McBride v. State, No. 13-04-575-CR (Tex. App. 7/13/2006)
| Decision Date | 13 July 2006 |
| Docket Number | No. 13-04-575-CR.,13-04-575-CR. |
| Parties | CHRIS McBRIDE, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 130th District Court of Matagorda County, Texas.
Before Chief Justice VALDEZ and Justices YAÑEZ and CASTILLO.
A jury convicted appellant Chris McBride of murder2 and assessed punishment at thirty years confinement in the Institutional Division of the Texas Department of Criminal Justice. By two points of error, McBride asserts that the trial court reversibly erred by denying him a requested instruction on his justification defenses of self defense and necessity.3 We affirm.
McBride testified, and essentially claimed, that he killed Harrison in self defense and shot Harrison out of necessity.4 Events leading to Harrison's death unfolded as follows.
McBride had filed for divorce in February 2004, and a mutual restraining order was pending with respect to McBride and his wife, "Melissa." The two were living apart. Their two minor children were living with McBride. Melissa admittedly had an ongoing extra-marital affair with Harrison, spanning approximately three years. On Saturday, April 10, 2004, Melissa advised McBride that she was taking Allison, the younger of their two children, to a beach near Sargent, approximately twenty minutes away from their homestead in Sweeny. As it was Easter weekend, McBride was to join them for the day. However, work delayed him.5 Ultimately, he headed toward Sargent and met Melissa, who was apparently returning to Sweeny. They stopped and Allison joined McBride while Melissa went to a convenience store to buy insect repellant. McBride observed that Allison lacked undergarments and clothes.6 Meanwhile, at the convenience store, Melissa had telephoned Harrison. After waiting what he construed as a considerable time for the short trip, McBride proceeded to look for Melissa.7 En route, he saw her at a six-room motel. The family had twice before stayed at the six-room complex.8 Perplexed that the weather and the child's need for clothes might suggest a return to Sweeny, McBride confronted Melissa about the motel room she had reserved and, because it was Easter weekend, "let it go." In room 3, Melissa proceeded to shower while McBride fed Allison. The motel manager appeared at the door with a telephone in hand, indicating the caller requested to speak to Melissa. McBride recognized the number on the caller ID as Harrison's mother's telephone number. While handing the telephone to Melissa, McBride admittedly struck her with it. An argument ensued. Melissa left the room and drove off but returned in short term. While the argument continued, McBride said he would leave to get the child's clothes from Sweeny and left. Melissa stayed. She discovered she locked her keys in her car and called Harrison to request he take her the extra set from her mother's house.
While at his residence, McBride pondered for approximately an hour and a half over the events in Sargent and decided not to return.9 He cleaned a shotgun he usually carried with him. He loaded the shotgun with birdshot. He remembered that the child needed clothes and decided to return to Sargent. He gathered the child's clothes, jackets for the three of them, his loaded rifle, a shotgun, and ammunition,10 and loaded them in the truck. Before leaving town, he drove by Harrison's house to see if he was home. Harrison's car was there. McBride assumed he was home and proceeded to Sargent.
In Sargent, McBride saw Harrison's mother's car at the motel. The time was approximately 2:00 a.m. After he parked, McBride put one live round in the chamber of the shotgun, took the child's clothes, and concealed the shotgun with a jacket. Hearing footsteps, Melissa looked out the window and saw McBride approaching. She saw the jacket draped over his shoulder and assumed he was armed. She threw Harrison's gun to Harrison.11 At room 3, McBride tried to open the door and it was locked. He knocked, and Melissa told him to leave. He kicked the door, but it did not open. The jury heard that McBride yelled profanities at Harrison, telling him to step outside and that he was going to kill him. Harrison responded with what McBride termed "something sarcastic."12 McBride broke a panel of the window next to the door with his weapon. Using his 9 millimeter handgun, Harrison fired at McBride from inside the room. The bullet broke what McBride said was the bottom window pane. McBride testified the glass cut his face. McBride returned fire.13 Harrison fired again. McBride shot again. Whether Harrison fired a third shot is disputed.14 McBride fired a third shot. McBride described for the jury the location of Harrison by the flash created when Harrison fired his weapon. In his statement to police, McBride described Harrison's movement in the apartment as first near the door to the room, then in the middle of the room, and then at the back of the room toward the bathroom.15 Evidence showed that the room was small.
