Banks v. State

• Decision Date: 12 November 1981
• Docket Number: No. C14-81-006-CR,C14-81-006-CR
• Citation: 624 S.W.2d 762
• Parties: Michael Joseph BANKS, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 762

624 S.W.2d 762

Michael Joseph BANKS, Appellant, v. The STATE of Texas, Appellee.

No. C14-81-006-CR.

Court of Appeals of Texas, Houston (14th Dist.).

Nov. 12, 1981.

Dick DeGuerin, Foreman & DeGuerin, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Houston, for appellee.

Before MILLER, MORSE and ROBERTSON, JJ.

MILLER, Justice.

This is an appeal from a murder conviction. Appellant was found guilty after a trial by jury, and punishment was assessed at fifteen (15) years confinement in the Texas Department of Corrections. Appellant was sentenced by the court and notice of appeal was duly given. We affirm the judgment of the trial court.

Michael Joseph Banks was convicted of the gun-shot murder of Donald Ray Sessions. On the evening of October 28, 1977 Donald Ray Sessions was playing cards with three neighbors outside his apartment. At approximately 8:30 P.M. appellant and Cynthia Sessions, sister of the deceased and common-law wife of Banks, came to the apartment complex to ask the deceased about the disappearance of $1600 from appellant's car. Appellant believed the deceased removed the money when he borrowed the car several hours earlier. The deceased denied any knowledge of the missing money, and after a few minutes of argument, appellant and Cynthia Sessions left the complex to look for the money once more. Some fifteen minutes later, appellant returned and a heated argument ensued. At some time during the argument the deceased, standing on some stairs, turned and moved toward the appellant. Appellant pulled a gun and shot the deceased three times. Appellant then shot at the other card players, wounding the deceased's cousin, Michael Bisor, with the final shot.

At trial appellant admitted to shooting the deceased but claimed he acted in self-defense. Appellant testified he and the deceased had been engaged in a feud for some time, and the deceased had constantly "bullied" and "picked-on" him. Appellant further testified he took a gun to the deceased's apartment because he was afraid of the deceased and believed there would be trouble when he asked for his money back. According to this testimony, the deceased was shot when he turned to come toward the appellant. Appellant claimed his sole reason for approaching the deceased was to get his money back and that he had no intention of killing him.

Appellant raises three grounds of error on appeal, all involving the adequacy of the jury charge. First, appellant claims the trial court erred in failing to charge the jury on appellant's right to arm himself and seek out the deceased in order to obtain an explanation or amicable adjustment of their differences. Second, it is claimed the trial court erred in denying appellant's requested instruction regarding the protection of one's property as provided under § 9.41(b) Tex.Penal Code Ann. (Vernon 1974). Third, it is claimed the trial court erred in denying appellant's requested instruction regarding the use of deadly force to protect one's property as provided under § 9.42(2)(B) Tex.Penal Code Ann. (Vernon 1974). We will address these grounds in this order.

Appellant's first ground raises a claim of trial court error in refusing to follow a well-established rule of law. At the close of case the court charged the jury on the issues of self-defense and of appellant's provoking the difficulty. Appellant timely requested the following charge which was refused:

You are further instructed that the defendant, Michael Joseph Banks, had the right to go to the house of the deceased on the occasion of the homicide for the purpose of seeking an amicable adjustment of their differences, and, if he feared an attack upon himself by the deceased, Donald Ray Sessions, he had the right to arm himself before going to deceased's home, for the purpose of protecting himself from such anticipated attack; and his right of self-defense would not in any manner be cut off or abridged for thus acting.

Appellant claims the trial court erred by charging the jury with appellant's provoking the difficulty without including his right to arm himself and seek an explanation.

The trial court's refusal to charge the jury with the above requested instruction would amount to error under normal situations. The full and unlimited charge of self-defense was qualified by the charge of provoking the difficulty. The Court of Criminal Appeals has made it clear that once this limitation on a charge of self-defense is given the trial court is obligated to also charge the jury on a defendant's right to carry arms to the scene of the difficulty and to seek an explanation of differences. Gassett v. State, 587 S.W.2d 695 (Tex.Cr.App.1979); Young v. State, 530 S.W.2d 120 (Tex.Cr.App.1975); Porter v. State, 152 Tex.Cr.R. 540, 215 S.W.2d 889 (1948); Clark v. State, 99 Tex.Cr.R. 80, 268 S.W. 465 (1925); Shannon v. State, 35 Tex.Cr.R. 2, 28 S.W. 687 (1894).

