Lead Opinion
OPINION
Appellant, Ashton Joel Carmen, appeals from a judgment convicting him for the murder of his father, Reginald Carmen. See Tex. Penal Code Ann. § 19.02 (Vernon 2003). Appellant pleaded not guilty, was found guilty by the jury, and assessed 50 years in prison by the jury. In his sole issue, appellant contends the trial court erred by denying his request for a jury instruction on self-defense. We conclude the trial court committed harmful error by refusing to instruct the jury on the law of deadly force in defense of person. See Tex. Penal Code Ann. § 9.32 (Vernon Supp.2008). We reverse and remand for a new trial.
Background
Appellant was born with cocaine in his system, the child of a mother addicted to the substance and of a father, Reginald Carmen, who was absent for the first years of appellant’s life. Carmen began living with appellant when appellant was in the first or second grade. Within a few months of moving in with appellant, Carmen struck appellant with a belt over 70
According to appellant, CPS never intervened again, despite two later referrals for excessive force. Upon reunification of appellant and Carmen, the physical assaults resumed, with Carmen often striking the lower part of appellant’s shoulders, his back, the lower part of his thighs, and using a fist tо strike his face, back, chest, stomach, and arm. Appellant was struck by Carmen almost every day in the form of a “whooping” or a “beating.” For a whooping, Carmen would tell appellant to assume the position, which meant that appellant was to lean over the bed or couch to receive “licks.” During the beatings, Carmen would slap and punch appellant, and sometimes wrap a belt around the neck of appellant. Carmen also deprived appellant of food by allowing appellant only to have water for several days at a time. Appellant told his mother about the repeated assaults and his thoughts of suicide. Appellant said that on a couple of occasions Carmen threatened to kill him. Appellant described a conversation with Carmen that occurred on one occasion after appellant broke into Carmen’s bedroom. Carmen told appellant that if he took his property, he would treat him like a thief and kill him.
According to appellant, on the day Carmen died, appellant broke the window to Carmen’s bedroom to search for money because he was planning to run away. During the search of Carmen’s bedroom, appellant found a loaded gun. Appellant said he “most definitely” knew that Carmen was going to kill him for breaking into the bedroom. When Carmen arrived home with groceries, Carmen at first told appellant to assume the position but then said instead that they were gоing to “up the ante tonight.” Appellant said he understood Carmen’s threat to mean that “was going to be worse than just the beatings he had been giving me, as far as ... punching me or ... slapping me or hitting me with ... other objects. He made it seem like it was going to be worse.” In response to the threat by Carmen, appellant ran down the stairs to Carmen’s room and got the gun. When the appellant approached Carmen, Carmen threw a milk jug and a large soda bottle at appellant, striking him on the shoulder. At that point, Carmen came toward appellant. Appellant pointed the gun at Carmen, but Carmen “didn’t stop for a second.” Appellant testified that because Carmen “kept on coming,” he shot the gun. Appellant explained that the did not think he could run from Carmen “seeing as the distance he was from me because if I would have ran out the front door, he would have ... caught me before I would have gotten that far.” Appellant explained that he “was terrified,” fearing that “something bad was going to happen” because “[Carmen] had already warned [appellant] about what actions [Carmen] would take if [appellant] did something like that.”
Appellant shot the gun five times, with three rounds entering the Carmen’s back. Appellant never called for an ambulance or police, but remained at the house for about two hours, until he left in Carmen’s car.
At trial, appellant admitted that he previously read the owner’s manual to Carmen’s gun to learn how to shoot it and рreviously practiced shooting the gun. Also at trial, the State presented evidence from one of appellant’s friends, Justin Golden, who testified that appellant showed him a gun seven months before the shooting, and told him that he planned to
Preservation of Error
The State contends error is not preserved because appellant “failed to specify the particular self-defense instruction he desired.” We conclude that error was preserved because, under the circumstances before the court, appellant’s objection to the omission of “self-defense” from the charge wаs specific enough for the trial court to be placed on notice that he was requesting the charge of deadly force in defense of one’s person. The self-defense request could only have meant, under the circumstances of this case, a request for an instruction concerning self-defense with use of a deadly weapon or deadly force, as it is commonly referred to, or deadly force in defense of one’s person, as it is properly called in the Texas Penal Code.
