Kenneth Ramone Dearborn, II v. State
420 S.W.3d 366
| Tex. App. | 2014Background
- Appellant Kenneth Dearborn was convicted in a bench trial of aggravated assault (shot complainant through front door) and unlawful possession of a firearm by a felon; sentenced to 25 and 10 years respectively.
- Facts: complainant (Richard Mitchell) returned unexpectedly to his house where his wife, Danielle Jones‑Mitchell, had been cohabiting with appellant; complainant and wife drove back from Louisiana; upon arrival Jones‑Mitchell began unlocking the door and appellant fired a shotgun through the door, wounding complainant.
- Appellant gave a videotaped statement saying he was scared, moved a shotgun near the door, and that the weapon discharged accidentally after he heard tapping/keys; he did not testify at trial; wife did not testify.
- State’s firearm expert testified the shotgun required a direct trigger pull (5.5–6 lbs) and was unlikely to fire accidentally; trial court as finder of fact rejected appellant’s defensive theories.
- Appellant argued on appeal that justification (self‑defense/defense of others/defense of habitation) and necessity were fairly raised and that the State failed to disprove them; he also challenged sufficiency of the evidence.
- Court held the evidence did not fairly raise justification for aggravated kidnapping, burglary, or defense against deadly force; evidence was sufficient to support convictions and rejection of defenses; affirmed.
Issues
| Issue | Appellant's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the trial court’s failure to apply/consider justification entitles appellant to reversal/new trial | Justification (self‑defense, defense of others/habitation, prevention of aggravated kidnapping/burglary) was fairly raised and court’s failure to apply it caused egregious harm | Evidence did not fairly raise justification; trial court (bench) is presumed to have applied law correctly; no reversible error | Held against Dearborn — justification not fairly raised; no egregious harm; no reversal |
| Sufficiency of evidence for aggravated assault | Appellant says justification/accident/necessity negate criminal culpability so State didn’t disprove beyond reasonable doubt | State points to undisputed shooting, expert testimony undermining accidental discharge, and factfinder’s credibility findings | Held: Evidence sufficient to prove aggravated assault and reject justification/accident as credited by factfinder |
| Sufficiency of evidence for unlawful possession by a felon | Appellant contends justification/necessity apply to possession charge (and he raised necessity) | State notes undisputed prior felony, possession within five years of release, and factfinder could reject necessity/justification | Held: Evidence sufficient for unlawful possession; necessity and justification not established |
| Whether trial court impermissibly relied on duty to retreat when rejecting defense | Appellant points to court’s punishment‑phase remark about leaving instead of arming himself | State notes remark occurred at punishment phase where broader matters are considered and presumption of regularity; factfinder could consider failure to leave but did not indicate duty to retreat affected guilt finding | Held: No reversible error; appellant failed to overcome presumption of regularity |
Key Cases Cited
- Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (standard for reviewing sufficiency of evidence)
- Saxton v. State, 804 S.W.2d 910 (Tex. Crim. App. 1991) (trier of fact may reject self‑defense; appellate review of sufficiency considering defensive evidence)
- Vasquez v. State, 830 S.W.2d 948 (Tex. Crim. App. 1992) (discussing applicability of Chapter 9 defenses to possession offenses)
- Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003) (defendant’s initial burden to produce evidence raising defensive theory)
- Ferrel v. State, 55 S.W.3d 586 (Tex. Crim. App. 2001) (in jury trials, requested justification instruction must be given if fairly raised)
- Ex Parte Wilson, 716 S.W.2d 953 (Tex. Crim. App. 1986) (presumption of regularity of judgment and proceedings)
- Denman v. State, 193 S.W.3d 129 (Tex. App.—Houston [1st Dist.] 2006) (defendant’s statement alone does not conclusively prove self‑defense)