Simminette D. Shinette v. State

Opinion issued May 19, 2005 In The Court of Appeals For The First District of Texas NO. 01-04-00242-CR SIMMINETTE DRAKE SHINETTE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 56th District Court Galveston County, Texas Trial Court Cause No. 03CR2154 MEMORANDUM OPINION A jury found appellant, Simminette Drake Shinette, guilty of the third-degree felony offense of unlawful possession of a firearm by a felon. The trial court assessed punishment at three years’ confinement. In this appeal, Shinette contends that (1) the evidence is factually insufficient to disprove his necessity defense; (2) the trial court erred in admitting testimony concerning his prior felony conviction for a violent offense; and (3) he did not receive a fair determination of the defense of necessity because the jury was not given a definition of proof “beyond a reasonable doubt.” The Facts The evening of June 27, 2003, Farrah Cox visited her sister, Dianne Duvall, at her apartment in Galveston, Texas. As she arrived, she noticed a man, later identified as Scott Hargrove, on a neighboring home’s porch. Cox observed Hargrove drinking beer and throwing the empty cans into the neighbor’s backyard. Cox got out of her vehicle and confronted Hargrove about his behavior. Cox testified that she then went inside her sister’s apartment. While inside, Cox overheard her sister and Hargrove arguing. Cox further testified that Hargove called Duvall offensive names and that she heard her sister say that Hargrove was hitting Shinette. Cox went back outside and saw Hargrove on top of Shinette and beating him, possibly with a brick. Cox further testified that she pulled Hargrove off of Shinette, and Hargrove walked away toward a building on the corner of the street. Cox and Duvall testified that Shinette attempted to follow Hargrove. Cox raised her arm to stop him, but realized that he had a handgun. Cox saw Shinette pull the trigger and heard the handgun click four times. Duvall testified that as she arrived at her apartment she saw Shinette at a nearby payphone. Duvall went over to talk to him. She then noticed her sister talking to Hargrove, who appeared to be intoxicated, on her neighbor’s porch. Hargrove became belligerent and called Duvall offensive names. Duvall slapped Hargrove, and he continued his abusive language. Shinette then approached Hargrove and they argued for a few minutes before Shinette hit Hargrove and a physical altercation ensued. Duvall further testified that, although she did not see Hargrove hit Shinette with a brick, she noticed that a brick was missing from the flower bed border. She also stated that she saw Hargrove on top of Shinette and heard Shinette say that Hargrove hit him with a brick. Duvall testified that she saw blood on Shinette’s head and that she and Cox attempted to stop the fight, but she then saw Shinette holding a handgun. She further testified that she saw Shinette pointing the handgun “for like a second,” but did not hear any clicks or see him pull the trigger. Duvall testified that she “vaguely” remembered Shinette requesting his handgun. In her statement to police, however, Duvall admitted that Shinette requested his handgun during the altercation. Duvall told the police that she saw the handgun lying in the dirt, and she picked up the handgun and handed it to Shinette. During her testimony Duvall stated that she did not possess a handgun and did not have a handgun in her home. Officer Mitchell, of the Galveston Police Department, testified that he was on patrol when he saw Hargrove running around a corner shouting: “He has got a gun.” Hargrove told Mitchell that he had been in a fight with Shinette. Mitchell, along with two other police officers, questioned Cox and Duvall. Upon request, Duvall gave the officers consent to search her apartment. The police officers found Shinette hiding in a closet and found a handgun under a sofa cushion. Mitchell requested that an identification officer respond to the scene. Officer Smart arrived at the scene and processed the weapon. He testified that the handgun had two bullets in the cylinder. Smart stated that a dimple was on the primer of one of the shells in the revolver. He further testified that it was impossible to tell when the bullet had become indented, but that it could have resulted if the handgun had misfired. Discussion In this appeal, Shinette contends that (1) the evidence is factually insufficient to disprove his necessity defense; (2) the trial court abused its discretion in admitting testimony regarding his prior felony conviction; and (3) the trial court erred in failing to provide the jury with the definition of “beyond a reasonable doubt.” Factual Sufficiency of the Evidence to Disprove Necessity In his first issue, Shinette contends that the evidence is factually insufficient to support his conviction for the unlawful possession of a firearm by a felon. “A person who has been convicted of a felony commits an offense if he possesses a firearm . . . at any location other than the premises at which he lives.” Tex. Pen. Code Ann. § 46.04(a)(2) (Vernon 2003). Shinette concedes that he possessed a handgun at a location other than his home, but he contends that his conduct was immediately necessary to protect himself from Hargrove. See Tex. Pen. Code Ann. § 9.22 (Vernon 2003). Necessity is classified as a “defense” to prosecution. See Tex. Pen. Code Ann. §§ 2.03, 9.02, 9.22 (Vernon 2003). After a defendant produces some evidence that supports a defense, the State then bears the burden of persuasion to disprove the defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). “The burden of persuasion is not one that requires the production of evidence, rather it requires only that the State prove its case beyond a reasonable doubt.” Id.; see also Cleveland v. State, No. 01-03-01040-CR, 2005 WL 826943, at *3 (Tex. App.