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Green v. State

Court of Appeals of Texas, Fourteenth District

August 6, 2019


          On Appeal from the 248th District Court Harris County, Texas Trial Court Cause No. 1541800

          Panel consists of Justices Wise, Zimmerer, and Spain.


          Ken Wise Justice

         A jury found appellant guilty of murder and assessed punishment at fifty years' confinement. In three issues, appellant contends that (1) the trial court erred by excluding communicated character evidence during the guilt-innocence phase of the trial, (2) the evidence is insufficient to support his conviction, and (3) the trial court erred by admitting evidence of appellant's extraneous offenses during the punishment phase. We affirm.

         I. Sufficiency of the Evidence

         We first address appellant's second issue concerning the sufficiency of the evidence. See, e.g., Price v. State, 502 S.W.3d 278, 281 (Tex. App.-Houston [14th Dist.] 2016, no pet.). Appellant contends that the evidence is insufficient because the jury's rejection of his claim of self-defense is not supported by the evidence.

         A. Legal Principles

         In a sufficiency review, we consider all of the evidence in the light most favorable to the jury's verdict to determine whether, based on that evidence and reasonable inferences therefrom, any rational juror could have found the essential elements of the crime beyond a reasonable doubt. Balderas v. State, 517 S.W.3d 756, 765-66 (Tex. Crim. App. 2016). We defer to the jury's responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. at 766. The jury is the sole judge of the credibility and weight to be attached to witness testimony, and we must defer to the jury's resolution of conflicting inferences that are supported by the record. See id.

         An actor is justified in using deadly force if, among other things, the actor reasonably believes deadly force is immediately necessary to protect the actor against another's use or attempted use of unlawful deadly force. See Morales v. State, 357 S.W.3d 1, 4 (Tex. Crim. App. 2011) (citing Tex. Penal Code § 9.32(a)(2)(A)). A defendant has the initial burden to bring forth evidence in support of a claim of self-defense. See Dearborn v. State, 420 S.W.3d 366, 372 (Tex. App.-Houston [14th Dist.] 2014, no pet.) (citing Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003)). Once this burden is met, the State must disprove the defense beyond a reasonable doubt. Hernandez v. State, 309 S.W.3d 661, 665 (Tex. App.-Houston [14th Dist.] 2010, pet. ref'd) (citing Zuliani, 97 S.W.3d at 594). A jury's verdict of guilty is an implicit finding rejecting the defendant's self-defense theory. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).

         Accordingly, when an appellant challenges the sufficiency of the evidence to support the jury's rejection of self-defense, we must determine whether any rational trier of fact could have found beyond a reasonable doubt (1) the essential elements of the alleged offense, and (2) against appellant on the self-defense issue. See Dearborn, 420 S.W.3d at 372. "Defensive evidence which is merely consistent with the physical evidence at the scene of the alleged offense will not render the State's evidence insufficient since the credibility determination of such evidence is solely within the jury's province and the jury is free to accept or reject the defensive evidence." Saxton, 804 S.W.2d at 914.

         B. The Evidence

         Appellant testified and admitted to shooting the unarmed decedent during a drug deal. The decedent had been selling appellant pills to satisfy appellant's drug habit. Initially, appellant saw the decedent every day and would also give the decedent rides about three times per week. Appellant claimed to have witnessed the decedent becoming angry and aggressive towards people who owed him money. On one occasion, the decedent showed appellant that the decedent carried a gun on his ankle.

         According to appellant, their relationship deteriorated after the decedent sold appellant a car, and the decedent's car had to be put in "the shop," leaving the decedent without a car. The decedent wanted appellant to give the decedent rides again or pay the decedent more money for the car. Appellant refused. The decedent said threatening things to appellant over the phone and showed up at appellant's apartment. At the apartment, the decedent told appellant that "bad things" might happen to appellant or his family if appellant did not give the decedent his car back.

         Appellant was not buying pills as often, and he bought some pills from another dealer on the usual day that appellant would buy from the decedent. The decedent called appellant and was upset about the car and that appellant had not bought pills from the decedent. A few days later, when appellant could not buy pills from any other dealers he knew, he called the decedent to set a meeting to buy pills. They planned to meet in the parking lot of a strip mall.

