Arline v. State

• Decision Date: 10 December 1986
• Docket Number: No. 170-86,170-86
• Citation: 721 S.W.2d 348
• Parties: Everett Don ARLINE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 348

721 S.W.2d 348

Everett Don ARLINE, Appellant, v. The STATE of Texas, Appellee.

No. 170-86.

Court of Criminal Appeals of Texas,

En Banc.

Dec. 10, 1986.

Ronald Plessala, Nederland, for appellant.

James S. McGrath, Dist. Atty., and R.W. Fisher, Asst. Dist. Atty., Beaumont, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted by a jury of the offense of voluntary manslaughter. V.T.C.A. Penal Code, § 19.04 (1974). The jury assessed punishment at confinement for twenty (20) years in the Texas Department of Corrections and a $10,000 fine.

The Beaumont Court of Appeals reversed appellant's conviction, holding that the trial court committed reversible error in failing, after timely objection, to include a definition of "reasonable belief" ¹ in the jury charge at the guilt/innocence stage of the trial. Arline v. State, 690 S.W.2d 20 (Tex.App.--Beaumont 1984). We then summarily granted the State's petition for discretionary review and remanded the cause to the Court of Appeals for reconsideration in light of Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985) (establishing different standards for reviewing harmfulness of preserved and unpreserved jury charging error). Arline v. State, No. 079-85 (Tex.Cr.App. Nov. 13, 1985) (per curiam, unpublished).

Upon reconsideration, the Court of Appeals again reversed appellant's conviction, holding that the trial court's failure to define "reasonable belief" in the jury charge had caused appellant "some" harm. Arline v. State, 702 S.W.2d 755 (Tex.App.--Beaumont 1986). We again granted the State's petition for discretionary review to determine whether the Court of Appeals correctly applied Almanza, supra. We will reverse and remand.

I.

Appellant was charged with murder for "intentionally and knowingly caus[ing] the death of Darrell Quinn Jones by beating him with a gun and hitting him with a mop handle." (R. I-2). See Art. 19.02, V.T.C.A. Penal Code (1974). Only a brief recitation of the relevant facts surrounding this event is necessary.

On October 22, 1982, appellant, wanting to speak with his estranged girlfriend Mary Route, broke a window in the bedroom of her apartment from the outside. Darrel Quinn Jones, having been in the bedroom watching television with Mary Route, exited the apartment and confronted appellant with a pellet pistol. A fight ensued, and appellant wrestled the pistol from Jones and hit Jones several times with it. The pistol broke into several pieces and the fight continued. Appellant then obtained a mop handle and hit Jones several times with it. Finally, the police arrived and appellant fled. Jones died shortly afterward.

Appellant was arrested later that evening at a relative's house. He made a written and signed confession to the police that included the following statements:

He [Jones] was holding a gun of some sort in one of his hands and acted like he was trying to shoot me. He was trying to click it and it didn't shoot[. H]e kept trying to shoot and we both ran at each other and started to fight. We chased each other arround [sic] the apartments and fought for several minutes. I finally got the gun away from him and was hitting him with it.

During his trial, appellant testified that he acted in self-defense after Jones confronted him with what appellant thought was a "real" pistol. Appellant also testified that Jones continued the combat even after appellant had taken the pistol from him.

The jury was charged on the law of murder, voluntary manslaughter and self-defense. The abstract portion of the charge on self-defense reads as follows:

When a person is attacked with unlawful deadly force, or he reasonably believes he is under attack or attempted attack with unlawful deadly force, and there is created in the mind of such person a reasonable expectation or fear of death or serious bodily injury, then the law excuses or justifies such person in resorting to deadly force by any means at his command to the degree that he reasonably believes immediately necessary, viewed from his standpoint at the time, to protect himself from such attack or attempted attack. It is not necessary that there be an actual attack or attempted attack, as a person has a right to defend his life and person from apparent danger as fully and to the same extent as he would had the danger been real, provided that he acted upon a reasonable apprehension of danger, as it appeared to him from his standpoint at the time, and that he reasonably believed such force was immediately necessary to protect himself against the other person's use or attempted use of unlawful deadly force.