A defendant preserves error if the requested charge is specific enough to put the trial court on notice of the omission or error in the charge, and the requested charge need not be “in perfect form” but оnly sufficient enough to bring the request to the trial court’s attention. Chapman v. State,
Here, a review of the record shows that the trial court must have actually understood that appellant was requesting a charge of deadly force in defense of one’s person, for two reasons. See id. First, because the Court of Criminal Appeals uses the term “self-defense” when it is referring to the term “deadly force in defense of one’s person,” attorneys and judges in the State also interchange the terms. See, e.g., Ferrel v. State,
Like the Court of Criminal Appeals, we have also used the terms interchangeably. See Guilbeau v. State,
Second, an examination of the record shows that the trial court must have been aware that appellant was referring to the defense of deadly force in defense of one’s self when he requested the charge of self-defense. In deciding whether the trial court was aware of the requested instruction, it is appropriate to examine the context of the evidence at the trial and the issues before the trial court. See Rogers v. State,
It is not at all evident from the record that the trial judge understood that appellant really wanted an instruction on voluntary conduct. In fact, the record suggests that the trial judge reasonably assumed that appellant wanted an instruction on the lack of the required intent. Immediately before the State began its cross examination of appellant, the trial judge ruled that the State could offer extraneous offense evidence “to rebut the defensive theory of self-defense and to rebut the defensive theory of accident” (i.e., lack of intent to harm). Moreover, the evidence at trial was not such that it necessarily would have put the trial judge on notice that appellant wanted an instruction on voluntary conduct. A statement that a defendant did not intend to pull the trigger “cannot be plucked out of the record and examined in a vacuum.” If appellant wanted jury instructions on what are generallyinconsistent defensive theories, then it was incumbent upon him to tell the trial court exactly he wanted.
Id. (Emphasis added). Therefore, in deciding whether the trial court understood the request for an instruction, we must examine the record for statements by the trial court that reflect what its understanding was, the general theme of the defense evidence, thе various defensive theories presented at the trial, and anything else that may shed light on whether the trial court understood the objection. See id. For example, a request for a “self-defense” instruction may not necessarily alert the trial court the defendant is requesting an instruction on deadly force in defense of one’s self when there is a dispute whether the weapon is a deadly weapon, or when there are lesser included offenses to which self-defense could apply, or when self-defense is inconsistent with another defensive theory that was presented at the trial. See id.; Moun v. State, No. 01-06-00790-CR,
Here, an examination of the record shows that the trial court must have known that appellant was requesting the defensive charge of deadly force in defense of one’s self. During voir dire, the State’s attorney said:
In Murder cases, we see the defense of self-defense come up, and basically — and in order for the defеnse to prove self-defense, a person’s justified in using deadly force against another if he would be justified in using force under Section 9.31 ... if reasonable person in the actor’s situation would have retreated. So, it says if you — before you ever get self-defense, if a reasonable person would have retreated. You must retreat before using deadly force. When and to the degree he reasonably believes deadly force is immediately necessary to protect himself against the other’s use or attempted use of deadly force.
After voir dire, appellant invoked the defense of deadly force in defense of one’s self by testifying that he shot his father with a firearm because he feared his father would kill him. The trial сourt’s instructions to the jury following appellant’s testimony gave the sole option of finding the defendant guilty or not guilty of murder caused by a firearm, which is per se a deadly weapon, without any lesser included instructions and without any defenses. See Tex Penal Code Ann. § 1.07(a)(17)(A) (Vernon 2003) (specifically including firearm in definition of deadly weapon). From the statements in voir dire, the theme of appellant’s testimony, and the limited jury charge that had no lesser offenses or defenses, the record affirmatively demonstrates that the trial court must have understood that the reference
The dissenting opinion contends the circumstances here are like those in Bennett, where the Court of Criminal Apрeals determined that a request for a self-defense instruction did not alert the trial court that Bennett was requesting the defensive instruction of defense of a third person or the instruction of defense of property. See Bennett,
We hold that under the circumstances before the trial court, appellant’s objection to the omission of self-defense from the charge was specific enough for the trial court to be placed on notice that he was requesting the charge of deadly force in defense of one’s person because
• appellate courts and practitioners use the term self-defense interchangeably with deadly force in defense of one’s self;
• the only reference to self-defense by the attorneys in the trial was in the context of self-defense with a firearm, which is per se a deadly weapon; and
• the evidence concerned only the defense of deadly force in defense of one’s self, with no fact issue whether the decedent was killed with a deadly weapon, no lesser-included offenses, and no other defenses presented.
Error Analysis
The State contends the trial court did not err by denying the requested instruction because (1) no evidence showed he reasonably perceived he was in danger from deadly force by Carmen, who never attempted to use deadly force on the day of the shooting; (2) a reasonable person in his position would have retreated; and (3) appellant could not arm himself to seek a discussion with Carmen.
Deadly force is justified if the defendant would be justified in using force against the other, if a reasonable person in the actor’s situation would not have retreated, and 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. Tex. Penal Code Ann. § 9.32. The use of force аgainst another is not justified if the actor provoked the other’s use or attempted use of unlawful force unless the other nevertheless continues or attempts to use unlawful force against the actor. Id. § 9.31(b)(4)(B). A defendant “is justified in defending against danger as he reasonably apprehends it” as viewed in light of the evidence of the overt acts and words by the complainant, and there is no additional requirement that the jury find that the complainant was actually using or attempting to use unlawful deadly force against appellant. Guilbeau,
Viewing the evidence in a light favorable to appellant, the circumstances surrounding the shooting support the appellant’s reasonable belief that unless appellant resorted to deadly fоrce, Carmen would cause appellant serious bodily injury by administering a beating more severe than the prior beating that put appellant in the hospital. See Guilbeau,
The State further says that “it could be argued” that appellant could not arm himself to seek a discussion with Carmen. An exception to self-defense applies when the defendant “sought an explanation from or discussion with the other person concerning the actor’s differences with the other person while the actor was carrying a weapon in violation of Section 46.02.”
