Case Information
*1 ORIGINAL
No. IN THE Court of Criminal Appeals FOR THE STATE OF TEXAS
JASON RAY BOUCHARD, APPERLANT V.S.
THE STATE OF TEXAS
RECEIVED IN COURT OF CRIMINAL APPEALS
FEB 20, 2015
Abel Acosta, Clerk
PETITION FOR DISCRETIONARY REUSEW OF THE 14th Court of Appeals JUDUNEMENT $14-13-00350-CR AFFIRMING CONVILTION IN CALSE $1374.815 FROM THE 178th District Court HARAIS COUNTS, TEXAS
JASON RAY BOUCHARD FOR SE TDCSTD 01852.819 TELFORD UNST 3899 STATE HUY 98 NEW DOSTON, TX 75570
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Table of Contents
Cover Table of Contents - Index of Authorities - Statement on Drin Argument - 1 Statement of Case - 1 Statement of Procedural History - 1 Grounds for Review - 1 A) The Court of Appens Decrision conflicts with other Court of Appens Decisions on the same issue. TEX R. App. P. 66.36 Questions for Review - 2 Argument - 2 PRAYER - 3 Certificate of Service - 3 APPENDIX - 4
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Index of Authorities
#I BufkIn V. State 207 SU3d 779,782 Tex. crism. Apr. 2006 #2 HameL V. State 916 SUd2d 491,493 TEX. CRIM. APp. 1996 #3 Hayes V. State 728 SUd2d 804,807 TEX. CRIM. APp. 1987 #4 Mata V. State 141 SUd3d 858 TEX. CRIM. APp. 2004
STATUTES
#I Defense of a 3RD Person TEX. PenaL Code Pane! #2 Necessity TEX. PenaL Code Pane!
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STATEMENT ON ORAL ARGUMENT ORAL ARGUMENT WOULD 9E USEFUL TO RESOLVE "WHAT EXALTTY IS SUPPORTING EUIDENLE AND THE MINIMUM THRESHOLD THAT WARRANTS PROPERLY REQUESTED DEFENSIVE JURY INSTRUCTIONS?".
STATEMENT OF CASE APPELLANT; JASON RAY BOUCHARD; PRO SE WAS CONVINUED OF CAPSTAL MURDER AND SENTENCED TO LIFE WITHOUT PROOLE.THE APPELLANT PROPERLY REQUESTED DEFENSIVE JURY INSTRUCTIONS DURING THE TRIAL. TEXAS PENAL CODE 59.33 DEFENSE OF A 3RD PERSON AND 59.22 NEEESSTTY WERE INSTRICTMALLY EXCLUDED FROM THE JURY INSTRUCTIONS.
STATEMENT OF PROCEDURAL HISTORY OF THE CASE ON Dec 16, 2014 the 14th COURT OF APPEALS AFFAMED APPLLANTS JUDGEMENT HOLDING THAT THE TRIAL COURT DID NOT ERR IN FRELING TO INSTRUCT THE JURY ON PROPERLY REQUESTED DEFENSIVE ISSUES BECAUSE APPELLANT DID NOT MEET HES BURDEN TO ESTABLISH THAT HE WAS ENTITLED TO THE INSTRUCTIONS. EXTENSION FILLED VIA PRAIL ON 10 JAN. 2015. COROUNDS FOR REVIEN A) THE COURT OF APPEALS DECISION CONFLIETS WITH OTHER COURT OF APPEALS DECISIONS ON THE SAME ISSUES. TEX. R. APP. P. 66.3(a)
*5 Quetions for REVIEN I. Is there a SCIntila OF EvIDENLE IN: A) APELLANT ADMITTED ACTS, B) From Alu 2008-DEC 2009 APEELANTS 4 YEAR OLD DAWONTER, KASTLIN; CLATMED MULTIPLE RAPINDS, C) APELLANT STATED ACTIONS WERE TO PROTELT KASTLYN DUE TO HER AGE MATURITY LEVEL, CONSIDERING HER PAINT OF VIEW AND CIR LUMSTANCES AS THE VICTIM OF RAPE, THAT SUPPORTED THE PROPERLY REQUESTED YET DENIED DEFEN SIVE JURY INSTRUCTIONS? 2. DID COURT ERR IN MAKING CONCLUSION/ECCLUSION OF "WHY" APPELLANT DID THE ADMITTED ACTS? 3. HAVE THE COURTS DECIDED THE RELATIVE CREATBILITY OF EVIDENCES SUBSTITUTIONS THEIR JUDGEMENT ON THE WEIGHT OF THE EVIDENCE FOR THAT OF THE JURY?
