Dearborn v. State

• Decision Date: 07 January 2014
• Docket Number: Nos. 14–12–00735–CR, 14–12–00736–CR.,s. 14–12–00735–CR, 14–12–00736–CR.
• Citation: 420 S.W.3d 366
• Parties: Kenneth Ramone DEARBORN, II, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

420 S.W.3d 366

Kenneth Ramone DEARBORN, II, Appellant

v.The STATE of Texas, Appellee.

Nos. 14–12–00735–CR, 14–12–00736–CR.

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

Jan. 7, 2014.

Nicolas R. Hughes, Houston, for Appellant.

Donald W. Rogers, Jr., Houston, for the State.

Panel consists of Justices BOYCE, JAMISON, and BUSBY.

OPINION

J. BRETT BUSBY, Justice.

Appellant Kenneth Dearborn was convicted in a bench trial of aggravated assault and unlawful possession of a firearm by a felon. In his first issue, appellant argues that he was egregiously harmed by the trial court's alleged failure to apply the law of justification as a defense to the charges against him. We disagree because the evidence did not fairly raise the theory that appellant's use of deadly force was justified either to prevent the complainant's purported aggravated kidnapping of his own wife, or to prevent the complainant's alleged burglary of his own home. In his second and third issues, appellant challenges the sufficiency of the evidence supporting his convictions for aggravated assault and unlawful possession of a firearm, respectively. We reject these challenges and hold that the evidence sufficiently supported each of appellant's convictions. We therefore affirm the convictions.

Background

As the trial court observed, “[t]his is a tale of a boy, a girl, and a boy, which is always a bad combination.” The complainant, Richard Mitchell, shared a house in Katy with his wife, Danielle Jones–Mitchell. Although the complainant was gone for extended stretches of time to work offshore, he paid the mortgage and utility bills for the house, and he had his own set of keys to the house.

On November 8, 2009, the complainant unexpectedly returned early from working offshore due to a storm in the Gulf of Mexico. The complainant called Jones–Mitchell, and she drove to Louisiana in their car to pick him up and drive him back to Katy. During the drive back, Jones–Mitchell informed the complainant that he could not return to their house that night. The complainant later discovered that while he had been working offshore, Jones–Mitchell had been cohabitating in their Katy house with appellant. The complainant admitted during appellant's trial that he was very angry when he initially learned of this situation. To ensure that he returned to his house, the complainant eventually asked Jones–Mitchell to let him drive their car. They exchanged seats, and the complainant then drove the rest of the way to their house in Katy.

The complainant also admitted that he got even angrier when, during the drive, he answered a telephone call from appellant to Jones–Mitchell. According to the complainant, while they were still thirty minutes away from the house, he told appellant he had five minutes to get out. The complainant denied telling appellant anything other than he had five minutes to vacate the house. While admitting he was initially very angry, wanted to beat appellant up, and that he drove twice the speed limit at times on his way to his house, the complainant testified that Jones–Mitchell continued talking to him and he eventually calmed down and that upon arriving at his house, he “was going to let the dude call his ride and go.”

According to the complainant, by the time they arrived at the house, he and his wife were not arguing, he had calmed down, and they walked together to the front door of the house. When Jones–Mitchell put her key in the front door lock, appellant fired a shotgun through the door, hitting the complainant. ¹ The complainant fled to the entrance of his neighbor's house, where he collapsed. Accompanied by Jones–Mitchell, the complainant was later taken by ambulance to the hospital, where he was treated and eventually released.

After his arrest, appellant gave a brief, voluntary statement to the police. According to that videotaped statement, Jones–Mitchell talked with appellant over the phone during the drive, and she told appellant that the complainant had hit her. Appellant said he heard arguing over the phone and heard complainant ask Jones–Mitchell where a shotgun was. Appellant also told the police that the complainant answered one of his calls to Jones–Mitchell and told appellant he had better be gone when he reached the house. Appellant told the police he wanted to leave the house but had no transportation. Appellant said he was scared and moved a shotgun close to the front door. Appellant said he heard a car pull up to the house and then a light tapping sound at the front door like there was a key at the door. Scared, appellant picked up the shotgun in both hands and it then accidently fired through the front door. Immediately after firing the shotgun through the front door, appellant placed the shotgun and spent shell casings on a table in the living room, washed his hands, and then went outside to check on the complainant. Appellant told Jones–Mitchell and the wounded complainant that he accidentally fired the shotgun. Appellant later told the deputy sheriff who responded to the scene that he accidentally shot the complainant.

