Hayes v. State

• Decision Date: 29 April 1987
• Docket Number: No. 955-82,955-82
• Parties: Albert HAYES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 804

728 S.W.2d 804

Albert HAYES, Appellant, v. The STATE of Texas, Appellee.

No. 955-82.

Court of Criminal Appeals of Texas,

En Banc.

April 29, 1987.

Allen C. Isbell, on appeal only, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Winston E. Cochran, Jr., Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S MOTIONS FOR REHEARING

W.C. DAVIS, Judge.

Appellant was convicted of aggravated assault and was sentenced to five years' incarceration in the Texas Department of Corrections.

The First Court of Appeals, in an unpublished opinion, affirmed appellant's conviction holding, inter alia, that appellant's requested instructions on "deadly force" pursuant to V.T.C.A. Penal Code, § 9.32, and reckless conduct pursuant to V.T.C.A. Penal Code, § 22.05, were properly refused by the trial court. Hayes v. State, No. 01-81-0584-CR (Tex.App.--Houston [1st], October 7, 1982). We granted appellant's petition for discretionary review in order to determine whether evidence was indeed presented which would implicate the two requested instructions.

On original submission we concluded that the trial court erred in refusing to instruct the jury on "deadly force", and that that error harmed appellant. In motions for rehearing, the State argues that we erred in finding that appellant was harmed by the omission. We have reexamined this issue and agree that appellant suffered no harm. We withdraw our prior opinion and grant the State's motions for rehearing.

Although we find the error to have been harmless, we remain convinced that it was error to refuse appellant's requested charge on deadly force. Since our original opinion is withdrawn we will include its analysis of that error here.

The record reflects that on August 31, 1980, the complainant was helping friends, a married couple, move from an apartment complex in Houston. In order to be closer to the couple's apartment, the complainant and the couple parked their vehicles in a space assigned to appellant and his wife, who were also residents of the apartment complex. Some time after 1:30 on the afternoon of the incident, appellant's wife asked the complainant and his friends to move their automobiles from her parking space. While accounts differ as to the severity and nature of the dispute, it is apparent that appellant became angry when he heard of the encounter. Appellant went downstairs and argued with the complainant and his friends. After several harsh words were exchanged, appellant returned to his apartment.

Appellant changed his clothing so that he was wearing full length trousers rather than the shorts he had worn earlier. He also stuck his pistol in the waistband of his pants. According to appellant, he armed himself because he felt threatened. He then returned to the scene of the incident. Appellant maintains that the pistol was hidden under his shirt when he approached the complainant. The complainant insists the pistol was outside appellant's shirt in full view.

The complainant and other witnesses testified that appellant was belligerent and struck the complainant without provocation. According to the complainant, appellant struck him with his gun as the complainant was preparing to leave. The complainant testified that he then struck the appellant with a Coke bottle, after which a struggle ensued. The complainant contended that he was shot during the struggle as he continued to grapple with appellant.

Both appellant and his wife testified that the complainant made the first move. Appellant contends the complainant emptied his Coke bottle and held it in a threatening fashion. Appellant stated that he only attempted to get by the complainant and in so doing pushed him aside. It was then, according to appellant, that the complainant struck him with the bottle and knocked him against the car. Appellant testified that he felt his life was threatened and grabbed his gun. The complainant also went for the gun. Apparently the two struggled for control of the weapon. Appellant insisted that the weapon fired accidentally during this struggle and that the shooting was unintentional.

Appellant requested the court to instruct the jury on the law of self-defense applicable to a situation in which an accused has to use deadly force to defend against deadly force. Instead, the court instructed the jury as to the justifiable use of less than deadly force. The court's charge closely follows the language of V.T.C.A., Penal Code, Section 9.31, which states in relevant part:

(a) Except as provided in Subsection (b) of this section, a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force.

The actual language of the court's charge in relevant part reads as follows:

Upon the law of self defense, you are instructed that a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other person's use or attempted use of unlawful force.

