Case Information
*1
RECEIVED IN COURT OF CRIMINAL APPEALS
JAN 152015
1354-14
ORAL ARGUMENT
NOT Requested
ORIGINAL
C.O.A. CASE No. 12-13-DO126-CR
IN THE
Court of CRiminal APPeals of TEXAS AUSTIN, TEXAS
CHESTER ALAN STARES, APPEALANT VS. FILED IN THE STATE OF TEXAS, APPROQUENIE OF CRIMINAL APPEALS JAN 23255
APPELLANTS DRIEF Abel Acosta, Clerk on PETITION for DISCRETIOMARY REVIEW on the APPEAL from the 3rd Judicial District Court of Anderson County, Texas (Trial Court No. 30979) Pam Foster Fletcher, Judge Presiding
CHESTER ALAN STAPLES TDCP-ID #01853049 Estrile Unit, 264 F.M. 3478, Huntsville, TX.77320 APPEtlant Pro- 2 PATIONOR 1 OF 14
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1.
IDENTITIES OF PARTIES AND COUNSEL
Judge Presiding: PAm Foster Fletcher Anderson County Court House Palestine, Texas 75801
For the State at TRIAL: Doug Lowe TBC 12622400 District Attorney Stanley Seks Lows Ki TBC 200744671 Aust. District Attorney Anderson County Court House Palestine, Texas 75801
For the Defendant at Trial: Mabin Whitaker TBC 2127400 Stuart Whitaker TBC 20078041 P0, Box 2288 Falssting, Texas 75801 For the Defendant on Appal: Wm. M. House, JR. TBC 70045000 800 N. CHUKCH P.O. Box 1486
Palestine, Texas 75801.
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TABLE of Contents
Identity of Judge, Parties, and Counsel. ..... 2 Table of Contents ..... 3 Index of Autharitiis Statement regarding Oral Argument ..... 6,7 Statement of the Case ..... 4 Statement of Procedural History ..... 5 Grounds for Review ..... 5 Argument ..... Player for Relief ..... 14 Appendix (included) Last (7 pages)
*4 STATEMENT Regarding Oral Argument
Oral argument is not necessary, there are wolved. It is very obvious that defendant was not adequately represented at trial. Pefendent and Appollant are one and the same through our Section.
STATEMENT of the Case
On July 12, 2012 Appollant was indicted for 1 count of murder and one count of Unlawful Possession of Firearm by a Frain. Trial began with Voir Dire on April 8, 2013 and on April 11, 2013, the jury found Appollant quilty of both counts. On April 12, 2013, the jury returned a verdict of 55 years contive- ment in the Texas Department of Criminal Justice on Count 1 and 50 years confinement on count 2. (CRP58)
Timely notice of Appeal was given to the Court,
*5 STATEMENT OF Procedural History In the Court of A Phrals, Twelfth Court of A Phrals District Tyler, Texas Opinion delined September 17, 2014. No motion for rehancing was filed.
CROUNDS FOR REVIEW Instructive assistance of counsel. #I ERRONEOUS CHARGE OF THE COURT #2 Incomphre CHARGE OF THE COURT. #3 Plain ERROR "Fundamental ERROR" #4
*6 Index of Abthorities ADDNOR V5. STATE 871 SW 2d 726 (1999) ARMSTRONG V5. STATE 653 SW 2d 810 (Tk,Crim. App. 1983)
TEX. CRim. App. 1992 Koy 33 VERNevs TEX. CODE ANN. P.C. 5 9.02, 9.22, 12.42, 12.43, 46.05
Dooth V5. STATE 679 SW 2d 498 Smith V5. STATE 676 SW2d 584-87 (TEX. (Crim. App. 1984)
United STATES ox rel. Bernard Vs Lono 819 F. 2d 798 (7th Cir. 1987) Rou V5. United STATES 199 F3d 37, 98 (1st Cir. 1999)
United STATES V5. Mooney 4973 d 397 (4th Cir. 2007
Young V5. STATE 530 SW 2d 120 (TEX. (Crim. App. 1975
5 of 426 of 14
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Index of Authorities Cont.