Aframment in Supports of REASON for REVIEN FOR A DISTRICT COURT TO JUSTLY DENY A PROPERLY REQUESTED JURY CHARGE ON ANY DEFENSE, THERE MUST BE ABSOLUTELY ZERO EVIDENCE IN SUPPORT OF DEFENSE. "AN A.cussed IS ENTITLED TO AN INSTRUCTION ON EVERY DEFENSTVE IS SUE RATSED BY THE EVIDENCE."HAYES V. STATE 728 SW24 804, 807. THE APEELANT ADMITTED ACTS OF THE INDICTMENT WHITE ON THE STAND. "A DEFENDANTS TESTIMONY ALONE IS SUFFICIENT TO RATSE A DEFENSTVE IS SUE REQUITING AN INSTRUCTION IN THE JURY CHARGE."ID. BY DEVYING THE APEELANTS PROPERLY REQUESTED DEFENSTVE JURY INSTRUCTIOUS AFTER HE ADMITTED ACTS, THE COURTS ARE CONCLUDING/EXCLUDING "WHY" APPELLANT A. TED." THIS (JURY INSTRUCTIONS RIGHT) IS TRUE REGARDLESS OF WHETHER SUCH EVIDENCE IS STRONG, WEAK, UNIM PEACHED OR CONTRADICIED, AND RELAMBLESS OF WHAT THE TRIAL COURT MAY THINK ABOUT THE CREDIBILITY OF THIS EVIDENCE." HANELV. STATE 916 SW24 491,493
APPELLANT ALSO TESTIFIED THAT FROM ALU ZOSE-DEC 2009 HES 4 YEARS UND DAWONTER MADE MULTIPLE CLASSIS OF BEING RAPED AND THAT HES ACTS WERE IN HER DEFENSE, THE COURTS IANOCE HER MATURITY LEVEL AND APEELANTS PERCEVED PAINT OF VIEW OF HIS YOUNG CHILD WHICH SUPPERS BOTH "REASONABLE DELLEE" AND "IMMEDIACT". THIS IS IN ERROR "INDEED, THE COURT MUST VIEW THE EVIDENCE IN THE LIGHT MOST FAVORABLE TO THE DEFENDANTS SUBM2SSION." BUFKINV, STATE 207 SW34 779,782; AND "A PERSON IS JUSTIFIED IN YOUNG DENDLY FORCE TO PROTECT A 3RD PERSON WHEN THAT 3RD PERSON IS THERATENED BY CIRCUMSTANCES THAT WOULD ENTITLE THE ACTOR TO PROTELT HENSELF," MATAV. STATE 141 SW34 858
PACLE 2
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The MTACUARI of APPELALS offerS constRADtTORt EVSDENEE to JUSTIEY the DENIAL OF REGUESTED JURY INSTRUCTTANS AND THAT SHEWS THEP ARE WESUNGNA THE EUYDENCE AND DENYING THE JURY THE OPPORTUNITY TO DO SO PROFERLY, AND A UAIH." THIS IS RECOARDLESS OF WHETHER SUCH EUSDENCE IS STRONG, WEAR, UNEMPERALIED OR CONTRADIUTED AND REGARDLESS OF WART TRIAL COURT MAY THINK ABOUT THE CREDIBILITY OF THIS EUSDENCE." HAMEL V. STATE 916 SUNZd 491.