(R. I-28) (emphasis added). The application portion of the charge reads as follows:

Therefore, even if you believe from the evidence beyond a reasonable doubt or if you have a reasonable doubt thereof that the defendant EVERETT DON ARLINE, used deadly force as alleged in the indictment, but that on such occasion the defendant reasonably believed, as viewed from his standpoint at the time, 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 use or apparent use of unlawful deadly force, or if you have a reasonable doubt thereof, 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 will find against the defendant on this plea of justification.

(R. I-29) (emphasis added).

Prior to submission of the charge to the jury, appellant objected "that there is no definition or instruction on what 'reasonable belief' is." (R. III-290). The trial court overruled the objection.

During final argument on guilt/innocence, appellant's attorney made the following argument relevant to appellant's "reasonable belief":

Now, self-defense--It is to be viewed through Everett Arline's eyes, as to what was happening to him that night. That part of the test is a subjective test.

You, also, have to, in a sense, wear two hats in this matter, even though you are viewing it through his eyes, his responses have to be that of a reasonable person. What is reasonable--Usually reasonable people will have to decide. We may all act differently, but you keep in mind, it is within the spectrum of how human beings act in this world. We are all on the fringes of reacting differently. All of us are within some norm that we can live with in our society. That is how you are to judge self-defense.

(R. III-300) (emphasis added).

The State responded with the following argument:

But, at the time that he got that gun away from him, I ask you, and look at this Charge because this is where the law is so important--A person reasonably believes that force is immediately necessary--Now, after he's got the gun away from him, and Quinn is standing there with nothing, you tell me what person is going to reasonably believe that you have to continue to beat somebody with an object so bad that they die? That's not there. It's just not there. It won't work.

There's no self-defense in this case because at the time the beating occurred, Quinn has no--simply has no object--has no deadly weapon on him. [Appellant] has it at that time.

(R. III-325-26) (emphasis added).

II.

On direct appeal, appellant alleged that it was error for the trial court to refuse to define the term "reasonable belief" in the jury charge. The Court of Appeals could find no authority controlling appellant's point of error but reasoned that the Legislature intended for the jury to be informed of its own definitions for words and phrases used in the Penal Code. Arline, 690 S.W.2d at 20.

After this Court remanded this cause for reconsideration in light of Almanza, supra, the Court of Appeals determined that appellant had been harmed in the following manner:

A complete reading of the court's charge persuades us that the appellant was harmed by the court's failure to define "Reasonable belief" in the charge; certainly that seems to be the intention of our legislature.

Arline, 702 S.W.2d at 756. We must now determine whether the Court of Appeals properly applied the harmless error standard of Almanza, supra.

III.

In Almanza, this Court held that Article 36.19, V.A.C.C.P. (1974), ² prescribes the manner in which jury charge error is reviewed on appeal. 686 S.W.2d at 171. Instead of automatically reversing convictions for technical charging errors, an appellate court must undertake a two-step process of review. First, an appellate court must determine whether error exists in the charge. Second, the appellate court must determine whether sufficient harm was caused by the error to require reversal of the conviction. Id. See Jones v. State, 720 S.W.2d 535, 536 (Tex.Cr.App.1986).

The degree of harm that must be present to require reversal of a case depends upon whether the error was preserved or unpreserved. Concerning error that was preserved at trial by a timely and specific objection, that error must have been "calculated to injure the rights of [the] defendant." Article 36.19, V.A.C.C.P. (1974); Almanza, supra, at 171. In other words, a defendant must have suffered "some" actual, rather than theoretical, harm from the error. Id.

Presumably, this Court chose the term "some" to indicate the minimum degree of harm necessary for reversal of cases involving preserved charging...