Vernons TEX code Ann. CA. P.O2 N. 8 Counsel Pinal Code 9.31 N. 136, 154
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ARGUMENT
The TRIal Court committed reversible error in failing to grant Appellants request for Penal Code 922, Necessity Defense in the courts charge at Guilt/Innocence. Denig very harmful to Appellant, and grossly changing outcome of Trial.
THis is clearly a violation of the 14th Ad mendment, a Constitutional Right. Prohibiting the STATE from denying due process and equal protection and from abridging the privileges and immunities of U.S. Citizenship.
Abdnck V. STATE 871 sw 2 d 726 Evidence > Inferences > Presumptions
There is a presumption that the jury will properly consider evidence when correctly instructed by the trial judge. Conversely, where no instruction is given, the court cannot follow the presumption that the jury properly considered the evidence at TRIal.
Armstrong V. STATE 653 sw 2 d 810 ; 1483 TEX. CRim. App. Appellant sought review of conviction of carrying a handgun. [653 sw 2 d 811 ? It should have been up to the jury to deter mine whether to believe appellants Testimony, and if the Testimony was believed; whether the circum-
*9 stances meet the criteria of P.C. 9.22
TEK. CRim. App. 1882. Kcy 38 Justification of necessity is not excluded as a defense to the defense of possession of a firearm by a felen, nor has it been excluded as a defense when an offense is enhanced. V.T.C.A. P.C. $9.02,9.22,12.42, 12.43, 46.05.
Both V. STATE 679 sw 2d 498 The Trier of fact has the sole responsibility to decide whether to except or reject a defensive theory. To acquir, the jury only needed to find a reasonable doubt as to whether appellants actions where justified.
Futher more: C.HARGE of the Court is incomplete. Creating Egizious harm, a funda mental error depriving Appellant of fair and impartial Trial. Page 4, section 5, paragraph 1, informs jury that self-defense may be considered. There is no complete instruction on self-defense through our the entire Charge of the Court. Therefore jury was deprived of the appropriate evaluation of self-defense, because it was not explained to them in full.
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Young V., STATE, 530 SW 2d 120 (TEX, Crim. App. 1475. IT WAS STATED:
IT is well settled that if the court's instruction limits the accusants' right of self-dotense by a charge on provoking the difficulty, then the jury should be advised in the proper instruction under the facts that accused's right of self-dotense would not necessarily be abridged by the fact that he carried arms to the scene of the difficulty if such instruction is supported by the evidence.
In not providing proper instruction Appellants Constitutional Rights have been violated. That being the 14th Adnendment. Producing Egregious Harm, and affecting the outcome of trial.
Serial Code 9.31 Note 176
One who arms himself, fearing danger, and seeks explanation in proper case, has right to have jury told fact that he did so arm himself would not deprive him of right of self-dotense.
Right To Carry Wrapers: Note 154 (RC.) When trial court has charged jury on provoking the difficulty, trial court must give charge on dotendants right to arm himself and seek discussion or explanation of difficulty ( 423 SW 2d 744)
*11 Infective Assistance of Counsel is also brought to the attention of the Court. Bringing about very Egregious harm to the appolant, and changing outcome of trial.
If evidence is presented to raise an issue, Counsel should request instruction.
Smith V. StME 676 sw2d 584-87 (TEY. (Crin. App. 1484) Self-dotence may be raised by the testimony of other witnesses describing the circumstances of the alleged offence. A defendant is entitled to an affirmative de tension instruction on every issue raised by the evidence, regardless of whether the proof is strong and unimpeached, or feeble and contiadicted, even if the trial court is of the opinion the testimony is not entitled to belief.
Harm to 7 third Person not regurted by Counsel. Therefore, I. A. C.
Clinital Law + Procedure ? Detences ? Necessity "Harm", in the context of the deference of necessity, includes harm to a third person whose welfare a defendant is intrusted.
