Wyvon Devron McDonald v. State of Texas

NO. 12-01-00034-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS WYVON DEVRON MCDONALD, § APPEAL FROM THE 173RD APPELLANT V. § JUDICIAL DISTRICT COURT OF THE STATE OF TEXAS, APPELLEE § HENDERSON COUNTY, TEXAS PER CURIAM Wyvon Devron McDonald ("Appellant") was convicted of manslaughter and sentenced to imprisonment for twenty years. Appellant raises two issues on appeal. We affirm. Background Appellant and her boyfriend, Leroy Sims ("Sims"), lived together and had a young daughter. On July 11, 2000, they had guests at their house. Throughout the day, Appellant and Sims argued about their young daughter, who was continually wandering out of the house and into the backyard. During the argument, Appellant's cousin took their daughter away from the house. Appellant testified that Sims brandished a handgun he had retrieved from the bedroom and struck her with it. Appellant testified that she heard the gun click behind her right ear, but could not say whether Sims had pulled the trigger. When Sims put the gun down on the counter, Appellant took the gun and ran to the back door where she fired it twice, purportedly in an attempt to unload it. Both shots hit a nearby mobile home. Then, Appellant ran through the house, out the front door toward the street, and stopped near a tree in the front yard. Meanwhile, Sims walked to the front porch and dialed 9-1-1 on the portable phone. Appellant testified that she was trying to unload the gun when it fired and fatally wounded Sims. The 9-1-1 dispatcher, Deborah Ramsey, testified regarding her telephone conversation with Sims, a tape recording of which was admitted into evidence. As the State detailed in its brief, and as Appellant confirmed in her testimony, following the fatal shooting of Sims, Appellant could be heard on the 9-1-1 tape recording repeatedly saying, "Who's the bitch now?" Appellant testified that she attempted to revive Sims, but he later died from the gunshot wound. Appellant was indicted for murder and tried by a jury in January 2001. Following the presentation of the State's evidence, Appellant made a motion for a directed verdict, which was denied. The State requested that manslaughter be submitted in the jury charge as a lesser-included offense, and Appellant did not object. Appellant requested that a self-defense instruction be submitted in the jury charge, but her request was overruled. The jury found Appellant guilty of manslaughter and sentenced her to imprisonment for twenty years. Evidentiary Sufficiency In her first issue, Appellant contends that the trial court improperly denied her motion for a directed verdict because the evidence was insufficient to prove her guilty of murder beyond a reasonable doubt. Specifically, Appellant argues that the evidence failed to establish that she either intentionally or knowingly caused Sims's death. Appellant also challenges the factual sufficiency of the evidence on these same grounds. A challenge to the trial judge's ruling on a motion for a directed verdict is, in actuality, a challenge to the sufficiency of the evidence to support the conviction. See Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1991) (emphasis added), overruled on other grounds, Geesa v. State, 820 S.W.2d 154, 160-61 (Tex. Crim. App. 1992). In reviewing the sufficiency of the evidence, we consider all the evidence, both State and defense, in the light most favorable to the verdict. Id. (emphasis added). If the evidence is sufficient to sustain the conviction, then the trial judge did not err in overruling the appellant's motion. Id. (emphasis added). Appellant argues that the evidence was insufficient to support the indicted offense of murder. Specifically, Appellant contends that the evidence was insufficient to support the mens rea component of murder, which is wholly different from the mens rea component of manslaughter, the crime for which Appellant was convicted. Compare Tex. Pen. Code Ann. § 19.02(b) (Vernon 1994), with Tex. Pen. Code Ann. § 19.04(a) (Vernon 1994). As a legal sufficiency challenge must be based on a contention that the evidence is insufficient to sustain the conviction, see, e.g., Madden, 799 S.W.2d at 686 (emphasis added), it follows that an argument that the evidence is insufficient to satisfy the elements of a crime for which Appellant was not convicted is irrelevant. Moreover, we cannot interpret Appellant's sufficiency challenge as relating to her manslaughter conviction. The court of criminal appeals has held that a defendant who does not object to the inclusion of a lesser included offense, such as manslaughter, has accepted the benefit of that instruction and is estopped from complaining on appeal that the evidence failed to establish all the elements of the lesser offense. See State v. Lee, 818 S.W.2d 778, 781 (Tex. Crim. App. 1991), overruled on other grounds, Moore v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998); Bisco v. State, 964 S.W.2d 29, 30 (Tex. App.