under Texas Rule of Appellate Procedure 38.3, the State's reply brief is not a condition precedent to our resolution of this appeal. See Tex. R. App. P. 38.3. When confronted with this situation, we treat the State's failure to file a brief as a confession of error. Siverand v. State, 89 S.W.3d 216, 220 (Tex. App.-Corpus Christi 2002, no pet.). Pursuant to Siverand, we will review appellant's points of error and limit any opposing arguments to those advanced by the State in the trial court. Id.
II. BACKGROUND AND FACTUAL SUMMARY.
The evidence shows that during a fight on a beach appellant fatally stabbed the decedent with a knife. Appellant admitted to the stabbing but claimed he acted in self-defense. All of the surviving parties to the fight and several bystanders testified. Their testimony was often inconsistent and contradictory.
During Spring Break of 2002, appellant and several of his friends were at Coca Cola beach on South Padre Island. They had a video camera which they left idle as they played on the beach. The decedent, his wife, Eneida Gonzalez, and their friend, Ramon Salazar, were also at that beach. They saw the camera, picked it up and continued leaving the beach. Susan McRae, who was also at the beach, told appellant's party that the decedent's party had taken the camera. Appellant's party confronted the decedent's party in an effort to retrieve the camera. A fight ensued: appellant fought the decedent; and his friends fought Salazar, the decedent and/or Gonzalez.
Gonzalez saw appellant pull a knife and wave it at the decedent who was unarmed. She saw the decedent walk away from the melee toward the ocean but later saw the decedent on the ground fighting with appellant. Gonzalez attempted to break up the fight between the decedent and appellant. As the fight ended, she heard appellant say, "That's what you get for stealing." Another witness saw the decedent being stabbed. The evidence is undisputed that appellant was the only person with a knife. After the melee appellant stated that he had "shanked" the decedent. The coroner testified the decedent died from a stab wound to the chest. (2)
III. PROVOKING THE DIFFICULTY.
The trial judge instructed the jury on the law of provoking the difficulty. Appellant contends that instruction was erroneous in two separate respects: (1) it was not raised by the evidence; and (2) it did not apply the law of provoking the difficulty to the facts of the case.
A. Provoking the Difficulty Was Not Raised by the Evidence.
The doctrine of provocation is codified in Section 9.31(b)(4) of the Penal Code. A charge on provocation is required when there is sufficient evidence (1) that the defendant did some act or used some words which provoked the attack on him, (2) that such act or words were reasonably calculated to provoke the attack, and (3) that the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other. Smith v. State, 965 S.W.2d 509, 513 (Tex. Crim. App. 1998). An instruction on provocation should only be given when there is evidence from which a rational jury could find every element of provocation beyond a reasonable doubt. Id.
The first element, that the defendant did some act or used some words which provoked the attack on him, triggers the inquiry into whether the issue of provocation may be present in the case. Absent any evidence that an act or words of the defendant caused the attack on him, the case merely involves the question of which of the two parties used unlawful force. Id.
The second element of provoking the difficulty is that the defendant's acts or words were reasonably calculated to provoke the attack. This ensures that a defendant will not lose his right of self-defense over acts or words which cause an unwarranted attack. An act may actually cause the attack on the defendant, but if it was not reasonably calculated to do so, the defendant will not lose his right of self-defense. Id.
The third element requires that the act was done, or the words were used, for the purpose and with the intent that the defendant would have a pretext for killing the victim. Even though a person does an act, even a wrongful act, which does indeed provoke an attack by another, if he had no intent that the act would have such an effect as part of a larger plan of doing the victim harm, he does not lose his right of self-defense. Id.
None of these three requirements are present in the instant case. Undisputably, the act which "provoked" this altercation was the taking of the camera by the decedent's party. Appellant's party was not aware of this until notified of the taking by Susan McRae. (3) There is no evidence that appellant spoke any words or engaged in any act that caused the decedent to attack. (4) In fact, there is no evidence that the decedent ever attacked appellant. Since there were no such words or acts by appellant and no attack by appellant, clearly appellant did nothing that was reasonably calculated to provoke the attack. Consequently, the case involved only the question of whether appellant or the decedent used unlawful force. Finally, there is no evidence appellant engaged in conduct with the intent that appellant would have a pretext for killing the decedent. (5) Consequently, the trial judge erred in instructing the jury on provoking the difficulty.