—Houston [1st. Dist.] April 7, 2005, pet. filed) (en banc). A guilty verdict constitutes an implicit finding by the fact-finder against the defensive theory of necessity. Zuliani, 97 S.W.3d at 594. The Texas Penal Code provides that the conduct is justified if: (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear. Tex. Pen. Code Ann. § 9.22(1)-(3). In a factual sufficiency review, we view all of the evidence in a neutral light and set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004). In conducting a factual sufficiency review, we discuss the evidence that Shinette contends most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Unless the available record clearly reveals that a different result is appropriate, we defer to the jury’s determination concerning the weight to place upon conflicting testimony, because resolution of facts often turns on evaluation of credibility and demeanor. See Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000). It is undisputed that Hargrove and Shinette engaged in an argument that included a physical encounter. Both Cox and Duvall testified that they observed Hargrove hitting Shinette. Cox testified that she “remembered hearing something about a brick,” and vaguely remembered seeing a brick, but she could not be certain that Hargrove had hit Shinette with a brick. After the fight, Shinette’s head was bleeding profusely. Cox testified that, after Cox and Duvall broke up the fight, Hargrove began walking away. Shinette attempted to follow Hargrove while possessing his handgun. Cox heard the handgun click four times, but nothing fired. Duvall testified that Shinette requested his handgun, she saw it in the dirt, and she handed it to him. Both Cox and Duvall testified that Hargrove was beating Shinette, but that they interrupted the fight and Hargrove began to walk away; at that point, Shinette continued to brandish his weapon. At trial, Shinette invoked his right against self-incrimination and did not testify. Based upon this testimony, the jury was free to believe that Shinette brandished his weapon—and attempted to fire it—even after the imminency of the harm had passed. See Tex. Dep’t of Pub. Safety v. Moore, No. 01-02-01147-CV, 2004 WL 1064781, at *3 (Tex. App.—Houston [1st Dist.] May 13, 2004, no pet.). Upon viewing the evidence in a neutral light for a factual sufficiency analysis, we conclude that the jury was justified in finding Shinette guilty beyond a reasonable doubt of the unlawful possession of a firearm, thereby finding against him on his claim of necessity. See Escamilla, 143 S.W.3d at 817. The evidence supporting the verdict is not so weak that the jury’s finding Shinette guilty of the unlawful possession of a firearm by a felon is clearly wrong and manifestly unjust; nor is Shinette’s evidence of necessity so strong that the State’s burden to prove the charged offense beyond a reasonable doubt could not have been met. See id. Prior Conviction Testimony In his second issue, Shinette claims that the trial court erred in allowing testimony of his prior felony conviction for attempted murder. The State responds that Shinette failed to object at trial, thereby waiving his issue for appeal. We agree. To preserve a complaint for appellate review, a defendant must make a timely, specific objection to the trial court. Tex. R. App. P. 33.1(a). The complaining party must object at the earliest possible opportunity and obtain an adverse ruling. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (citing Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995)). Arguments on appeal must comport with the objection at trial, or the error is waived. See Wilson, 71 S.W.3d at 349. This is true even if the complaint is based upon constitutional grounds. Espinosa v. State, 29 S.W.3d 257, 260 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). An objection will be sufficient to preserve error for appellate review if it communicates to the trial judge the objecting party’s requested relief and the basis for the relief in a manner clear enough for the judge to understand the objection and request, and at a time when the trial court can act upon the request. Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). Here, Shinette did not object as the State read into evidence the indictment containing the prior conviction, nor did Shinette object when the State mentioned the conviction in its opening statement or in its final argument. We therefore hold that Shinette waived his complaint as to the references regarding his prior conviction. Reasonable Doubt Definition In his final issue, Shinette contends that the trial court should have given the jury an explanation or definition of “reasonable doubt.” Shinette concedes that he neither requested the jury definition, nor objected to its omission at trial, because it would have been futile under the Court of Criminal Appeal’s decision in Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). Nonetheless, Shinette maintains that the Court of Criminal Appeals wrongly decided Paulson, and requests that this court “take this opportunity to set up the issue for reconsideration by the Court of Criminal Appeals.” The State responds that, under Paulson, the trial court is not required to give a definition of “beyond a reasonable doubt” in the jury charge. Further, neither the State nor Shinette requested or agreed to such a change, thus the trial court did not err in abstaining from including such a definition or explanation. We agree. In Paulson, the Court of Criminal Appeals held that trial courts are not required to instruct juries on the definition of “beyond a reasonable doubt.” 28 S.W.3d at 573. The court went further and stated that “the better practice is to give no definition of reasonable doubt at all to the jury.” Id. The Court of Criminal Appeals stated, however, that if both the State and the defense agree to give such an instruction to the jury, it would not constitute reversible error for the trial court to acquiesce to that agreement. Id. We decline Shinette’s request. As an intermediate appellate court, we are duty bound to follow the pronouncements of the Court of Criminal Appeals on matters pertaining to criminal law. Flores v. State, 883 S.W.2d 383, 385 (Tex. App.—Amarillo 1994, pet. ref’d); see also Southwick v. State, 701 S.W.2d 927, 929 (Tex. App.—Houston [1st Dist.] 1985, no pet.). After the law is declared by our State’s high court, we are not at liberty to impose a different declaration of the law. See Southwick, 701 S.W.2d at 927. We therefore refuse to hold that the trial court erred in failing to include a definition of “beyond a reasonable doubt” in the jury charge. Conclusion We hold that (1) the evidence is factually sufficient to disprove Shinette’s necessity defense; (2) Shinette did not properly preserve his evidentiary issue for appeal; and (3) we are duty bound to follow the precedent of the Court of Criminal Appeals, and therefore Shinette was not entitled to a definition of “beyond a reasonable doubt” in the jury charge. We therefore affirm the judgment of the trial court. Jane Bland Justice Panel consists of Justices Nuchia, Keyes, and Bland. Do not publish. Tex. R. App. P. 47.2(b).