*12 (Clinical Law + Procedure >Trials) Potendants Rights) Right To Due Precuss.
The right to present a defense is a fundamnital element of due process.
United States ex rel. Barnard V. Lane 814 F. 2d 798 (7th Cir. 1987) Counsels failure to request jury instruction on lessor included offences in murder prosecution was inffective assistance.
When an atterney fails to raise an important obvious defense without any imaginable sדkateric or tactical reason for the omission, his performance fails below the standard of proficient representation that the constitution demands.
Counsel for Appellant did not request any offensive instruction, other than Necessity. Therefore ineffective assistance and very harmful to appollant. Violating the 14th amendment and affecting the outcome of the trial.
United States V. Moony 497 3d 397 (4th Cir. 2007)
*13 In effective assistance of Counsel, where Counsel failed to advise defendant of innocent possession defense to fobion in possession of five orm charge.
Appellent was net advised of innocent possession of firearm by action as a defense. Aviation of the 14th amendment, and very harmful, affecting the outcome of the trial.
*14 PRAYER
Wherefore, Premises Considered, Appellant prays that the Court of Criminal Appeals reverse the decision of the Court of Appeals and remand this matter for a new trial.
Respectfully Submitted, Obst. 6. Stable
CHESTER ALAN STABLES APPELLANT, pro-SE TDCJ-1D*01853049 264 F.M. 3478 Hantsville, TX, 77320-3320
13-0613 14 of 14
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NO. 12-13-00126-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CHESTER ALAN STAPLES, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 3RD
JUDICIAL DISTRICT COURT
ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Chester Alan Staples appeals his convictions for murder and unlawful possession of a firearm, for which he was assessed sentences of imprisonment for fifty-five years and fifty years, respectively. Appellant raises one issue challenging the trial court's refusal to submit a jury instruction on the defense of necessity. We affirm.
BACKGROUND
Appellant was charged by indictment with murder and unlawful possession of a firearm and pleaded "not guilty." The matter proceeded to a jury trial.
The evidence at trial showed that on May 25, 2010, Appellant went to the home of the victim, Tracey Polley, to retrieve a lawn mower that he had sold Polley and for which he had received only partial payment. The two had previously argued about the mower over the phone, and Polley told Appellant that he would shoot him if he came to get it. Appellant, a convicted felon, obtained a handgun before going to the residence.
As Appellant was preparing to load the mower, Polley came out of the house with a loaded handgun. After a brief argument outside the residence, the two men opened fire on each other. Appellant was shot through the hand and in the eye. Polley was shot five times and died before paramedics arrived. The evidence is conflicting as to who fired first.
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The trial court's jury charge included an instruction on self-defense. Appellant requested an additional instruction on the defense of necessity, but the trial court denied his request. Ultimately, the jury found Appellant "guilty" of murder and unlawful possession of a firearm. The jury assessed his punishment at imprisonment for fifty-five years and fifty years, respectively. This appeal followed.
Necessity Defense
In his sole issue, Appellant argues that the trial court erred in refusing to submit a jury instruction on the defense of necessity. The State disagrees, contending that Appellant is not entitled to an instruction on the defense because the harm was not imminent when he armed himself with the firearm, and because he placed himself in a dangerous situation.
Standard of Review
"A defendant is entitled to an instruction on every defensive issue raised by the evidence, regardless of whether the evidence is strong, feeble, unimpeached, or contradicted, and even when the trial court thinks that the testimony is not worthy of belief." Walters v. State, 247 S.W.3d 204, 209 (Tex. Crim. App. 2007). "This rule is designed to insure that the jury, not the judge, will decide the relative credibility of the evidence." Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). To raise a defensive issue, the evidence must raise each element of the defense. Stefanoff v. State, 78 S.W.3d 496, 499 (Tex. App.-Austin 2002, pet. ref'd). "If evidence is such that a rational juror could accept it as sufficient to prove a defensive element, then it is said to 'raise' that element." Id. "When evidence from any source raises a defensive issue, and the defendant properly requests a jury charge on that issue, the trial court must submit the issue to the jury." Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993). "Thus, if the issue is raised by any party, refusal to submit the requested instruction is an abuse of discretion." Darty . State, 994 S.W.2d 215, 218 (Tex. App.-San Antonio 1999, pet. ref'd). When reviewing a trial court's refusal to submit a defensive instruction, we view the evidence in the light most favorable to the requested instruction. Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006).