DENYING APPLLLAMS REGULITS FOR DECENSE OF A 3RD PERSON AND NECESSITY WAS IN ERROR AND HARMFUL TO APPELLANT. A DEFENDANT IS ENTELLED TO HAVE A JURY THAT WELL CONSIDER ALL RAISED DEFENSES. TELL COURT AND 14THC COURT OF APPEALS JUDGEMENTS MUST BE REVERSED AND THE CAUSE MUST SE REMANDED TO THE TRIAL COURT FOR A NEW TRIAL.
PRAVER
APPELLANT PRAYS THIS HONDRASE COURT TO CONSEDER ERROR RATSED WEREIN, TO REVERSE APPELLAMTS CONVERTION FOR THE OFFENSE OF CASTAL MUARER AND ORDER A NEW TRIAL AS THE LAW AND JUSTEE DEMANDS.
CERTIFLLATE OF SERVICE I DO MEREBY CERTIEY THAT ON 2015, A TRUE AND CORREET COPY OF THIS PESTETION FOR DISLRETIONAR? REVIEW WAS FERWARDED BY MAJL TO PM. ANDERSON, 1201 FRANELSIN, SUTE (w/o), HOLSTON, TY 77002.
PAGE 3
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APPENDIX
I HAD ONLY TWO ACTUAL COREES OF THE 14TH COURT OF APPEALS "MEMORANOUM ORINSON".
ONE WAS SUBMITTED 10 JAN. 2015 WITH THE MORION FOR 60-DAY EXTENSION, THE OTHER ONE WITH THESE ELEVEN COREES OFTHES FOR.
LIMTED RESOURCES DICtATE THIS UNFORTUNATE CIRCUMSTANCE AND INCONVENENCE.
I PART THIS DOES NOT DISOLALLIFF MY PDR FOR PROPER CONSIDERATION.
RESPETFULLY,
JASON RAY DOLLHARD PRO SE TDCTM O1852819 TELFORD UNIT 3899 STATE HUY 98 New Boston, TX 75570 PANE 4
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Affirmed and Memorandum Opinion filed December 16, 2014.
INE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court Harris County, Texas Trial Court Cause No. 1374815
MEMORANDUM OPINION
Jason Bouchard appeals his conviction for the capital murder of Terri Sanvicente. In two issues, which we consolidate into one, appellant challenges the trial court's denial of his requests for jury instructions on the defenses of necessity and on defense of a third person. We hold that the trial court did not err in failing to instruct the jury on those defensive issues because appellant did not meet his
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burden to establish that he was entitled to the instructions. We therefore affirm the trial court's judgment.
BACKGROUND
Appellant and the victim, Terri Sanvicente, had been married. The couple had three children together. The relationship ended in 2007, and during the subsequent custody dispute, their daughter alleged that appellant had sexually abused her.
At trial, appellant testified that he killed Sanvicente because she was the reason their daughter alleged she had been abused. Appellant felt that Sanvicente forced their daughter to make those accusations. Additionally, appellant stated that he was about 90 to certain that Sanvicente had abused their daughter. He also alleged it was possible that Sanvicente allowed someone else to do it. Appellant conceded, however, that he did not believe Sanvicente was molesting their daughter at the time he committed the offense. He testified as follows: "I felt that Terri Sanvicente was a constant threat. Did I believe she was molesting her right then and there on the spot when I went there? No."
Appellant visited both Target and Walmart to select a murder weapon. Appellant decided to purchase a crowbar and a gas can. He traveled toward Sanvicente's home, poured gas on a window in the back of the house, and lit a fire. Appellant then ran to the front of the house, beat on the front door, rang the doorbell three times, and said "Fire, fire, get out, get out." Appellant testified that he then used the crowbar to break the windows of his children's room and alerted them of the fire. Sanvicente came to the front door and opened it. Appellant testified that he struck Sanvicente with the crowbar between fifteen and twenty times, including three two-handed blows to the head as she attempted to crawl away, before relenting because he was fairly certain she was dead.