Harrison died at the scene as the result of injuries sustained from the shotgun blast to his neck and chest.16 Before collapsing, Harrison told Melissa that he was hit and he was out of bullets.17 McBride fled the scene. He testified that he left when Harrison stopped shooting. He stated he did not retreat because he feared Harrison would shoot him if McBride made his way down the flight of stairs to the truck. He testified he was unaware that Harrison died and was out of bullets. McBride testified that he was in "a defensive state of mind."
McBride eluded capture for several hours and ultimately surrendered when surrounded by law enforcement. When arrested, he was told Harrison was dead. McBride stated he was glad. In his statement to police, McBride stated that Melissa was "just as guilty" as he was for killing Harrison. Some time later, McBride testified that he believed that there might have been a plan afoot to kill him. He testified that one of Harrison's bullets lodged in a stud in the wall of the motel room would have hit his chest if not blocked. McBride further testified that the other bullets were directed at him. He stated that, when returning fire, he aimed toward the direction of the blast from Harrison's gun.
The jury heard the history of acrimony between the two men. The jury also heard that both men were armed well before the date in question and, by various means, this was made known to each. The two exchanged numerous verbal threats. McBride testified that Harrison had, on one or more occasions, pointed a pistol at him. McBride testified that he considered Harrison dangerous, stating that it could be assumed that someone armed with a gun is going to use it. A prior physical altercation between them resulted in an aggravated assault charge against McBride, which remained pending at the time of trial.18 Both regularly used methamphetamines. Both physically assaulted Melissa.19
McBride objected to the charge because it lacked instructions on self-defense and necessity. He requested an instruction on self-defense and necessity. The trial court overruled the objections. The jury charge does not contain the instructions. It does contain a lesser-included charge of manslaughter which, by its verdict, the jury rejected.
A defendant has the right to an instruction on a defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may believe about the credibility of the defense.Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996); see also Bowen v. State, 162 S.W.3d 226, 229 (Tex. Crim. App. 2005); Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999);; Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993) (en banc). A defendant's testimony alone may suffice to raise a defensive issue requiring submission of an instruction on a defensive issue. Pennington v. State, 54 S.W.3d 852, 856 (Tex. App.-Fort Worth 2001, pet. ref'd) (citing Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987)). We view the evidence submitted in support of the defense in the light most favorable to the defendant. Id.
Our first duty in analyzing a jury charge issue is to determine whether error exists. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003) (en banc) (citing Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996)). Then, if we find error, we analyze that error for harm. Middleton, 125 S.W.3d at 453; see Posey v. State, 966 S.W.2d 57, 60 & n.5 (Tex. Crim. App. 1998) (en banc).
By his two points of error, McBride maintains that the trial court reversibly erred by denying instructions on his defenses of justification. The State responds that McBride's general objection to the jury charge is insufficient to preserve error.
To preserve error relating to the charge, a defendant must either object to the charge or make a request for a special charge on the issue in question. TEX. CODE CRIM. PROC. ANN. arts. 36.14, 36.15 (Vernon Supp. 2005); Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim. App. 1996) (en banc); Garza v. State, 55 S.W.3d 74, 77 (Tex. App.-Corpus Christi 2001, no pet.) Under article 36.14, the accused is required to object and obtain an adverse ruling to preserve any error. Vasquez, 919 S.W.2d at 435. However, under article 36.15, if the accused requests a special charge no objection is required to preserve error. Guzman v. State, 567 S.W.2d 188, 190 (Tex. Crim. App. 1978). All that is necessary under article 36.15 is that the requested charge be in writing or dictated to the court reporter. The request need only be sufficient to call the trial court's attention to the omission in the court's charge. Stone v. State, 703...
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