         At the time, appellant had been living with his girlfriend. She kept a .38 revolver and about ten bullets in her nightstand. Without telling his girlfriend, appellant took the gun, loaded it, and brought it with him. He wore a fedora and a trench coat, although it was a warm February day.

         Appellant arrived at the strip mall before the decedent and went inside a Jumpalooza-a "kids' playland" with "bouncy houses." He asked employees about pricing and for a flier. Appellant also went into a restaurant and asked an employee if appellant could use the restroom. He was captured on surveillance videos. Several witnesses noted appellant's odd clothing choice for a warm day.

         The decedent called appellant when the decedent arrived, and appellant got into the decedent's car. A family leaving the Jumpalooza was getting into their own car nearby. The father of that family testified that they crossed paths with a man in a trench coat, and the man was inside the decedent's car for five to ten seconds before the father heard the gunshots. The father saw the decedent slump to the middle of the car, and the man pushed the decedent towards the driver's side door. When the man got out of the car, the man fired additional shots at the decedent before getting in his own car and leaving.

         Another witness who was inside a nail salon testified that she saw a man in a trench coat get into the decedent's car, but the man stayed in the vehicle for one to two minutes before the witness heard a loud banging sound. She did not see the man fire shots into the car from the outside.

         Appellant testified that when he got into the decedent's car, the decedent was being aggressive and agitated. The decedent told appellant, "I'm going to mess you up, I'm going to get my F-ing money." After one to two minutes, the decedent said, "I should F-ing kill you. I'm going to F you up." Appellant testified that the decedent started to reach down by his feet, and appellant thought the decedent was going for a weapon to kill appellant. Appellant shot the decedent five times with the revolver. Appellant testified that he did not "give [the decedent] enough time to see what he was reaching for." Appellant denied touching the decedent, firing any shots while outside the car, or stealing anything from the car.

         A medical examiner testified that several bullets entered the side of the decedent, but several bullets also entered the decedent's back at a downward trajectory. The wounds to the decedent's back included soot, which indicated to the medical examiner that the gun was pressed up against the decedent's body or within an inch of his body. Police officers did not find a gun at the scene.

         After the shooting, appellant called and texted the decedent multiple times. He admitted that he tried to "make it look like [he] wasn't there." But he did not think about the existence of cell site location data at the time he made the communications. After driving away, he threw the shell casings out of his car window. He threw away his trench coat at a gas station. When he got home, he hid the clothes he was wearing and returned the gun to the girlfriend's nightstand. When his girlfriend discovered that she was missing bullets, he told her that her son had been going through her drawers, so he hid the bullets elsewhere. He did not turn himself in to the police. Although he claimed to have spoken with an attorney, he did not tell anyone else what had happened. When he became a suspect and people started asking him about what happened, he told them he was not involved. Appellant spoke with his mother often after the shooting, but he never mentioned self-defense.

         C. Analysis

         Appellant's defensive evidence is merely consistent with the physical evidence at the scene of the offense, and thus, cannot render the State's evidence insufficient because the credibility determination regarding his evidence is solely within the jury's province, and the jury is free to accept or reject the defensive evidence. See Saxton, 804 S.W.2d at 914. Appellant has not shown how the jury's credibility determinations are irrational in this case, so we cannot disturb the jury's credibility determinations. See Braughton v. State, 569 S.W.3d 592, 611 (Tex. Crim. App. 2018).

         The jury heard evidence that the decedent had verbally threatened appellant on a prior occasion, and yet appellant voluntarily met with the decedent to buy drugs. The jury heard that appellant brought a loaded gun to this meeting, shot the unarmed decedent within five to ten seconds of entering the car, shot the decedent in the side and back at close contact, manipulated the decedent's body, fired shots into the car after getting out, disposed evidence of the crime, attempted to fabricate exculpatory evidence, and lied to his girlfriend and others in an attempt to cover up his participation. Furthermore, appellant testified that he fired the gun before he could see what the decedent was reaching for.

