Graves v. State
| Decision Date | 11 December 2014 |
| Docket Number | No. 06–13–00233–CR,06–13–00233–CR |
| Citation | 452 S.W.3d 907 |
| Parties | Harold L. Graves, Jr., Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
Larry M. Moore, Fort Worth, TX, for appellant.
Any Porter, Assistant District Attorney, Charles M. Mallin, Fort Worth, TX, for appellee.
Before Morriss, C.J., Carter and Moseley, JJ.
Harold L. Graves, Jr., was convicted by a jury of murder and tampering with physical evidence, for which he received concurrent sentences of thirty-seven years' and ten-years' imprisonment, respectively. We affirm Graves' murder conviction. Because the evidence is legally insufficient to support the tampering with physical evidence conviction, we reverse that judgment of conviction for tampering and enter a verdict of acquittal on the tampering offense only.
Graves was awakened by the sound of pounding on the front door of his Fort Worth1 home in the early morning hours of May 11, 2012. When Graves opened the door, he was confronted by Eric Hollie, who apparently wanted to retrieve his cell phone from Dwanna Conner, Graves' live-in girlfriend. Conner had traded Hollie crack cocaine the previous day in exchange for the cell phone, and Hollie wanted to undo the deal. Graves and Hollie engaged in a heated argument for several minutes. At one point, Hollie attempted to forcibly enter the home, but he was pushed back outside by Graves. After Hollie threatened “to come back and shoot up the whole house,” he began to back away from the front door. At that point, Graves shot the unarmed Hollie with a handgun. Graves then went back inside, gathered the occupants, including Conner, Connor's friend, Samantha Iglesias, and Graves' teenaged son, Trey Graves. The four left the residence in Conner's car and drove to the home of Graves' cousin where they spent the remainder of the night.
At approximately 7:00 a.m. that same morning, a neighbor discovered Hollie's lifeless body lying in front of Graves' home; the neighbor notified the police. Graves was ultimately arrested for the shooting, but the handgun used in the shooting was never recovered. After a jury trial, Graves was convicted of murder and of tampering with physical evidence. Graves raises six points of error on appeal.
In his first two points of error, Graves complains of the trial court's refusal to instruct the jury on the “presumption of reasonableness” and the lack of any “duty to retreat” in conjunction with the court's instructions on self-defense and pursuant to Section 9.32 of the Texas Penal Code. See Tex. Penal Code Ann. § 9.32(b), (c) (West 2011). The State responds that the trial court properly denied the requested instructions because the evidence showed that Hollie was unarmed, and there was no evidence that Graves reasonably believed deadly force was needed to protect himself, the occupants of his home, or his personal property.
We review claims of jury charge error under the two-pronged test set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (op. on reh'g). We first determine whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App.2005). If error exists, we then evaluate the harm caused by that error. Id. If there is no error, our analysis ends. Kirsch v. State, 357 S.W.3d 645, 649 (Tex.Crim.App.2012).
The trial court must give a requested instruction on every defensive issue raised by the evidence, regardless of the source of the evidence, the strength of the evidence, or the credibility of the evidence. Krajcovic v. State, 393 S.W.3d 282, 286 (Tex.Crim.App.2013) ; Juarez v. State, 308 S.W.3d 398, 404–05 (Tex.Crim.App.2010). A defense is raised by the evidence if there is some evidence on each element of the defense that, if believed by the jury, would support a rational inference that that element is true. Shaw v. State, 243 S.W.3d 647, 657–58 (Tex.Crim.App.2007).
