Vanbrackle v. State

• Decision Date: 04 November 2005
• Docket Number: No. 03-04-00272-CR.,03-04-00272-CR.
• Parties: Gerald VANBRACKLE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Supreme Court

179 S.W.3d 708

Gerald VANBRACKLE, Appellant, v. The STATE of Texas, Appellee.

No. 03-04-00272-CR.

Court of Appeals of Texas, Austin.

November 4, 2005.

Christopher P. Morgan, Austin, for appellant.

C. Bryan Case, Jr., Asst. District Atty., Austin, for appellee.

Before Chief Justice LAW, Justices PATTERSON and PEMBERTON.

OPINION

BOB PEMBERTON, Justice.

A jury found appellant Gerald VanBrackle guilty of attempted murder and aggravated assault. See Tex. Pen.Code Ann. §§ 15.01, 19.02 (West 2003), § 22.02 (West Supp.2004-05). After finding that appellant had two previous felony convictions, the district court imposed forty-year prison sentences for each offense. Among the issues raised on appeal is appellant's assertion that the trial court erred by refusing to instruct the jury on the law of self-defense. We will sustain this contention, reverse the judgments of conviction, and remand for a new trial.

Evidence

It was undisputed at trial that appellant shot Johnnie Weston on the afternoon of December 14, 2002, outside a neighborhood grocery store at 14th Street and Cedar Avenue in Austin. There was, however, considerable dispute with respect to the circumstances surrounding the shooting.

State's witnesses

Weston testified that Lee Standberry gave him a ride to the grocery store to purchase cigarettes. Outside the store, appellant confronted Weston brandishing a pistol and demanding that Weston pay him the money he was owed. Weston said he told appellant that he did not owe him any money. Weston then grabbed the barrel of the pistol and "we started scuffling over the gun." A third person who was later identified as Billy Charles Warren began hitting Weston with a two-by-four or large stick. Weston said that he released his grip on the pistol and fell face-down on the ground. According to Weston, appellant then shot him in the back.

Weston testified that someone went through his pockets as he lay in the street after being shot. He denied being armed. Weston also testified that appellant had previously wrecked a car borrowed from Weston. He said that this had angered him at the time, but he "didn't stay mad long." Weston testified that about one week before the shooting, appellant threatened him with a pistol at the same grocery store.

One of the doctors who treated Weston testified that the bullet entered his body "from the side, posteriorly from sort of the shoulder, and went straight into the spinal canal." The spinal trauma left Weston a paraplegic.

Standberry testified that after dropping Weston off at the store, he had continued on to a nearby tire shop. While he was at the tire store, someone drove up and said, "There's a guy laying in the middle of the street, looks like he is dead." Standberry continued, "So everybody really ran around there and looked. And I said, Man, that's Johnnie laying in the middle of the street." Standberry testified that he remained with Weston until medical personnel and the police arrived. He denied taking anything from Weston's pockets. He also confirmed Weston's account about the incident at the store one week earlier.

Kyle Taylor was approaching the 14th and Cedar intersection in his car when he saw three men fighting in the street. Taylor testified that one man was lying on the ground while the other two stood over him. "[O]ne man was punching the man that was down on the ground. And the other one looked like he was trying to take something out of his hand." As Taylor was looking for a place to park, he heard a single gunshot. He looked back at the fight scene, where he saw the man lying in the street and the other two men walking away.

Elizabeth Rodriguez lives on Cedar Avenue near the grocery store. On the day in question, her attention was drawn by the sound of an argument. She stepped outside and saw two men "shouting at each other and shoving each other." They appeared to be wrestling over something. A third man walked up and began to hit the legs of one of the struggling men. The latter man turned and began to run away. The man with whom he had been fighting "lifted up his hand," which was holding a pistol, and shot the fleeing man.

Theodis Daniel, Sr., owns an air conditioning repair shop on Cedar Avenue across the street from the grocery store. He was working at the shop when he heard a "commotion." He looked across the street and saw appellant (whom he knew) and another man "tussling, but I did not know what they were — had in their hands." A third man who was armed with a "stick or limb or whatever" joined the fray. The men then separated and Daniel could see that appellant was holding a handgun. "As he got the — after they broke apart, the individual just kind of turned a little bit to the — to his left, he kind of turned a little bit to the left, and then he [appellant] just fired." Daniel testified that the man who was shot had "turn[ed] away . . . as if maybe to flee or I don't know, maybe get out." Daniel was of the opinion that appellant deliberately shot Weston.

