Michael Shawn Alexander v. State ( 2016 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00290-CR
Michael Shawn Alexander, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
NO. D-1-DC-13-201709, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant Michael Shawn Alexander of the offense of assault
family violence.1 After Alexander pleaded true to three enhancement paragraphs alleging a total of
eight prior convictions, including a prior conviction for the offense of assault family violence, the
district court rendered judgment on the verdict and sentenced Alexander to 25 years’ imprisonment.
In a single issue on appeal, Alexander asserts that the district court erred in failing to instruct the jury
on the law of self-defense. We will affirm the judgment of conviction.
BACKGROUND
The jury heard evidence that on the night of March 25, 2013, Officers
Michael Cornett and Jared Carruth of the Austin Police Department were standing outside a
residence in East Austin, investigating a report of a possible suicide attempt, when they heard
what Cornett characterized as a “high-pitched kind of shrill scream” coming from “somewhere
1
See Tex. Penal Code § 22.01(b)(2).
in the immediate area.” The officers headed in the direction where they had heard the scream and
encountered two individuals on a driveway who told the officers that they had “heard a commotion
and saw a male running from the general area” and pointed the officers east. Shortly thereafter,
Cornett testified, the two officers observed a man, later identified as Alexander, standing outside a
residence, “kind of banging on the door and yelling.” The officers detained Alexander until other
officers arrived. Cornett also entered the residence, where he encountered a female resident, later
identified as Darnise Bowens, who informed him “that there had been an altercation” and that she
had been assaulted.
Officer Troy Wiser of the Austin Police Department investigated the incident. Wiser
testified that, upon arriving at the residence, he proceeded to interview Bowens. According to Wiser,
during the interview, Bowens was “seated on a couch or chair in her living room and she was crying.
She was real red faced. Her hair looked like it had been pulled and messed up in the back. She
was—she was generally just real upset and seemed afraid.” He added, “She was having difficulty
speaking through her crying. She seemed just very nervous, afraid for her safety.” Wiser testified
that Bowens told him that she and Alexander had been married but were now divorced and
that, during the course of an argument between them that night, Alexander had strangled her. Wiser
observed “a bloodstain on her shirt toward the collar” but otherwise did not observe any blood on
Bowens or any visible injuries to her neck. Following his interview with Bowens, Wiser proceeded
to interview Alexander and, after concluding that Alexander was not being forthcoming regarding
the night’s events, subsequently arrested him for assault.
When Wiser arrived at the police station and began the booking process with
Alexander, Wiser observed what appeared to be a “bite mark” on Alexander’s upper right arm
below his shoulder and what Wiser characterized as “a very small cut” on Alexander’s upper lip.
2
Wiser testified that the bite mark was consistent with Bowens’s description of the manner in which
the assault had occurred. Wiser explained,
[T]he way she had described that he had his arm around the front of her neck,
that would have placed her face right about here (indicating) and during a struggle
that would have been a defensive wound for her to try and get his arm away from
her face. And so at that point I recognized that as being exactly where her face could
have been during that point. And that’s a common defense to try and get out of a
choke hold or a strangulation.
Wiser added that it was “very unlikely” that the bite mark was the result of Bowens attacking
Alexander. He testified, “If she was attacking him . . . it would be very unlikely . . . that she would
be able to get in that position without having any interference from his arms pushing her away,
holding her. It’s just a very unlikely spot for an offensive wound.” Wiser also explained that the
cut on Alexander’s lip could have been caused by Bowens’s fingernails scratching his face as she
was attempting to break free from Alexander choking her. On cross-examination, when asked if
Alexander’s injuries could have been consistent “with him being attacked” by Bowens, Wiser
testified that “[a]nything is possible.”