When a person is attacked, or an attempt is made to attack such person, with unlawful force, and there is created in the mind of such person a reasonable expectation or fear of some bodily injury then the law excuses or justifies such person in resorting to force to the degree that he reasonably believes is immediately necessary, viewed from his standpoint at the time, to protect himself from attack or attempted attack.

A person is under no obligation to retreat to avoid the necessity of repelling or defending, with force less than deadly force, against an attack or attempted attack.

Now, if you find and believe from the evidence beyond a reasonable doubt that on the occasion in question the defendant did shoot the complainant, Douglas W. Williamson, but you further find from the evidence, or you have a reasonable doubt thereof, that at that time the defendant was under attack or attempted attack from the complainant, Douglas W. Williamson, and that the defendant reasonably believed, as viewed from his standpoint, that such force as he used was immediately necessary to protect himself against such attack or attempted attack, and so believing, he shot the complainant, Douglas W. Williamson, then you will acquit the defendant and say by your verdict 'Not guilty.'

Appellant requested that the court charge on the use of deadly force pursuant to V.T.C.A., Penal Code, § 9.32 which reads in relevant part:

A person is justified in using deadly force against another:

(1) if he would be justified in using force against the other under Section 9.31 of this code;

(2) if a reasonable person in the actor's situation would not have retreated; and

(3) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to protect himself against the other's use or attempted use of unlawful deadly force; ...

The Court of Appeals rejected appellant's argument, stating that there was "no evidence that the appellant was reasonably warranted in drawing a gun against the complainant when he was not armed." The court also stated that the "appellant made no claim that he feared for his life, or was afraid of incurring serious bodily injury."

Appellant maintains that the complainant was indeed armed because he wielded the Coke bottle as a club. Appellant also argues that his testimony raised the issue of whether he reasonably believed himself to be in danger of death or serious bodily injury. Appellant also cites V.T.C.A., Penal Code, Section 9.01(3), to support his position. This statute defines "deadly force" as follows:

(3) 'Deadly force' means 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.

The State, for its part, relies on the argument that it must be shown that the defendant "reasonably believed" that the use of deadly force is immediately necessary before he can receive the benefit of such an instruction. The State argues that at the time appellant fired his gun he could not have reasonably believed himself to be in such peril. The State also asserts that a bottle is not a deadly weapon per se under the case law in this State.

This Court has consistently held that an accused is entitled to an instruction on every defensive issue raised by the evidence. Moon v. State, 607 S.W.2d 569 (Tex.Cr.App.1980); Garcia v. State, 605 S.W.2d 565, 566 (Tex.Cr.App.1980); Johnson v. State, 571 S.W.2d 170, 173 (Tex.Cr.App.1978); Warren v. State, 565 S.W.2d 931, 933-4 (Tex.Cr.App.1978); Esparza v. State, 520 S.W.2d 891, 892 (Tex.Cr.App.1979). This is true regardless of whether such evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of this evidence. Warren v. State, supra; Shaw v. State, 510 S.W.2d 926 (Tex.Cr.App.1974) (opinion on motion for rehearing); Carter v. State, 515 S.W.2d 668 (Tex.Cr.App.1974).

It is also well settled that a defendant's testimony alone is sufficient to raise a defensive issue requiring an instruction in the jury charge. Warren v. State, supra, at 933-934; Simpkins v. State, 590 S.W.2d 129, 132 (Tex.Cr.App.1979); Day v. State, 532 S.W.2d 302, 306 (Tex.Cr.App.1976). This is particularly true when, as is the case here, appellant made a proper and timely request for such a charge. Warren v. State, supra, at 934; see also Barton v. State, 172 Tex.Cr.R. 600, 361 S.W.2d 716 (1962).

Contrary to the Court of Appeals reading of the record it is clear to us that the complainant was indeed armed. The complainant's own testimony reveals that he struck appellant with the Coke bottle, clearly an object capable of causing death or serious bodily injury. The complainant testified that he did...