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During the charge conference, appellant objected to the court's proposed charge and requested an instruction on defense of a third person and an instruction on the defense of necessity. The court denied both requests on the grounds that there was no evidence presented to the jury that any threat was imminent. Appellant was convicted of capital murder and sentenced to life imprisonment without parole. This appeal followed.
ANALYSIS
I. The trial court correctly denied appellant's requests for jury instructions on the defenses of necessity and defense of a third person.
Appellant contends that the trial court erred in denying his request for the inclusion of a necessity defense instruction and his request for an instruction on defense of a third person in the jury charge. We hold that the evidence presented by appellant did not entitle him to the inclusion of either instruction.
A. Standard of review
When reviewing claims of jury charge error, we use a two-step process. First, we determine whether error actually exists in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Then, if error exists, we determine whether it was harmful using the framework outlined in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). See Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009).
We review for abuse of discretion a trial court's decision not to include a defensive issue in the jury charge. Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000). An accused is entitled to an instruction on every defensive issue raised by the evidence. Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987). This is true regardless of whether such evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think
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about the credibility of this evidence. Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). Indeed, the court must view the evidence in the light most favorable to the defendant's requested submission. Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006). A defendant's testimony alone is sufficient to raise a defensive issue requiring an instruction in the jury charge. Hayes, 728 S.W.2d at 807 .
B. Necessity
Section 9.02 of the Texas Penal Code provides that it is a defense to prosecution if the conduct in question is justified under this chapter. Tex. Penal Code Ann. § 9.02 (West 2011). Under the defense of necessity, conduct is justified if (1) the actor reasonably believed the conduct was immediately necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly outweighed, 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. Penal Code § 9.22 (West 2011). A "reasonable belief" is one that would be held by "an ordinary and prudent man in the same circumstances as the actor." Tex. Penal Code Ann. § 1.07(a)(42) (West 2011). "Imminent' means something that is impending, not pending; something that is on the point of happening, not about to happen." Schier v. State, 60 S.W.3d 340, 343 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd). "An 'imminent harm' occurs when there is an emergency situation and it is 'immediately necessary' to avoid that harm, when a split-second decision is required without time to consider the law." Id. A defendant's belief that conduct was immediately necessary to avoid imminent harm may be deemed unreasonable as a matter of law if undisputed facts demonstrate a complete absence of evidence of immediate
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necessity or imminẹnt harm. Arnwine v. State, 20 S.W.3d 155, 159 (Tex. App.Texarkana 2000, no pet).
C. Defense of third person
In defending a third person, the use of deadly force against another is justified if the actor would be justified in using deadly force to protect himself against the unlawful deadly force he reasonably believes to be threatening the third person; and the actor reasonably believes that his intervention is immediately necessary to protect the third person. Tex. Penal Code Ann. § 9.33 (West 2011); see also id. §§ 9.31, 9.32. D. Because there is no evidence of a reasonable belief that action was immediately necessary, appellant was not entitled to either instruction.
Given the overlap between the two defenses raised by appellant, we address them together. Both defenses share the common elements of "reasonable belief" and "immediate necessity." In this case, there is no evidence in the record that appellant's conduct was immediately necessary to avoid imminent harm. Moreover, as detailed above, appellant's testimony reveals that he did not believe his daughter was being sexually abused at the time he committed the offense. Accordingly, appellant was not entitled to either defensive instruction. Because we hold that there was no evidence to suggest that appellant reasonably believed his conduct was immediately necessary, we need not address the other elements of the defenses. We overrule appellant's two issues.
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CONCLUSION
Having overruled appellant's issues, we affirm the trial court's judgment. /s/ J. Brett Busby Justice
Panel consists of Justices Boyce, Busby, and Wise. Do Not Publish — Tex. R. App. P. 47.2(b).