Although the State does not contend appellant provoked the incident, we note that there was a question of fact whether appellant provoked the difficulty, because appellant testified that he did not retrieve the gun until after complainant told him that he was going to up the ante, which meant that he was going to be beaten worse than the beating that had previously landed appellant in the hospital. See Dyson,
We hold that the trial court erred by refusing to charge the jury оn the law concerning deadly force in defense of one’s person because appellant presented evidence to establish the justification defense.
Harm Analysis
The State contends that if we determine the court’s charge was erroneous, we should find the error harmless because the evidence overwhelmingly shows that appellant’s actions constituted premeditated murder.
Having determined that appellant properly preserved error by objecting to the charge, we must reverse the conviction if appellant suffered any actual harm by the omission of the defensive instruction. See Almanza v. State,
Under the first factor, we note that the jury charge gave the jury the sole option of finding appellant guilty of murder. The charge instructed the jury to find appellant guilty of murder if the jurors believed beyond a reasonable doubt that appellant intentionally or knowingly committed an act dangerous to human life by “shoot[ing] [Carmen] with a deadly weapon, to wit: a firearm. Appellant admitted this conduct, contending that he did so to defend himself.” The charge did not allow the jury to consider any lesser offense or defensive issue.
In examining the evidence under the second factor, appellant presented evidence confined to the sole theory of self-defense with a deadly weapon. The record shows that appellant’s entire defense rested on his right to defend himself from Carmen, a person he admittedly shot and killed. Appellant did not attempt to present evidence of any lesser offense or any other defense other than self-defense with a deadly weapon.
The third factor requires that we examine the arguments of counsel. The State’s argument emphasized that appellant admitted shooting Carmen. Appellant’s attorney’s closing argument emphasized the harsh treatment and abuse of appellant at the hands of Carmen. Appellant’s attorney summed up his argument, saying, “[W]hat [appellant] did is the only thing he knew to get away, to save himself, to try to save himself. It was the wrong thing to do, but he felt driven to it.”
In rebuttal to the argument, the State asserted,
... [T]here is no evidence to suggest that [appellant] did not do it. In fact, in his own words, he told you, “I shot my dad.” That’s the answer. “I shot my dad.”
There’s no self defense, there’s no justification. There is nothing, nothing in this charge that says you can be driven to kill a person. Nothing.
Under the fourth factor, statements during voir dire provide relevant information. As noted above, the State’s attorney addressed self-defense and the use of deadly force in self-defense during voir dire, indicating that the State knew the defense would be at issue. The case was tried from the beginning with the expectation that the jury would decide whether the shooting was legally justified.
An examination of the four factors shows that appellant’s entire defense rested on his right to defend himself from Carmen, a person he admittedly shot and killed. See Guilbeau,
Conclusion
We hold that appellant’s request was sufficient to alert the trial court that he was requesting the justification defense of deadly force in defense of one’s person, that evidence raised the defense, and that the error harmfully deprived appellant of the opportunity to have the jury consider the defense. We therefore reverse and remand for a new trial.
Justice TAFT, dissenting.
Notes
. Neither the Moun nor Ferret decision was premised on preservation of error based on an analysis of whether the objection made by the defendant’s attorney at trial was sufficient to place the court on notice of the request. See Moun v. State, No. 01-06-00790-CR,
. Section 46.02 of the Texas Penal Code states, "A person commits an offense if he intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club.” Tex. Pen.Code Ann. § 46.02(a) (Vernon 2003).
Dissenting Opinion
dissenting.
Is a request for a jury instruction on self-defense sufficient to put the trial court
In Bennett, the Court of Criminal Appeals reasoned that self-defense and defense of a third person are separate defenses enumerated in separate sections of the Texas Penal Code
Because I believe that the rationale of Bennett squarely controls the disposition of this case, I respectfully dissent.
. Compare Tex. Penal Code Ann. § 9.31 (Vernon Supp.2008) ("Self-Defense”) with id. § 9.33 (Vernon 2003) ("Defense of Third Person”). Note that in between these two defenses lies "Deadly Force in Defense of Person.” See id. § 9.32 (Vernon Supp.2008).
. In fаct, the only relevant evidence of a defense at trial was evidence that appellant was acting in defense of a third person. See generally Bennett v. State, No. 05-05-01420-CR,
. The Court of Criminal Appeals stated that it would have been a different case had the record indicated that the trial court actually understood appellant’s request to encompass the matters about which the appellant complained on appeal, citing Texas Rule of Appellate Procedure 33.1(a)(1)(A) ("unless the specific grounds were apparent from the context”). Bennett v. State,