Brown v. State, No. 10-07-00279-CR (Tex. App. 1/13/2010)
| Decision Date | 13 January 2010 |
| Docket Number | No. 10-07-00279-CR.,10-07-00279-CR. |
| Parties | LARRY GLEN BROWN, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 361st District Court, Brazos County, Texas, Trial Court No. 06-06486-CRF-361.
Affirmed.
Before Chief Justice GRAY, Justice REYNA, and, Justice DAVIS
A jury convicted Larry Glen Brown of the lesser-included offense of manslaughter and assessed his punishment at twenty years' imprisonment and a $5,000 fine. Brown raises eight points on appeal. We will affirm.
Brown was indicted for the murder of Christopher Johnson who was fatally shot during a melee at a Bryan nightclub. Several witnesses testified that they saw Brown with a gun at the club and heard shots fired. One testified that Brown shot Johnson. Brown testified that he fired shots in the air and the crowd cleared the area. Then he heard shots coming from a fence at the side of the club property and fired "blindly" in that direction. The court denied his requested instructions for self-defense, voluntary intoxication, and the lesser-included offense of criminally negligent homicide.
Brown contends in his second point that the court erred by failing to charge the jury on self-defense.1
A defendant is "entitled to an instruction on every defensive issue raised by the evidence, `whether that evidence is weak or strong, unimpeached or uncontradicted, and regardless of what the trial court may or may not think about the credibility of the defense.'" Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008) (quoting Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996)).
Under the law in effect at the time of the offense, section 9.32 of the Penal Code provided in pertinent part that a person was justified in using deadly force in self-defense "when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force." Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 9.32(3)(A), 1993 Tex. Gen. Laws 3586, 3598 (amended 2007) .
Section2 9.05 also applies. It provides:
Even though an actor is justified under this chapter in threatening or using force or deadly force against another, if in doing so he also recklessly injures or kills an innocent third person, the justification afforded by this chapter is unavailable in a prosecution for the reckless injury or killing of the innocent third person.
TEX. PEN. CODE ANN. § 9.05 (Vernon 2003).
There is no evidence in the record that Johnson used or exhibited deadly force during the altercation which led to the fatal shooting. Therefore, to the extent Brown's request for a self-defense instruction was premised on any perceived threat from Johnson, such an instruction was not authorized under the law. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 9.32(3)(A); Ruiz v. State, No. 05-06-00415-CR, 2007 Tex. App. LEXIS 596, at *6 () (not designated for publication); Starks v. State, 127 S.W.3d 127, 133 ().
Brown also testified that he fired his handgun in response to shots being fired from a fence at the side of the club. However, section 9.05 precludes the submission of a self-defense instruction if the defendant recklessly kills an innocent third person while using deadly force in response to a threat from someone else. See TEX. PEN. CODE ANN. § 9.05; Villareal v. State, No. 02-05-00380-CR, 2007 Tex. App. LEXIS 3831, at *7 (Tex. App.-Fort Worth May 17, 2007, pet. ref'd) (); Thomas v. State, No. 05-96-01469-CR, 1998 Tex. App. LEXIS 5525, at *10-11 (Tex. App.-Dallas Aug. 31, 1998, pet. ref'd) (); Banks v. State, 955 S.W.2d 116, 118-19 (Tex. App.-Fort Worth 1997, no pet.). Therefore, to the extent Brown's request for a self-defense instruction was premised on the perceived threat from an unidentified shooter, he was not entitled to such an instruction with respect to the shooting of Johnson who, under these circumstances, would be an innocent third party.
Brown's second point is overruled.
Brown contends in his seventh and eighth points respectively that the evidence is legally and factually insufficient to establish that he fired the fatal shot or to support the rejection of his self-defense claim under a hypothetically correct jury charge.
In reviewing a claim of legal insufficiency, we view all of the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential element beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Sells v. State, 121 S.W.3d 748, 753-54 (Tex. Crim. App. 2003); Witt v. State, 237 S.W.3d 394, 396-97 (Tex. App.-Waco 2007, pet. ref'd).
In a factual insufficiency review, we ask whether a neutral review of all the evidence, though legally sufficient, demonstrates either that the proof of guilt is so weak or that conflicting evidence is so strong as to render the factfinder's verdict clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Witt, 237 S.W.3d at 397.
Dmarcus Thurman testified that he saw Brown "literally shoot Chris Johnson point blank right to the back." Other witnesses testified that they saw Brown brandishing a gun and heard gunshots as they ran or took cover. This constitutes legally sufficient evidence that Brown fired the fatal shot.
Regarding factual sufficiency, Brown testified that shots were fired by others at the premises. Investigators found shell casings from other weapons on the premises. Results of testing on the bullet removed from Johnson's body were not available at trial, so it was not shown to be a 9 millimeter bullet.
There was conflicting evidence about whether Brown fired the fatal shot. It was within the jury's province to resolve those conflicts. Dudzik v. State, 276 S.W.3d 554, 559 (Tex. App.-Waco 2008, pet. ref'd). By returning a verdict of guilty, the jury necessarily resolved those conflicts in favor of the State. Giving due deference to the jury's role as the factfinder, we will not disturb its finding. See id. Accordingly, we find that the evidence was factually sufficient to support a finding that Brown fired the fatal shot.
With regard to self-defense, we have already determined that Brown was not entitled to an instruction on self-defense.
Brown's seventh and eighth points are overruled.
Brown contends in his sixth point that the court abused its discretion by admitting twelve autopsy photographs because the probative value of the photographs was substantially outweighed by the danger of unfair prejudice.
[A] proper Rule 403 analysis by either the trial court or a reviewing court includes, but is not limited to, the following factors: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; (4) the proponent's need for the evidence. In the context of the admission of photographs, we also consider the factors set out in Narvaiz. Those factors include the number of photographs, the size, whether they are in color or are black and white, whether they are gruesome, whether any bodies are clothed or naked, and whether the body has been altered by autopsy.
Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004) () (footnotes omitted). "The availability of other means of proof and the circumstances unique to each individual case must also be considered." Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007).
The twelve photographs at issue are eight-by-ten color photographs admitted at trial as State's Exhibits 101 through 112. The first two depict where the bullet was lodged in Johnson's internal stomach wall. The remaining ten depict his intestines, his bladder, the inferior vena cava, the aorta, and the left iliac region. After Brown objected to their admission, the State explained that these photographs were necessary to depict the path the bullet traveled within Johnson's body and to counter Brown's anticipated argument that Johnson's death was due at least in part to his own intoxication.3 Brown's counsel responded that he did not intend to challenge the autopsy findings. He took the medical examiner on voir dire and established that it would be possible to explain to the jury the bullet path and the damage done to Johnson's internal organs without using the photographs. The court overruled the objection.
These photographs have at best limited probative value. See Reese v. State, 33 S.W.3d 238, 241-42 (Tex. Crim. App. 2000) (); Kelley v. State, 22 S.W.3d 642, 645 (Tex. App.-Waco 2000, pet. ref'd) ( ...
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