         A rational jury could have found beyond a reasonable doubt that appellant did not reasonably believe deadly force was immediately necessary to protect appellant against the decedent's use or attempted use of unlawful deadly force. See Braughton, 569 S.W.3d at 611 (sufficient evidence to reject self-defense despite defendant's and his parents' testimony that the decedent made a verbal threat to use a gun while reaching into the saddlebags of a motorcycle, and uncontroverted evidence that the decedent had just assaulted the defendant's father and knocked him to the ground); Mendez v. State, 515 S.W.3d 915, 919, 921-22 (Tex. App.- Houston [1st Dist.] 2017) (sufficient evidence to reject self-defense despite evidence that the decedent had said he wanted to harm someone, the defendant and decedent had a verbal altercation, the decedent fired a gun near a nightclub on a prior occasion, and the decedent had a reputation for violence; noting evidence that the defendant hit the decedent first and then later threw away his bloody clothes and the murder weapon and inquired about destroying surveillance tapes), aff'd, 545 S.W.3d 548 (Tex. Crim. App. 2018); see also Granger v. State, 3 S.W.3d 36, 39 (Tex. Crim. App. 1999) (noting that the reasonableness of a defendant's belief that deadly force was necessary is ordinarily a question of fact for the jury).

         Appellant's second issue is overruled.

         II. Admission of Evidence

         In his first issue, appellant contends that the trial court erred by excluding "communicated character" evidence, i.e., the decedent's bad acts known by appellant. In particular, appellant contends that the trial court excluded evidence that (1) the decedent had committed home burglaries during which he stole firearms; (2) the decedent had verbally threatened harm to appellant and his loved ones some time before the shooting; (3) the decedent had been in previous physical altercations; and (4) the decedent had numerous tattoos that suggested affiliation with or membership in a violent criminal street gang.

         A. Legal Principles

         We review a trial court's decision to exclude evidence for an abuse of discretion. See Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016). Under this standard, we may not reverse a judgment unless we believe that the trial court's ruling was so clearly wrong as to lie outside the zone within which reasonable people might disagree. Id.

         Although relevant, character evidence is generally inadmissible. Sims v. State, 273 S.W.3d 291, 294 (Tex. Crim. App. 2008). Evidence of a person's character is not admissible to prove that a person acted in accordance with the character, and evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that the person acted in accordance with the character. Tex. R. Evid. 404(a)(1), (b)(1). Even when character evidence is admissible, usually this evidence may be proven only through opinion or reputation evidence and not through specific instances of conduct. See Tex. R. Evid. 405; Sims, 273 S.W.3d at 294.

         However, in a case such as this one in which the defendant adduces evidence of self-defense, the defendant may offer evidence of the victim's reputation, opinion testimony, and evidence of specific prior acts of violence by the victim to show the reasonableness of the defendant's claim of apprehension of danger from the victim. Ex parte Miller, 330 S.W.3d 610, 618 (Tex. Crim. App. 2009). "This is called 'communicated character' because the defendant is aware of the victim's violent tendencies and perceives a danger posed by the victim, regardless of whether the danger is real or not." Id. (citing Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim. App. 1999)). For example, when the decedent in a homicide case was unarmed, the defendant's claim of self-defense rests on a perceived danger, which is "frequently based on a furtive gesture that can only be regarded as a threat when it is considered in light of the decedent's reputation for violence." Fry v. State, 915 S.W.2d 554, 560 (Tex. App.-Houston [14th Dist.] 1995, no pet.), cited in Ex parte Miller, 330 S.W.3d at 618 n.16.

         In short, communicated character evidence in the form of the victim's specific acts of violence is admissible under Rule 404 to show the defendant's state of mind. Mozon, 991 S.W.2d at 846; see Tex. R. Evid. 404(b)(2). But even if communicated character evidence is admissible under Rule 404, the trial court may still exclude the evidence under Rule 403. See Mozon, 991 S.W.2d at 846. And even if the trial court has erred by excluding evidence, generally we may not reverse a conviction unless the erroneous exclusion of evidence was harmful, i.e., affected the party's substantial rights. See Tex. R. Evid. 103(a); Tex.R.App.P. 44.2(b); Walters v. State, 247 S.W.3d 204, 218-19 (Tex. Crim. App. 2007).

         B. Burglaries

         At trial, appellant's counsel proffered evidence that the decedent had told appellant that the decedent had broken into peoples' houses and taken some guns. The trial court, agreeing with the State's argument, ruled that evidence of the decedent's ...

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