Walters v. State
| Decision Date | 05 December 2007 |
| Docket Number | No. PD-1952-06.,PD-1952-06. |
| Citation | 247 S.W.3d 204 |
| Parties | John Arlin WALTERS, Appellant, v. The STATE of Texas. |
| Court | Texas Court of Criminal Appeals |
Eddie Northcutt, Sulphur Springs, for Appellant.
Lisa C. McMinn, Asst. State Atty., Jeffrey L. Van Horn, State's Atty., Austin, for State.
Appellant shot and killed his older brother. He claimed self-defense. A jury rejected that claim and found him guilty of murder. On direct appeal, appellant claimed that the trial judge erred in failing to instruct the jury that it could consider prior verbal threats in deciding the issue of self-defense. Appellant also asserted that the trial judge violated the rule of optional completeness under Texas Rule of Evidence 107 when he allowed a 911 operator to testify that he asked appellant if he wanted to talk about what had happened, but excluded appellant's response.
The court of appeals unanimously agreed that the trial court's failure to instruct the jury concerning prior verbal threats was reversible error under Ellis v. State.1 Justice Ross also concluded that the trial court's exclusion of the 911 evidence was constitutional reversible error. Justice Carter and Chief Justice Morriss disagreed and stated that the trial court's exclusion of appellant's response to the 911 operator was not an abuse of discretion. The court of appeals ultimately reversed and remanded the case for a new trial. We granted review on the State Prosecuting Attorney's (SPA's) petition to clarify the law concerning non-statutory jury instructions and Rule 107.2 We hold that the court of appeals mistakenly concluded that appellant was entitled to a jury instruction on prior verbal threats. We also hold that, under the present facts, the trial court abused its discretion in excluding appellant's response to the 911 operator's question, but that error was non-constitutional. We vacate the judgment of the court of appeals and remand the case for further consideration.
On January, 16th, 2004, appellant drove his red truck with a trailer that "looks like a giant toothpick that carries hay" to the Tabernacle Baptist Church parking lot to test some new brakes. He hadn't driven far: Appellant lived next door to the church. He saw the church's new pastor, David Peacock, and his wife, Sunshine, standing outside the church. Appellant got out to visit and to tell Pastor Peacock that he had enjoyed the Sunday sermon. As appellant was talking to the Peacocks, his brother, Russell, pulled up in his truck with Russell's wife, Jerri. Appellant was not expecting to see his brother because of long-standing animosity between the two brothers over land, cattle, fences, taxes, insurance, and bills. Neither enjoyed their meetings. On this day, Russell wanted to talk to appellant about a water bill. Jerri stayed in their truck while Russell walked over to appellant. Appellant introduced Russell to the Peacocks, who soon went into the church.
The brothers started to argue. Jerri heard appellant say, "I've got the pasture leased for five years, and I'm not paying a damn thing." She saw appellant walk back to his truck and heard him say, Russell followed him, saying, "I know the joints you go to." Jerri could not hear appellant's response, but she saw him get into his truck. Russell followed him and stood beside the truck door. Appellant started his truck motor and began moving forward while Russell walked beside him. Appellant then sped up a bit, stopped the truck, got out, turned around, and shot Russell twice. According to Jerri, it was After hearing the gunshots, Jerri screamed, jumped out of truck, looked up, and thought that Appellant might shoot her next. She ducked down and got back into her truck.
Appellant got into his truck, backed out, and, as he was pulling out of the parking lot, told Jerri, "I'm going to call for help." He drove to his home next door and called 911. Jerri ran to Russell. Pastor Peacock came out of the church and said he had called 911. The Peacocks had been on the steps of the baptistery when they heard the shots. They both testified that there was a pause between the two shots— enough time for them to look at each other like "Was that what I thought it was?"