Applicable Law
The Texas Penal Code provides that
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[c]onduct 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. Penal Code Ann. § 9.22 (West 2011). "The requirements of subsections 9.22(1) and (2) must be satisfied by evidence, while subsection (3) presents a question of law." Pennington . State, 54 S.W.3d 852,(657) (Tex. App.-Fort Worth 2001, pet. ref'd). Additionally, "a defendant must admit to the conduct-the act and the culpable mental state-of the charged offense to be entitled to a necessity instruction." Juarez v. State, 308 S.W.3d 398, 399 (Tex. Crim. App. 2010).
Reasonable Belief of Immediate Necessity to Avoid Imminent Harm
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 Supp. 2013). "'Imminent' means something that is impending, not pending; something that is on the point of happening, not about to happen." Pennington, 54 S.W.3d at (657) "Harm is imminent when there is an emergency situation and it is 'immediately necessary' to avoid that harm." Id. "In other words, a split-second decision is required without time to consider the law." Id. "Evidence of a generalized fear of harm is not sufficient to raise the issue of imminent harm." Brazelton v. State, 947 S.W.2d 644, 648 (Tex. App.-Fort Worth 1997, no pet.). If undisputed facts indicate a complete absence of immediate necessity or imminent harm, then a defendant's belief that his conduct is immediately necessary to avoid imminent harm is unreasonable as a matter of law. Pewalt v-Stat, 307 S.W.3d 437, 454 (Tex. App.-Austin 2010, pet. ref'd).
The evidence shows that Polley threatened to shoot Appellant if he came for the lawn mower. Appellant then obtained a gun and took it to Polley's house. Based on Polley's threat, Appellant may have reasonably had a generalized fear of future harm, but the undisputed facts show a complete absence of immediate necessity and imminent harm at the time he obtained the gun and took it to Polley's house. Therefore, any belief of Appellant that these actions were immediately necessary to avoid imminent harm was unreasonable as a matter of law. See Miller v. State, No. 02-11-00155-CR, 2013 WL 362792, at *8 (Tex. App.-Fort Worth Jan. 31, 2013,
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pet. ref'd) (mem. op., not designated for publication) (no imminent harm where appellant carried firearm into bar because he feared bouncer had been involved in robbery of his girlfriend), cert. denied, 134 S. Ct. 640, 187 L. Ed. 2d 420 (2013). Thus, the evidence does not raise the first element of the necessity defense in regard to the offense of unlawful possession of a firearm by a felon.
The evidence further shows that when Appellant arrived at Polley's house, he backed a trailer up to the lawn mower he had sold Polley. Polley then came out and got close enough to Appellant to strike him with either his fist or his gun. Then, according to Appellant, his father, and his girlfriend, Polley shot Appellant in the face, and Appellant returned fire. According to Polley's housemate, on the other hand, Polley only hit Appellant and knocked him to the ground before Appellant started shooting.
While some of the evidence is conflicting, we conclude that a rational juror could accept the evidence as sufficient to prove that Appellant reasonably believed shooting Polley was immediately necessary to avoid the imminent harm of being shot again. Therefore, the evidence raises the first element of the necessity defense in regard to the offense of murder.
Balancing of Harm to be Avoided and Harm Intended to be Prevented by Statute
To raise the second element of the necessity defense, evidence in the record must show that "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." Tex. Penal Code Ann. § 9.22(2). In other words, there must be evidence that the harm the defendant sought to avoid was greater than the harm caused by his conduct. See 334 S.W.3d 368, 385 (Tex. Crim. App. 2010). The obvious intent of section 9.22(2) is "to facilitate the desired balancing of harms on a case-by-case basis." Williams v. State 630 S.W.2d 640, 643 n. 2 (Tex. Crim. App. 1982). "Ordinary standards of reasonableness" may be defined as the standards that an ordinary and prudent person would apply to the circumstances that the actor faced." Id. at 643 .
