Reeves v. State, 01-10-00395-CR
| Decision Date | 15 November 2012 |
| Docket Number | NO. 01-10-00395-CR,01-10-00395-CR |
| Parties | GARY PATRICK REEVES, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
The State moved for rehearing of our January 26, 2012 memorandum opinion. We grant the motion for rehearing, withdraw our January 26, 2012 opinion, and issue this opinion and judgment in its stead. Our prior judgmentremains unchanged. We dismiss the State's motion for en banc reconsideration as moot.1
A jury found appellant Gary Patrick Reeves guilty of murder and assessed his punishment at eighteen years' confinement.2 In a single point of error, Reeves contends that the trial court erred when it charged the jury on the law of provoking the difficulty, over his timely objection that the evidence did not raise the issue. We reverse and remand for further proceedings consistent with this opinion.
Reeves was indicted for, and ultimately convicted of, intentionally and knowingly causing the death of Jeromie Jackson by stabbing him with a deadly weapon, namely, a knife. Reeves testified that he had known Jackson for about a year and that he and Jackson met that evening at their mutual friend Jesse Adams's girlfriend's house. Reeves suggested that the group gathered go out for drinks. When Adams and another declined the invitation, Reeves and Jackson went alone. Reeves's plan was to buy the drinks and pay Jackson for gas so Jackson would drive them to the bar and then drop him home afterwards. However, instead of a ride home, Jackson drove him back to Adams's girlfriend's house about midnight. At that time, Donna Whitfield and Chris Williams were on the front porch, andwhen Jackson asked to see Adams, Whitfield went into the house to get him. Reeves also testified that after Whitfield left, Jackson asked for ten dollars to buy a crack rock from Adams. When Reeves declined, Jackson asked him how much he was going to pay for the gas and when Reeves replied "five dollars," Jackson yelled that his truck was not moving for five dollars worth of gas. Reeves then decided that he could do without a ride home after all; he could stay with his aunt who lived nearby. Jackson pressed further for the gas money, and the argument escalated to such a degree that Whitfield opened a window and scolded them to keep it down so as not to wake her baby.
Jackson, according to Reeves, became increasingly agitated, and when Jackson approached Reeves, threatening, "You're going to make me take all your money," the two men began to wrestle. Reeves admits that after Jackson had him pinned to the ground, in order to get free, he bit Jackson on the face. Shortly thereafter, Adams came out of the house and broke up the fight. According to Reeves, this was the first time he and Jackson had fought. Reeves testified that at this point, Jackson was clearly enraged because Reeves had bit him on the face and as Adams walked Jackson out to the sidewalk, Jackson turned back to Reeves and screamed, "I'm going to kill your little ass when I get my hands on you, Jesse ain't going to be around all the time."
Jackson, who had by this time been asked by several folks at the house to leave, drove off. Reeves stayed behind to give Jackson time to leave the neighborhood and to look for a cell phone he had lost during the fight. A few minutes later, as Reeves and Adams walked out of the driveway, Jackson ran at Reeves full speed, tackling him and pinning him against the fence. Jackson "start[ed] swinging wildly, throwing punches from everywhere." According to Reeves, he tried unsuccessfully to block Jackson's punches. Although he made several requests for help, Adams refused his repeated pleas.
Jackson picked Reeves up, slammed him to the ground and started reaching for Reeves's pockets to take the money out. The two men continued to fight while Adams watched. According to Reeves, Jackson then grabbed his throat and began to choke him. Fearing for his life, and gasping for air, Reeves reached for the knife he carried in his pocket, and he started swinging. Reeves testified that he did not know how many times he struck Jackson, only that he was eventually able to get away from him.
