Lee v. State
| Decision Date | 30 July 2014 |
| Docket Number | No. 04–12–00316–CR.,04–12–00316–CR. |
| Citation | 442 S.W.3d 569 |
| Parties | Shawn Pierre LEE, Appellant v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Shawn D. Sheffield, Law Office of Shawn D. Sheffield, San Antonio, TX, for Appellant.
Kevin P. Yeary, Assistant Criminal District Attorney, San Antonio, TX, for Appellee.
Sitting: CATHERINE STONE, Chief Justice, SANDEE BRYAN MARION and PATRICIA O. ALVAREZ, Justices.
This case stems from Appellant Shawn Pierre Lee's conviction of the offense of burglary of a habitation with the intent to commit aggravated assault. After finding Lee guilty, the jury assessed punishment at thirty-five years confinement in the Institutional Division of the Texas Department of Criminal Justice and elected not to impose a fine. On appeal, Lee contends (1) the statement of an unavailable witness was improperly excluded under evidentiary Rule 804(b), (2) the trial court erred in refusing to give instructions on self-defense and necessity, and (3) the evidence is legally insufficient to support the jury's verdict.1 We affirm the trial court's judgment.
Our opinion requires consideration of the trial testimony and the procedural history of the case.
The testimony considered by the jury came from a litany of witnesses; we focus our attention on the alleged victim, Joel Michael Patterson, Jr., his live-in girlfriend and mother of Lee's infant daughter, Raven Riley, and the San Antonio Police officers and ballistic experts.
Patterson testified that he was living with Riley at the relevant time. He explained that the night before the incident, or April 2, 2010, he and Riley went to a Spurs game and then, about 11:00 p.m., they went to pick up Riley's daughter from Lee. Because of previous problems with Lee, Patterson and Riley called the police to assist in the exchange of custody.
Patterson explained that, the following morning, he and Riley argued and he began throwing her belongings out of the apartment. The next thing Patterson remembers was Lee “walk[ing] in my house with a gun pointed at [Riley's] head saying, ‘I'm going to get you-all, I'm going to get you.’ ” Patterson testified he grabbed the barrel of the gun with his hand, grabbed Riley, and tried to throw Riley out of the room. Although Patterson did not realize it at the time, Lee had already fired a shot hitting Patterson's hand.
Patterson continued fighting with Lee to get the gun. Lee then pressed the gun against Patterson's face and shot him, knocking Patterson's teeth out of his mouth. Patterson remembers more fighting and then Lee standing over him with the baby in his arms. Before leaving, Lee shot Patterson in the torso, striking Patterson's liver and lungs.
During his testimony, Patterson was adamant that he did not have any weapons, particularly a gun, at the apartment. Although he could not testify positively, Patterson conceded the door was probably open when Lee arrived at the apartment. He further acknowledged screaming at Riley to grab the baby and leave the apartment but that Riley left the apartment without the baby.
Riley testified that on the night in question, she had been living with Patterson for a couple of months. The night before the incident, she and Patterson requested police assistance at Lee's house because Lee had refused to answer her calls about picking up her daughter. Riley testified that on the morning of April 3, 2010, she and Patterson were arguing; he told her to get out of the apartment and she began packing her bags. While in the bathroom, Riley heard a shot and then turned around to see Lee dressed in all black.
After Lee had shot Patterson the first time, Riley witnessed Lee walk towards Patterson and shoot him again. She then ran out of the apartment and heard the third shot. Outside, she called 911, and then saw Lee run off with the baby. As to the gun, Riley testified that she was aware that Lee owned a gun. She also remembered a conversation between Lee and Patterson about a gun, but she could not remember any details.
Riley admitted that the State removed all four of her children from her care. On cross-examination, Riley explained that, during the week of the shooting, she had been staying at Lee's house. Patterson, on the other hand, was staying at her apartment, the location of the shooting. She acknowledged that Patterson was throwing her out of her own apartment.
Several San Antonio police officers and crime scene investigators testified as to the collection of three shell casings and two bullet fragments at the apartment, as well as two gun boxes at Lee's residence. The State called firearms expert Edward Wallace who testified that all three cartridges were fired from the same weapon. Additionally, he testified that, in his opinion, both the bullet fragments and the shell casings were fired from a .9 mm Smith and Wesson handgun.
In his case in chief, Lee's counsel made attempts to (1) introduce into evidence, through two police officers, a DVD showing an interview of Lee by the police, and (2) request that the trial court attach a subpoenaed witness, Brad Collins, who failed to appear at trial. The trial court granted the State's objections to the DVD based on improper predicate and hearsay, and denied Lee's request to attach the witness. Lee's counsel subsequently offered Collins's statement pursuant to the unavailable witness hearsay exception. The State objected, and the court sustained the objection.
After the parties rested, defense counsel requested jury instructions on: (1) self-defense, (2) necessity, and (3) defense of a third person. After reviewing each submission, the court made a determination that the evidence did not support any of the requested instructions and denied the requested instructions.
Neither Collins's statement nor any of the defense's requested instructions was included in the appellate record. On March 20, 2014, this court abated the appeal and ordered the trial court to determine if these documents were either lost or destroyed in accordance with Texas Rule of Appellate Procedure 34.6(f)(4) ; and if so, the trial court was ordered to make a determination of whether the exhibits could be replaced by agreement of the parties or with a copy the trial court determined to accurately duplicate with reasonable certainty the original exhibits. See Tex.R.App. P. 34.6(f)(4).
On April 10, 2014, the trial court conducted a hearing and determined the original trial exhibits were lost. After hearing testimony from the trial prosecutor, reviewing documents submitted by the staff attorney from the Bexar County Criminal District Courts, and reviewing the reporter's record from the trial, the trial court determined the exhibits offered in the supplemental reporter's record “accurately duplicate, with reasonable certainty, the original trial exhibits.” For the purposes of this appeal, this court incorporated the documents produced at the April 10, 2014 hearing as part of the appellate record.
On appeal, Lee argues: (1) the trial court erred in excluding Brad Collins's statement, (2) the trial court erred in failing to include self-defense and necessity instructions in the court's charge, and (3) the evidence is insufficient to support the trial court's judgment. We address each separately.
Lee argues the trial court erred by refusing to allow Lee to introduce the statement made by Brad Collins, an unavailable witness, into evidence under a hearsay exception. See Tex.R. Evid. 804(b)(1).
We review a trial court's decision on whether to admit former testimony under rule 804(b)(1) for an abuse of discretion. Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App.1994) (en banc); accord Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App.2003) ; see also Tex.R. Evid. 804(b)(1). We do not conduct a de novo review, but instead limit our role to determining whether the record supports the trial court's ruling. Coffin, 885 S.W.2d at 149. The trial court's exclusion of testimony is an abuse of discretion only if the decision lies outside the zone of reasonable disagreement. See id.; accord Zuliani, 97 S.W.3d at 595 ; Wilson v. State, 195 S.W.3d 193, 202 (Tex.App.-San Antonio 2006, no pet.).
Lee contends that because both the State and the defense subpoenaed Collins, the trial court erred in denying Lee's request to attach Collins to procure his testimony. Lee argues that based on the trial court's failure to issue an order of attachment, Collins was unavailable to testify; because Collins was unable to testify, the trial court should have allowed Collins's previous statement to be offered into evidence.
The State counters that Rule 804(b)(1) requires more than unavailability, it must also be the kind of testimony admissible pursuant to Rule 804(b)(1). Tex.R. Evid. 804(b)(1).
In determining whether the trial court abused its discretion in excluding the proffered testimony, we first consider the testimony in question. Collins's entire statement2 provided as follows:
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