Bowens also testified and provided her account of the incident. According to
Bowens, although she and Alexander were divorced, she had, prior to the incident, allowed him to
resume living with her. On the night in question, she “wanted to take a bath and go to sleep” but
Alexander was “insisting” that she spend time with him. Bowens testified that Alexander followed
her into the bathroom and “put his arm around [her] neck and began to choke [her].” Bowens
described the choking as Alexander “pulling” and “locking” his arm “tight” around her throat to the
extent that Bowens feared he might break her neck. Bowens recounted that as she attempted to break
free of Alexander—biting his arm in the process—she eventually screamed out and Alexander
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released her, throwing her toward the bathtub. According to Bowens, she then ran out of the
bathroom and into her bedroom, where Alexander “grabbed [her] again” and pushed her onto the
bed, holding her down. Bowens testified that she again broke free from Alexander and ran into the
living room, where she was “stopped by him again and pushed in the chair.” At that point, Bowens
explained, Alexander “got on top of [her] and began to put his hands around [her] neck. And his
words were, ‘I’m going to go to jail for something.’” Bowens added, “I was fighting him off, trying
to keep him [away], but he overpowered me. And all I could say, you know, why are you doing this?
And I saw, you know, the rage in his eyes.” In an effort to get Alexander off of her, Bowens “began
to punch” Alexander and “eventually he let [her] go.” Bowens then “ran clean out of the house,”
and Alexander “ran after [her].” Bowens further testified that as Alexander chased her around the
yard and repeatedly “grabbed” at her, she proceeded to scream in an attempt “to get help,”
which prompted Alexander to move away from her. Bowens then ran back inside the house, pushed
furniture against the front door to prevent Alexander from entering, and hid in the bedroom until the
police arrived.
One of the defense witnesses, Bobby Epstein, had spoken with Alexander following
his arrest. According to Epstein, Alexander had told him that he was “in a fight with Darnise and
that “she was upset about something.” Epstein added, “He told me, ‘I have blood on my shirt that
was mine, I didn’t hurt her, [] she was very angry.”
During the charge conference, Alexander requested an instruction on the law of self-
defense. The district court denied the request. The jury found Alexander guilty as charged, and
the district court rendered judgment on the verdict, sentencing him to 25 years’ imprisonment
after Alexander pleaded true to the State’s enhancement paragraphs as indicated above. This appeal
followed.
4
ANALYSIS
In his sole issue on appeal, Alexander asserts that the district court erred in denying
his request for an instruction in the jury charge on the law of self-defense. According to Alexander,
the evidence tending to show that he was injured by Bowens during the incident, including the bite
mark on his arm, the cut to his lip, and the blood on his and Bowens’s shirts following the incident,
sufficiently raised the issue of self-defense so as to require an instruction to the jury on the issue.
The district court shall provide the jury with “a written charge distinctly setting
forth the law applicable to the case.”2 The law applicable to the case includes “statutory defenses,
affirmative defenses, and justifications whenever they are raised by the evidence.”3 “[A] defense
is supported (or raised) by the evidence if there is some evidence, from any source, on each
element of the defense that, if believed by the jury, would support a rational inference that that
element is true.”4
“[W]e do not apply the usual rule of appellate deference to trial court rulings when
reviewing a trial court’s decision to deny a requested defensive instruction.”5 Instead, “we view
the evidence in the light most favorable to the defendant’s requested submission.”6 “A defendant
is entitled to an instruction on self-defense if the issue is raised by the evidence, whether that
evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may
2
Tex. Code Crim. Proc. art. 36.14.
3
Walters v. State, 247 S.W.3d 204, 208-09 (Tex. Crim. App. 2007).
4
Shaw v. State, 243 S.W.3d 647, 658-59 (Tex. Crim. App. 2007); see Tex. Penal Code
§ 2.03(c) (“The issue of the existence of a defense is not submitted to the jury unless evidence is
admitted supporting the defense.”).
5
Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006).
6
Id.