Corporal Moon from the Sheriff's Office was first on scene. He called EMS. Meanwhile Beth Hankins, a registered nurse and "First Responder,"3 tended to Russell. Russell was transported to the hospital, where he was pronounced dead. According to the medical examiner, Russell had been shot twice: one shot entered the left side of Russell's neck and exited the right side of his back; the other entered the right side of Russell's lower back and went out the right side of the chest. Either shot could have been lethal.
Deputies Hill and Scott went to appellant's home. Appellant had been talking on the phone to the 911 operator, who, upon learning that appellant was the suspect, had called him back. Appellant had agreed to surrender peacefully and did: "We hand-cuffed him, and he went to trying to say a few things." Deputy Scott told appellant not to say anything and read him his Miranda warnings. As he was being read his rights, appellant "looked at his wife and stated, `I just got tired of him threatening me.'" The deputies again told him to be quiet.
At trial, appellant testified that he shot his brother in self-defense with a gun that he kept in his truck for use when "checking my cattle, maybe shooting snakes or varmints." According to appellant, when he started to leave the church parking lot, he told Russell not to come asking for money anymore. Russell said that he would "come looking for" appellant and that appellant wouldn't like it. As appellant started to drive off, Russell was "as mad as the ... as the devil" and said, "I'm going to stop you today, once and for all." Russell then reached toward the door of his truck and opened it. Appellant, scared for his life, stepped out, put one foot on the pavement and shot his brother. Appellant said that he was afraid Russell would shoot him through the door. Appellant testified that his fear was well-founded because Russell had twice before threatened him with a gun.
The only disputed issue at trial was whether appellant acted in self-defense when he shot Russell. The trial judge instructed the jury on self-defense, including apparent danger, but he refused appellant's request to include an instruction on prior verbal threats.4
On appeal, appellant complained that the self-defense charge failed to instruct the jury that it could consider prior verbal threats made by the decedent. The court of appeals agreed, citing Ellis v. State.5 In Ellis, we held that when evidence supports a finding of prior threats, a defendant is entitled to a charge like the one appellant requested.6 We noted that, as far back as 1929, this Court had held that "when evidence is presented that the victim verbally threatened the defendant and that the defendant may have acted in self defense, a charge on self-defense should not be restricted to only the acts of the victim; verbal threats should be included as well."7 The court of appeals held that, because self-defense was the only disputed issue before the jury, "the trial court's failure to specifically instruct the jury concerning prior verbal threats by the decedent was `calculated to injure the rights of the defendant' and was, therefore, harmful, and reversible error."8
The SPA argues that Ellis is no longer good law in light of this Court's more recent decision in Giesberg v. State.9 In Giesberg, we held that a defendant is not entitled to an instruction on "alibi" because alibi is not a statutory Penal Code defense and the issue is adequately covered by the general jury charge which requires proof of identity.10 "Because alibi was merely a negation of elements in the State's case, its inclusion would be superfluous, and, in fact, would be an impermissible comment on the weight of the evidence."11
After Giesberg, according to the SPA, defendants are not entitled to any "prior verbal threats" instruction because that instruction was derived from a 1925 Penal Code statute that was repealed by the 1974 Penal Code.12 Thus, evidence of prior verbal threats, like alibi, is encompassed within the general self-defense jury instructions. Further, appellant received an instruction on the common-law doctrine of "apparent danger," which reinforced the statutory language concerning his reasonable belief of danger. Finally, because an instruction on prior verbal threats focuses the jury's attention on "the specific evidence that appellant claims made the victim's actions `apparently dangerous,'" its inclusion would be an impermissible comment on the weight of the evidence.13
Appellant counters that Giesberg is not applicable because it deals solely with an alibi instruction, which is not a statutory defense under the 1974 Penal Code.14 The instruction he requested relates to self-defense, a defense that is statutorily based. Further, says appellant, "the instruction requested ... is not a comment on the weight of the evidence, but rather more adequately and appropriately defined the scope of the apparent danger, without being fact specific."15
We granted review to address the effect of Giesberg on common-law jury instructions.
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