At his bench trial, appellant did not testify, but his videotaped statement to police was introduced into evidence as an exhibit. Jones–Mitchell also did not testify. Only three witnesses testified during appellant's trial: the complainant; the deputy sheriff who responded to the shooting; and a firearms examiner from the Harris County Sheriff's Office. The firearms examiner testified that it was unlikely the shotgun could fire accidently. Instead, she testified the trigger is “going to have to be directly pulled, not just a slight tap is going to cause it to go off.”

At the conclusion of the guilt-innocence phase of the bench trial, the court found appellant guilty of both charges. Then, at the conclusion of the sentencing phase and before imposing appellant's punishment, the trial court stated:

Now, I don't know what happened in the [prior felony conviction], but I do know in this situation that the choice you made was—rather than leaving and completely [defusing] the situation, you made the choice to stay, you made the choice to arm yourself.

.... I can understand you being afraid in that situation. But, again, that fear could have been productive. You could have left and not been in that situation.

The trial court then sentenced appellant to 25 years in prison for the aggravated assault and 10 years in prison for possessing the firearm. This appeal followed.

Analysis

As mentioned above, appellant brings three issues on appeal. Appellant's second and third issues contend he should be acquitted because insufficient evidence supports his convictions, so we address those issues first.

I. The evidence is sufficient to support appellant's convictions for both aggravated assault and unlawful possession of a firearm.

In this appeal, appellant does not dispute that he fired the shotgun blast that struck the complainant. He also does not dispute that he had a prior felony conviction or that he possessed the shotgun, at least for a short while. Instead, in both his second and third issues, appellant contends he presented evidence establishing as a matter of law that he was justified in possessing the shotgun, firing it through the front door of the complainant's house, and wounding the complainant in the chest to prevent (1) the aggravated kidnapping of Jones–Mitchell, and (2) the complainant from unlawfully and forcibly entering the residence to assault him with deadly force. SeeTex. Penal Code Ann. §§ 9.31–9.32 (West 2011). Appellant argues that once a criminal defendant presents evidence raising a justification defense, the State must present evidence rebutting that defense. According to appellant, because the State failed to refute his self-defense claim, the evidence is insufficient to support his convictions. We disagree.

A. The applicable law and standard of review.

To obtain a conviction for aggravated assault, the State must prove beyond a reasonable doubt that the accused intentionally, knowingly, or recklessly caused bodily injury to another while using or exhibiting a deadly weapon. See id. §§ 22.01(a)(1), 22.02(a)(2) (West 2011). A deadly weapon includes “a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury.” See id. § 1.07(a)(17)(A) (West 2011).

To convict appellant of unlawful possession of a firearm by a felon, the State was required to prove that appellant, having been previously convicted of a felony, possessed a firearm before the fifth anniversary of his release from confinement. See id. § 46.04(a)(1) (West 2011).

It is a defense to prosecution if a person's conduct is justified by Chapter 9 of the Texas Penal Code. Tex. Penal Code Ann. § 9.02 (West 2011). Under Chapter 9, a person generally is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against another's use or attempted use of unlawful force. Id.§ 9.31(a). When the force in question is deadly, as the shotgun blast was here,² the person is justified in using such force in self-defense if the above test is met and the person reasonably believes that deadly force is immediately necessary either (1) to protect himself against the other's use or attempted use of unlawful deadly force; or (2) to prevent the other's imminent commission of, among other things, aggravated kidnapping. Id.§ 9.32(a). The person's belief in the necessity of deadly force is presumptively reasonable if certain requirements are met, including that the person has reason to believe that the other unlawfully and with force entered (or was attempting to enter) the person's occupied habitation. Id.§ 9.32(b). Similarly, a person is justified in using deadly force in defense of property if certain requirements are met, including that the person reasonably believes such force is immediately necessary to...