Kitchens v. State
| Decision Date | 03 December 2019 |
| Docket Number | NO. 01-18-00518-CR,01-18-00518-CR |
| Parties | WILLIAM TRAVIS KITCHENS, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 178th District Court Harris County, Texas
Rejecting appellant William Kitchens's self-defense claim, a Harris County jury found Kitchens guilty of murder and assessed punishment at fifteen years in prison. Kitchens appeals, asserting five issues. We affirm the jury's guilt finding but reverse for a new punishment hearing.
A Harris County grand jury indicted Kitchens for murder in the March 7, 2016 shooting death of Hipolito Desoto. On that morning, 44-year-old Desoto rode his motorcycle to Kitchens's auto-repair shop, IDB Racing, which did repair, maintenance, and restoration services on high-end, exotic, and European cars. IDB Racing was located on FM 1960 West in Houston, an area Harris County Sheriff's Office (HCSO) Detective Chris Cooke described as a high-crime area that gets "hit for burglary a lot." There were bullet holes in the shop's bay doors when Kitchens rented the shop.
IDB Racing's premises consisted of a three-bay garage area with a small office. Retired HCSO Chief Deputy Michael Smith, who testified as a self-defense expert for Kitchens, described the office as cramped; it measured seventeen feet and ten inches from the glass entry door to the wall behind Kitchens's desk, with the front of Kitchens's desk being twelve feet from the entry door, a distance that Smith stated a person could cover in eight-tenths of a second.
Directly across the parking lot from IDB Racing was a machine shop with a sign indicating that it was a machine shop. IDB Racing did not have any signage suggesting it could be confused with a machine shop; its signage indicated that it was an automotive repair facility.
When he saw Desoto ride up on his motorcycle shortly before 10:00 a.m., Kitchens, who was age twenty-nine, five feet and seven inches tall, and 160 pounds at the time, opened his desk drawer to make sure his pistol was available. Kitchens had never met Desoto, who was five feet and seven inches tall and 280 pounds. Desoto entered IDB Racing's office and began talking with Kitchens. The entire incident was recorded on IDB Racing's surveillance video, which did not record audio.
Kitchens described Desoto's demeanor as "irritated," with a tone of voice that "wasn't such that I would expect somebody who was coming into a business unannounced looking for somebody to be like." Desoto asked for the whereabouts of the "long-haired hippy machinist."1 Kitchens testified that Desoto's tone and demeanor caused him to become "very uneasy."
According to Kitchens, when he advised Desoto that no one fitting that description worked at IDB Racing, Desoto became angrier, began violently moving his hands around, and told Kitchens that he "didn't fucking get it." Kitchens said that he asked Desoto if the person he was describing used to work at IDB Racing or perhaps at another shop in the area, but Desoto "seemed to be getting more and more angry that I couldn't tell him where this guy he was looking for was." Kitchens testified that he was terrified and that he "didn't know what to tell him to help him." Chad Finch, an IDB Racing employee and a good friend of Kitchens, testified that he saw Desoto pull up on his motorcycle and come into the office, after which Finch heard Desoto, but not Kitchens, yelling.
Kitchens testified that he "expressed to [Desoto] that if he wasn't able to give any more information about the person that he was looking for, then he needed to leave" the premises. According to Kitchens, Desoto again told him that he "didn't fucking get it," threw his hands at Kitchens as if to push away, and began moving towards the front door. Kitchens said that, as Desoto was opening the door, apparently to leave, he said to Kitchens, "shit like this is why we will be back to beat your ass."
Kitchens testified that he responded to Desoto's threat to "come back and beat [Kitchens's] ass" by responding back "the same thing he said, out of disbelief." Kitchens said that Desoto then pulled the door closed, took the ear buds out of his ears, turned as if to enter back into the office, and "yelled that he was actually going to fuck me up right now." Desoto was unarmed during the entire incident and had his hands by his side when he made this final comment to Kitchens.