The question is now one of harm stemming from the erroneous instruction. In the instant case, the charge was read to the jury and then the trial judge recessed the proceedings for lunch. But before the closing arguments were presented appellant objected to the provocation instruction and lodged other objections to the charge. The judge entertained those, heard the State's responding arguments and overruled each objection. Conceivably, this presents an issue of whether appellant's objections were timely. Tex. Code Crim. Proc., art. 36.14 ("Before said charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections thereto ..." Emphasis supplied.) Accordingly, I will consider whether the error caused egregious harm. Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985). Errors which result in egregious harm are those which affect "the very basis of the case," deprive the defendant of a "valuable right," or "vitally affect a defensive theory." Id., 686 S.W.2d at 172. Direct evidence is not required to establish egregious harm. Castillo-Fuentes v. State, 707 S.W.2d 559, 563, n. 2 (Tex. Crim. App. 1986).
The instruction was harmful for each of those reasons. The evidence clearly established that the decedent was killed by appellant. The only issue before the jury was whether the fatal act was criminal or justified as self-defense. Provoking the difficulty is a concept in criminal law which acts as a limitation or total bar on a defendant's right to self-defense. Smith, 965 S.W.2d at 512 (emphasis supplied) ("[I]f the defendant employs provocation with intent to assault the victim, and provokes an attack and makes an assault, then self-defense is lost as to the assault."). The erroneous instruction on provoking the difficulty affected the very basis of the case, deprived appellant of the valuable right, and vitally affected the theory of self-defense. (6) Accordingly, I would find the error was egregious and sustain the sixth point of error.
B. Failure to Apply the Law to the Facts of the Case.
Additionally, I would sustain the fourth point of error which contends the trial judge failed to apply the law of provoking the difficulty to the facts of the case. When this objection was raised in the trial court, the State responded that the instruction contained in the charge was "right out of the Code" and, therefore, entirely proper.
In Smith v. State, 411 S.W.2d 548 (Tex. Crim. App. 1967), the defendant made the same arguments -- that the trial judge erred in instructing on provoking the difficulty and in failing to apply that instruction to the particulars of the case. The Smith Court held:
We need not determine whether provoking the difficulty should have been given, for in charging only abstractly on the law of provoking the difficulty the learned trial judge fell into error. Carter v. State, 37 Tex. Crim. 403, 35 S.W. 378; Franklin v. State, 34 Tex. Crim. 286, 30 S.W. 231; Morgan v. State, 34 Tex. Crim. 222, 29 S.W. 1092; Saens v. State, Tex.Cr.App., 20 S.W. 737.
Since a charge on provoking the difficulty is a limitation on the law of self-defense, the charge on provocation should cover the particular facts in evidence and should be so worded as to preclude the jury from misapplying it. Mason v. State, 88 Tex. Crim. 642, 228 S.W. 952; Sorrell v. State, 74 Tex. Crim. 505, 169 S.W. 299.
The danger of charging only abstractly on provoking the difficulty
without telling the jury the nature and quality of the act or acts which would
operate to limit the right of self-defense or the extent to which the right would
be abridged is well described in Morgan v. State, supra.
Id. at 552.
For the reasons stated in the harm analysis above, I would also find the error to have caused egregious harm. Almanza, supra. Certainly, the argument advanced by the State in the trial court does nothing to alter this conclusion. Siverand, 89 S.W.3d at 220. Accordingly, the fourth point of error should be sustained.
IV. CONCLUSION.
For the foregoing reasons, I would sustain the fourth and sixth points of error, and reverse the judgment of the trial court. Because the majority does not, I respectfully dissent.
CHARLES F. BAIRD,
Justice
Do not publish.
Tex. R. App. P. 47.2(b).
Dissenting Memorandum Opinion delivered
and filed this the 7th day of February, 2008.
1. Retired Justice Charles Baird assigned to this Court by the Chief Justice of the Supreme Court of
Texas pursuant to the government code. See Tex. Gov't Code Ann. § 74.003 (Vernon 2005).
2. 3. 4. 5. 6.