-Tyler 1997, writ ref'd) (extending the analysis in Lee to a factual sufficiency challenge). Appellant made no objection to the submission of the lesser included offense of manslaughter in the jury charge. Therefore, we hold that Appellant has waived any claim on appeal that the evidence is insufficient to support her conviction for manslaughter. Appellant's first issue is overruled. Self-Defense A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Tex. Pen. Code Ann. § 9.31(a) (Vernon Supp. 2002). A person is justified in using deadly force against another: (1) if he would be justified in using force against the other under section 9.31, (2) if a reasonable person in the actor's situation would not have retreated, and (3) when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. See Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2002). The defendant has the initial burden of producing some evidence to justify submission of a self-defense instruction. See Tidmore v. State, 976 S.W.2d 724, 729 (Tex. App.-Tyler 1998, pet. ref'd). The trial court must give a jury instruction on a defensive theory raised by the evidence regardless of whether such evidence is strong, feeble, impeached, or contradicted, and even if the trial court is of the opinion that the testimony is not entitled to belief. See Castaneda v. State, 28 S.W.3d 216, 224 (Tex. App.-El Paso 2000, pet. ref'd), citing Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997). In order to be entitled to an instruction on the use of deadly force in self defense, the defendant must produce some evidence on each of the three elements of section 9.32. See Henderson v. State, 906 S.W.2d 589, 594-95 (Tex. App.-El Paso 1995, pet. ref'd). If the issue is raised by any party, refusal to submit the requested instruction is an abuse of discretion. See Castaneda, 28 S.W.3d at 224. However, where the evidence fails to raise a defensive issue, the trial court commits no error in refusing such a request. Id. Appellant argues on appeal that her testimony alone was sufficient to support the submission of a charge on self defense to the jury. We disagree. (1) Although Appellant testified that the argument between her and Sims accelerated when he hit her with the handgun, it is undisputed that Appellant took the handgun when Sims set it on the counter. Moreover, Appellant testified that she ran out the front door of the house toward the street and was standing in the front yard while Sims stood on the front porch talking on the telephone. In order to be entitled to a charge instruction on her self-defense claim, the evidence must show that Appellant reasonably believed the deadly force was immediately necessary to protect herself against Sims's use or attempted use of unlawful deadly force. See Tex. Pen. Code Ann. § 9.32(a)(3)(A) (emphasis added). Self defense is authorized where the attack is of a violent character and while the person killed is in the very act of making such unlawful and violent attack and not when he is about to attack or is doing some act preparatory to an attack. See Montes v. State, 291 S.W.2d 733, 735 (Tex. Crim. App. 1956) (emphasis added). There is no evidence in the record before us to support the proposition that when Appellant shot Sims, he was in the very act of making a violent attack, nor that he was preparing to violently attack Appellant. Rather, Appellant's testimony, the testimony of other witnesses and other evidence of record demonstrate that Sims was standing on the porch away from Appellant and was using the telephone to call 9-1-1. We further find no evidence in the record supporting that a reasonable person in Appellant's situation would not have retreated. See Tex. Pen. Code Ann. § 9.32(a)(2). The record reflects that Appellant ran toward the street and was standing in the front yard when she fired the shot that killed Sims. Further, Appellant testified that no one at the house attempted to restrain or subdue her when she was in the front yard with the handgun. Thus, we conclude that the evidence in this case fails to raise a defensive issue as Appellant failed to produce some evidence on each of the three elements set forth in section 9.32 of the Penal Code. See Henderson, 906 S.W.2d at 594-95. Therefore, we hold that the trial court did not abuse its discretion in refusing to submit an instruction on self defense in the jury charge. See Castaneda, 28 S.W.3d at 224. Appellant's second issue is overruled. Accordingly, the judgment of the trial court is affirmed. Opinion delivered January 23, 2002. Panel consisted of Davis, C.J., Worthen, J., and Griffith, J. (DO NOT PUBLISH) 1. In our analysis of this issue, we considered all sources of relevant evidence of record, not just Appellant's testimony.