The jury was offered a decidedly different version of events by other eyewitnesses. Whitfield testified that she and Williams were sitting in front of the house in Adams's truck and when Jackson and Reeves pulled up in front of the house, both men were talking loudly about gas money. The men got out of the truck and continued their arguing. Whitfield testified that Jackson and Reevesbegan to wrestle soon thereafter, but she really could not see what was going on due to her poor eyesight. At that point, Williams got out of Adams's truck and broke up the fight, but the two men resumed fighting shortly thereafter. Whitfield told both Jackson and Reeves to stop fighting and get out of her sister's yard. After Williams broke up the fight for a second time, Whitfield heard Jackson state that he was "through with it" and "don't want to fight" and drove off. She testified that after Jackson left, Reeves picked up his jacket and phone and as he was leaving, encountered Jackson again who had evidently walked back to the house. The two men began to fight again. At that point, Whitfield went inside the house to get her sister, but when she looked out the open window, she heard Jackson say that Reeves had stabbed him and heard Reeves say afterwards: "Y'all not going to keep messing with me, y'all not going to make me feel like . . . a punk."
Adams, the neighborhood friend of both Reeves and Jackson, testified that Jackson called him when he and Reeves were leaving the bar to tell him that they were going to stop by and see him. Adams testified that Jackson sounded excited on the phone and that he could hear Reeves talking in the background. According to Adams, Jackson and Reeves were arguing over gas money.3
By the time Jackson and Reeves arrived at the house, Adams was in bed with his girlfriend, but his girlfriend's sister, Whitfield, and her friend, Williams,were out in the front of the house. Although Reeves testified that Adams broke up the first fight, Adams testified that he did not come outside until after that fight was over and Jackson was in the process of moving his truck from the driveway. According to Adams, he heard a commotion, went outside and he saw Reeves standing in the yard by Adams's truck and Jackson moving his truck from driveway. Adams testified that Jackson parked his truck down the street and then walked back to the house and stood at the gate, at which point Adams asked the two what was going on. Jackson, his face bleeding, told Adams that Reeves bit his nose. Reeves countered that Jackson was "tripping" and was asking for more money. Adams also testified that Reeves told him, "Jesse, you better get him, I'm going to hurt him, do something bad to him." Adams later admitted that he had told the police that Reeves had actually said, "I'm going to kill him, I'm going to kill him." Adams then noted that since Reeves was "not a violent dude," he did not take him seriously at the time. "He's not a violent person at all." Adams also testified that Jackson, who was standing at the gate, was not violent either and was a good guy, but Reeves had pushed him too far when he bit his face. According to Adams, had Jackson not suffered the face wound, he probably would have just gone home. Instead, Jackson threatened: "I'm going to get him, I'm going to get him." Adams later admitted that after he moved his truck, Jackson returned to the house only because he wanted to fight.
Adams testified that he walked Reeves to where Jackson was waiting on the sidewalk in an attempt to resolve the situation. Jackson and Reeves, however, started pushing each other and then wrestling. Adams testified that he thought that Reeves was just punching Jackson, until Jackson cried, "He's stabbing me Jesse," at which point, Adams tried to stop the fight, but before he could do so, Reeves took another swing at Jackson and stabbed him in the back. When told, "[Y]ou killed Jeromie," Reeves replied, At that point Adams tended to Jackson and called 9-1-1. When he looked back, Reeves was gone. Reeves surrendered to police a few days later.
When asked why he did not try to stop the fight sooner, Adams replied that Adams also testified that he did not see Jackson with any type of weapon that night and assumed that they were simply going to fight it out with their fists.
Reeves objected to the inclusion of an instruction on the law of provoking the difficulty as a qualification on his right to self-defense. His objection, however, was overruled and the jury was instructed on the law of provoking the difficulty. The jury found Reeves guilty of murder and assessed his punishment at eighteen years' confinement.
In his sole point of error, Reeves contends the trial court erred by overruling his objection to the jury charge on provocation. Reeves argues that the court's inclusion of such an instruction was improper because there was no evidence to support the proposition that he provoked the difficulty.
Our analysis first requires an initial determination of whether error actually exists in the charge. Olivas v. State, 202 S.W.3d 137, 143-44 (Tex. Crim. App. 2006); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Only if the court finds error do we proceed to the second step that requires examination of harm resulting from the error. Olivas, 202 S.W.3d at 143-44; Almanza, 686 S.W.2d at 171.
Generally, "a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect...
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