Under Texas law, a person may use deadly force if he or she reasonably believes such force is immediately necessary to protect himself from the other person's use of deadly force. Tex. Penal Code Ann. § 9.32 (West 2011). When certain conditions are met, a defendant is entitled to an instruction informing the jury that his action is presumed to be reasonable. A person is presumed to have acted reasonably in the use of deadly force while protecting himself or his family from an intruder if the intruder is attempting to enter the individual's habitation or attempting to commit certain other specific crimes. Tex. Penal Code Ann. § 9.32(b)(1)(A) ; Lee v. State, 415 S.W.3d 915, 919 (Tex.App.–Texarkana 2013, pet. ref'd). When assessing the reasonableness of a defendant's belief that force was immediately necessary, the jury should be instructed that it may not consider whether the defendant failed to retreat if the defendant (1) had a right to be present at the location where the conduct occurred, (2) did not provoke the attack, and (3) was not engaged in criminal activity at the time the deadly force was used. Tex. Penal Code Ann. § 9.32(c), (d) ; see Morales v. State, 357 S.W.3d 1, 5 (Tex.Crim.App.2011) ; Whitney v. State, 396 S.W.3d 696, 703 (Tex.App.–Fort Worth 2013, pet. ref'd).
Trey witnessed the encounter between Graves and Hollie from the darkened living room. He testified that Hollie wanted to come inside the house to retrieve his cell phone, but Graves would not permit entrance. Hollie then violently pushed Graves out of the way and began to enter the home. In response, Graves pushed Hollie back outside. This incident happened after the two had engaged in a “pretty heated argument” for about five minutes. At that point, Graves told Hollie that he needed to come back in the morning. Hollie indicated that he was going to “come back and shoot the whole house up.” At that time, Hollie began backing up on the porch. Graves then shot Hollie.2
The State contends that the record is devoid of evidence regarding Graves' state of mind at the time he killed Hollie. To be entitled to any self-defense instruction involving deadly force, Graves had to reasonably believe that deadly force was immediately necessary to protect himself or others from Hollie's use or attempted use of deadly force. See Tex. Penal Code Ann. § 9.32. A “reasonable belief” is “a belief that would be held by an ordinary and prudent [person] in the same circumstances as the actor.” Tex. Penal Code Ann. § 1.07(42) (West Supp.2014). “Deadly force” is “force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.” Tex. Penal Code Ann. § 9.01(3) (West 2011).
There is no evidence that Hollie used, or even attempted to use, deadly force. Each witness who was asked testified that he or she saw no evidence that Hollie possessed any type of weapon during the confrontation with Graves. Moreover, the evidence shows that Hollie was in the process of backing away from Graves when Graves shot him, not attempting to enter the habitation. Verbal provocation alone does not justify the use of deadly force against another. Tex. Penal Code Ann. § 9.31(b)(1) (West 2011). There is nothing in the record to support the contention that Graves reasonably believed the immediate use of deadly force was necessary to protect himself against Hollie's use or attempted use of unlawful deadly force. See Dearborn v. State, 420 S.W.3d 366, 378 (Tex.App.–Houston [14th Dist.] 2014, no pet.) ( defendant not entitled to self-defense instruction where evidence showed victim armed with nothing other than fists and noting blows with fists not typically considered deadly force); Trammel l v. State, 287 S.W.3d 336, 341 (Tex.App.–Fort Worth 2009, no pet.) (appellant not entitled to self-defense instruction in absence of immediacy of threat from victim).
Because there is nothing in the record to support a finding that Graves reasonably believed the immediate use of deadly force was necessary, Graves was not entitled, in the first instance, to a self-defense instruction. Therefore it logically follows that the trial court properly denied his request to instruct the jury on the presumption of reasonableness and the lack of a duty to retreat. See Tex. Penal Code Ann. § 9.32(b), (c).
In his third point of error, Graves contends that the trial court erred in admitting evidence of his alleged drug dealing prior to the date of the offense for which he was being tried. At trial, Graves' neighbor, Michael Davis, Jr., testified as follows:
Davis' testimony was offered for the purpose of demonstrating that Graves was engaged in a criminal activity at the time the shooting occurred, such that Graves would not be entitled to a self-defense instruction which included the “Castle Doctrine” language discussed in the previous section of this opinion.3
On appeal, Graves complains that Davis' testimony should have been excluded under Rules 402...
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