Theodis Daniel, Jr., was working on a car outside his father's shop on the afternoon of the shooting. His attention was drawn by "a bunch of movement" in the street. Two men, one of whom he recognized as appellant, appeared to be "wrestling or play-fighting." Appellant called out to a third man to "hit him, hit him." The third man "popped him one good time" in the lower back. Appellant and the man he was fighting fell to the ground, and Daniel could then see that they were struggling for control of a pistol. Appellant "snatched [the gun] out of his hand," then he "[t]urned it around with his hand and shot him one time, and that was it." Daniel testified that the victim "was trying to run. You know, I could have been wrong, but he just popped him and he fell face first to the ground." It was Daniel's impression that appellant had been defending himself from Weston's initial aggression, and that appellant had taken the gun from Weston and shot him "just to make sure." He said that Weston had nothing in his hands when he was shot, that he saw no other weapons, and that no one took anything from Weston as he lay in the street before the police arrived.

Defense witnesses

Billy Charles Warren testified that he and appellant were with a group of men standing outside the grocery store when Weston, who appeared to be intoxicated, arrived. Warren was speaking to another individual when he sensed "a little commotion." He turned and saw appellant and Weston wrestling. As Warren watched, Weston reached in his pocket and pulled out a gun. Appellant began to struggle for control of the gun and called out to Warren for help. Warren said, "I don't know where I got the stick from, but I starting hitting him." All three men fell to the ground. Warren said he did not see what happened next, but that he heard the gunshot. "All I know is when I turned back around, the gun was in [appellant's] hand." He and appellant then fled.

Alton Earl Jones was one of the men standing outside the grocery store. He testified that as Weston approached, appellant asked him what he wanted. "[T]hat's when he [Weston] went in his pocket and fumbled and pulled out the gun." Weston cocked the pistol and walked closer to appellant. Appellant pushed Weston's arm "up in the air" and they began to wrestle. Appellant called out for help and Warren hit Weston with the stick. Appellant and Weston fell to the ground and the gun fell loose. Jones said that each man scrambled for the gun as they got up from the ground. "[Appellant] ended up getting the gun first, and then Mr. Weston got up, he started fumbling in his pocket, like, for something." Asked when the gun was fired, Jones replied, "When [appellant] thought his life was in danger, because he was still fumbling in his pocket like he had another object." According to Jones, after the shooting Standberry took "an object" from Weston's pocket.

Jesse Shaw testified that he walked out of the grocery store and saw Weston pointing a gun at appellant. Shaw said that appellant "tried to defend himself" by "trying to get the gun away from him." Appellant shouted for help and Warren, who Shaw did not then know, hit Weston on the back of his leg. Appellant and Weston fell, but they continued to fight over the gun. Shaw testified, "Mr. Weston got to his feet, and Mr. VanBrackle got up to his feet. You know, Mr. Weston meant like he was getting ready to pull something" out of his pants pocket. "And that was it. The gun went off." Shaw said that appellant did not aim the gun at Weston. Instead, when appellant picked up the gun, it "just went off." Shaw testified that he there was no question in his mind that Weston initiated this incident.

Discussion

The district court denied appellant's request for a self-defense instruction. The court did, however, instruct the jury on what was referred to at trial as the "accident defense." See Rogers v. State, 105 S.W.3d 630, 637 (Tex.Crim.App.2003); Williams v. State, 630 S.W.2d 640, 644 (Tex.Crim.App.1982). The instruction told the jurors that "a person commits an offense only if he voluntarily engages in conduct," and it directed them to acquit appellant if they believed or had a reasonable doubt that "the shooting was a result of an accidental discharge of the gun while Johnnie Weston and the defendant were struggling or scuffling for the possession of the gun and was not a voluntary act or conduct of the defendant." See Tex. Pen.Code Ann. § 6.01(a) (West 2003). It appears from the record that the trial court believed that the submission of this instruction precluded the submission of an instruction on self-defense. When, after both sides had closed, defense counsel renewed his request for a self-defense instruction, the court replied, "On yesterday, I explained to you that you could not have both the accident and the self-defense." The court added, "I have included the accident in the Court's charge, thereby prohibiting you from having the...