When the evidence at trial raises the first element of the necessity defense, but fails to raise the second, the trial court does not err in denying a defendant's claim to the defense. See Rios v. State, 1 S.W.3d 135 (Tex. App.-Tyler 1999, pet. ref'd); Shugart v. State, 32 S.W.3d 355, 364 (Tex. App.-Waco 2000, pet. ref'd). In Rios, the appellant testified that he possessed a deadly weapon in prison because he had been attacked and threatened repeatedly and needed
*19 immediate protection from further imminent attack. Rios, 1 S.W.3d at 136-37. We concluded that the evidence was adequate to establish the first element of the necessity defense. Id. at 137. However, regarding the second element, we noted that by banning deadly weapons in prison, the legislature intended to protect all inmates and prison employees, and that appellant did not show how his safety clearly outweighed that of the other inmates and employees. Id. Accordingly, we held that the trial court did not abuse its discretion by excluding evidence of the necessity defense. Id. at 137-38.
As in Rios, the evidence in this case raises the first element of the necessity defense in regard to the offense of murder, but it fails to raise the second. The second element required a showing that the harm Appellant avoided by his conduct-his own death-clearly outweighed the harm the legislature sought to prevent by enacting the murder statute-in this case, Polley's death.
In the light most favorable to Appellant, the evidence shows that Appellant, a convicted felon, sold a lawn mower to Polley, a landscaper and crack cocaine dealer. The mower had recently been stolen from a local prison ministry where the estranged wife of one of Appellant's friends worked. When the friend's wife discovered that the mower was missing, she asked her husband where it was. In response, he said something like, "that Chet," which led her to believe that Appellant was involved in the theft. She then confronted Appellant about the missing mower, but Appellant denied any involvement.
At the time, Polley had not fully paid Appellant for the mower, and Appellant decided to get the mower back. The two men argued over the phone, and Polley threatened to shoot Appellant if he tried to retrieve the mower. Appellant obtained a handgun, went to Polley's home with a truck and trailer, and backed the trailer up to the lawn mower. Polley came out of the house with a gun and approached Appellant. The two men argued briefly, and then Polley hit Appellant in the face and shot him in the hand and eye. To protect himself from being shot again, Appellant fired back, shooting Polley five times and killing him.
We have carefully reviewed the record for any evidence that would support a rational juror's conclusion that the harm Appellant avoided clearly outweighed the harm he inflicted. Appellant suggests no reason on appeal why his own death would have been a greater harm than Polley's, and we find no evidence in the record to support such a conclusion. Therefore, we
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conclude that the evidence does not raise the second element required to raise the defensive issue of necessity in regard to the offense of murder.
Because we have concluded under the first and second elements that Appellant is not entitled to an instruction on the necessity defense, we need not consider the third element, whether a legislative purpose to exclude the defense exists. See TEX. R. APP. P. 47.1.
Conclusion
The trial court did not abuse its discretion in refusing to submit a jury instruction on the necessity defense. Regarding the offense of unlawful possession of a firearm, there is no evidence raising the first element of the defense because there was no imminent harm to be avoided when Appellant armed himself with the gun. Regarding the offense of murder, there is no evidence raising the second element of the defense, that the harm sought to be avoided clearly outweighed the legislative intent in establishing the offense. Therefore, we overrule Appellant's sole issue.
DISPOSITION
Having overruled Appellant's sole issue, we affirm the trial court's judgment.
Brian Hoyle
Justice Opinion delivered September 17, 2014. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
SEPTEMBER 17, 2014
NO. 12-13-00126-CR
CHESTER ALAN STAPLES,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 3rd District Court of Anderson County, Texas (Tr.Ct.No. 30979)
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.
Brian Hoyle, Justice. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.