Kitchens thought he was about to be beaten to death by Desoto because "it would be nothing" for the 100-plus pounds bigger Desoto to "beat [Kitchens] to a pulp and not even blink." Kitchens drew his pistol from his desk drawer, stepped towards Desoto, and shot Desoto, who fell to the floor. Asked by his attorney why he shot Desoto, Kitchens responded, "I thought he was going to kill me." When asked why he thought that, Kitchens said, "Because there was this large stranger in my office that thought I was hiding somebody from him[, and] that was looking for somebody that he seemed angry about." Kitchens added that he felt he had no other choice but to shoot Desoto.
As Kitchens walked forward to leave the office toward the hall entry to the bays, Desoto started to push himself up and looked at Kitchens. Kitchens testified that he thought Desoto "was about to get up off the ground and beat me to death" and that he fired additional shots at Desoto. One of the shots struck Desoto just above the right eye. Kitchens shot Desoto a total of five times. Desoto died as the result of gunshot wounds to the head, chest, and back.
The above events transpired over the course of approximately two minutes, and the video confirms the movements and actions of Kitchens and Desoto as described by Kitchens at trial.
After shooting Desoto, Kitchens called 9-1-1, stated that a shooting had occurred and requested police and an ambulance, but he did not answer additional questions and hung up. After calling 9-1-1, Kitchens next called Texas Law Shield, a program he had joined, to speak to an attorney. The 9-1-1 operator called IDB Racing back, and one of Kitchens's employees talked to the operator. Deputy Constable Jennifer Martinez was dispatched at 9:58 a.m. and arrived at IDB Racing at 10:04 a.m. Upon arrival, she handcuffed Kitchens, bagged his hands for gunshot residue testing, and put him in the back seat of her patrol vehicle.
HCSO Homicide Detective Cooke was notified of the shooting around 10:30 a.m. and responded sometime after 11:00. Cooke stated that when he arrived and first saw Kitchens, he observed that Kitchens was distraught, crying, and "visibly upset." Kitchens had been in the back of Martinez's patrol car for an hour to an hour and a half before Cooke talked to Kitchens the first time. Cooke testified that Kitchens was cooperative and gave him two statements—a brief one before Kitchens spoke with two attorneys, who had arrived in person after Kitchens's call to Texas Law Shield, and a second interview after Kitchens had spoken with his attorneys and conducted with Kitchens's attorneys present. After that, Cooke released Kitchens to go home, and another officer with video expertise later arrived to assist Cooke in viewing the surveillance video of the shooting. Cooke testified that, after viewing the video, he was shocked because of Desoto's lack of observable aggression and was of the opinion that the video was not consistent with the information he had received from Kitchens. Cooke further opined that the size difference between Kitchens and Desoto did not change his investigation because he did not see anything aggressive on Desoto's part.
After being qualified as an expert to testify on the use of deadly force, retired HCSO Chief Deputy Michael Smith testified on behalf of Kitchens. After having been a licensed Texas peace officer for over forty years and having testified multiple times as an expert witness, this was Smith's first time to testify for the defense.
Smith testified that, when a person believes that something is about to happen that puts him or her in fear of his or her life or fear of being severely injured, a person is allowed to use deadly force to defend against apparent danger, even if that person turns out to be incorrect. Smith further testified that deadly force could be used appropriately when there exists Smith also said that a person who has been shot "absolutely" can continue to pose a threat.
Smith testified that, based on Desoto's body language in the video, and assuming that Desoto had verbally threatened Kitchens as Kitchens had testified, Kitchens was justified in shooting Desoto. Smith concluded that, under the facts, Kitchens was in fear and was entitled to use deadly force against the perceived use of deadly force by Desoto, a person who was more than 100 pounds bigger than Kitchens.
The jury was instructed in the charge on the law of self-defense and the use of deadly force but found Kitchens guilty of murder.
In his first issue, Kitchens contends that the evidence is insufficient to support the jury's determination that he did not act in self-defense.
If the issue of the existence of a defense is submitted to the jury, the court must charge the jury that a reasonable doubt on the issue requires that the defendant be acquitted. TEX. PENAL CODE. § 2.03(d); Winkley v. State, 123 S.W.3d 707, 712 (Tex. App.—Austin 2004, no pet.). In other words, the trier of fact must find against the defendant on the defensive issue beyond a reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).
Deadly force used in self-defense is a defense to a murder prosecution if the use of deadly force is...
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