An exception to this established rule is found in this case. While a charge of provoking the difficulty was given by the court, the request for the charge was made by appellant, not the prosecution. A charge of provoking the difficulty would normally be thought of as a prosecution charge since it limits a defendant's instruction on self-defense. Here, however, appellant requested the court place the limitation on his own charge of self-defense. Such request was granted. Appellant therefore cannot complain of his own requested charge. It is well settled in this state that if a defendant requests a particular charge, any error in giving the charge is seen as invited and cannot be grounds for reversible error. Stiles v. State, 520 S.W.2d 894 (Tex.Cr.App.1975). The prosecution did not request a charge of provoking the difficulty, and had it not been for appellant's request, no possible error would have resulted. An accused cannot invite error and then complain thereof. Cadd v. State, 587 S.W.2d 736 (Tex.Cr.App.1979); Cain v. State, 549 S.W.2d 707 (Tex.Cr.App.1977).

This court wishes to make it clear, however, it sees this situation as one of the few exceptions to the rule enunciated in Young v. State, supra. There the Court of Criminal Appeals held:

... if the court's instruction limits the accused's right of self-defense by a charge on provoking the difficulty, then the jury should be advised in a proper instruction under the facts that the accused's right of self-defense would not necessarily be abridged by the fact that he carried arms to the scene of the difficulty if such instruction is supported by the evidence. (citations omitted)

530 S.W.2d at 122. The court went on to use such language as "it is imperative" and "necessary" for a court charge a jury on the right to arm oneself and seek an explanation when a defendant's right to self-defense has been limited. Id. ¹ We read this language to mean that except in the rarest of situations, the additional charge is mandatory if the instruction is supported by the evidence. This case on appeal presents one of those rare instances. The appellant can not attempt to cause the trial court to err so as to gain reversal on appeal. Cadd v. State, 587 S.W.2d 736 (Tex.Cr.App.1979).

As a footnote, we also find an absence of evidence in the record to support a charge of appellant's right to arm himself and seek an explanation. Contrary to assertions by the State, there is evidence in the record to support a charge of provoking the difficulty. Appellant went to the deceased's apartment armed with a gun, knowing his confrontation could cause "trouble." The trial court had a basis upon which to charge the jury with provoking the difficulty, regardless of who requested the instruction.

There is a lack of evidence, however, to support a charge of appellant's right to arm himself and seek an explanation. The right to arm oneself and go to an adversary's house for the purpose of adjusting differences or of circumventing anticipated attack must not be abused. This right does not include a license to arm oneself to retrieve believed stolen property when fresh pursuit or threat of harm is absent. See: Tex.Penal Code Ann. § 9.41, et seq. (Vernon 1974). The purpose behind the right to arm oneself and seek an explanation is defensive; to obtain an amicable adjustment of differences. Young v. State, 530 S.W.2d at 123. Appellant did not go to the deceased's apartment to adjust an outstanding difference or to seek an explanation out of fear of a threat. Appellant went armed to the deceased's apartment "to get his money back." Such action was outside the defensive nature of this right. It is the prerogative of our court system to act as the arbitrator of these differences. Claims of theft and conversion should find mediation in the courthouse, not in the street. Otherwise, this nation would revert to an armed camp where "justice" is determined by the fastest gun. Since there was an absence of evidence in the record to support a charge of appellant's right to arm himself and seek an explanation or an amicable adjustment, we believe he was not entitled to one. Hunter v. State, 137 Tex.Cr.R. 289, 128 S.W.2d 1176, 1181 (1939); see: Wilson v. State, 87 Tex.Cr.R. 625, 224 S.W. 772, 775 (1920). A trial court is not required to instruct upon an issue not raised by the evidence. Simmons v. State, 145 Tex.Cr.R. 619, 170 S.W.2d 742 (1943). Because this ground of error can be overruled on the basis of appellant's invited error, however, we need not decide whether the rule of Young v. State, et al, mandating a charge of a right to arm oneself and seek an explanation when an instruction of provoking the difficulty is given is first dependent on an evidentiary foundation. That question is left for consideration...