5
think about the credibility of the defense.”7 “On the other hand, if the evidence, viewed in the light
most favorable to the defendant, does not establish self-defense, the defendant is not entitled to an
instruction on the issue.”8
The elements of a self-defense claim are set forth in section 9.31 of the Penal Code,
which provides that “a person is justified in using force against another when and to the degree the
actor reasonably believes the force is immediately necessary to protect the actor against the other’s
use or attempted use of unlawful force.”9 “Thus, in order to justify the submission of a charge to
the jury on the issue of self-defense, there must be some evidence in the record to show that the
defendant was in some apprehension or fear of being the recipient of the unlawful use of force from
the complainant.”10 Additionally, by its express terms, the statute requires some evidence that the
defendant had a “reasonable belief” that his use of force was immediately necessary to protect
himself from the other’s use or attempted use of unlawful force.11 Accordingly, to be entitled to a
jury instruction on the issue of self-defense, there must be some evidence in the record of the
7
Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001).
8
Id.
9
Tex. Penal Code § 9.31(a).
10
Smith v. State, 676 S.W.2d 584, 585 (Tex. Crim. App. 1984); see Jones v. State,
859 S.W.2d 537, 539-40 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d); see also Vaughn v. State,
No. 03-10-00510-CR, 2011 Tex. App. LEXIS 5037, at *17 (Tex. App.—Austin July 1, 2011,
no pet.) (mem. op., not designated for publication).
11
See Tex. Penal Code § 9.31(a). A “reasonable belief” means a belief that would be held
by an ordinary and prudent man in the same circumstances as the actor. Id. § 1.07(a)(42).
6
defendant’s state of mind or “observable manifestations” of the defendant’s state of mind at the time
he used force against the complainant.12
Viewed in the light most favorable to Alexander, the evidence summarized above
tends to show that Bowens was “very angry” and “upset” during the altercation and that she injured
Alexander as they fought—she bit his arm, cut his lip, punched him, and even caused him to bleed.
But this evidence, without more, does not establish anything regarding Alexander’s state of mind
during the altercation. There is no evidence in the record from which a reasonable fact-finder could
infer that Alexander was in “apprehension or fear” of Bowens at any point during the altercation
or that Alexander had a reasonable belief that his use of force against Bowens was immediately
necessary to protect himself from any unlawful force that might have been used by her. Accordingly,
on this record, we cannot conclude that the district court erred in denying Alexander an instruction
on the law of self-defense.13
12
See VanBrackle v. State, 179 S.W.3d 708, 713 (Tex. App.—Austin 2005, no pet.); Reed
v. State, 703 S.W.2d 380, 385 (Tex. App.—Dallas 1986, pet. ref’d). Examples of “observable
manifestations” of a defendant’s state of mind would include evidence tending to show that
the defendant “called for help” during an altercation or that the defendant told the complainant
to “leave [him] alone” as they struggled. See Smith, 676 S.W.2d at 586; VanBrackle, 179 S.W.3d
at 714.
13
See Dyson v. State, 672 S.W.2d 460, 463-64 (Tex. Crim. App. 1984); Dominguez v. State,
506 S.W.2d 880, 882 (Tex. Crim. App. 1974); Lee v. State, 442 S.W.3d 569, 578 (Tex. App.—San
Antonio 2014, no pet.); Davis v. State, 268 S.W.3d 683, 697-98 (Tex. App.—Fort Worth 2008,
pet. ref’d); Broussard v. State, 809 S.W.2d 556, 559-60 (Tex. App.—Dallas 1991, pet. ref’d);
Reed, 703 S.W.2d at 384-85; see also Gonzales v. State, No. 03-12-00620-CR, 2014 Tex. App.
LEXIS 12944, at *8-9 (Tex. App.—Austin Dec. 4, 2014, pet. ref’d) (mem. op., not designated for
publication) (concluding that evidence tending to show that complainant injured defendant during
altercation, without more, was insufficient to raise issue of self-defense); Reynolds v. State,
No. 07-11-00500-CR, 2012 Tex. App. LEXIS 10501, at *8-11 (Tex. App.—Amarillo Dec. 19, 2012,
no pet.) (mem. op., not designated for publication) (concluding that evidence tending to show that
complainant kicked defendant prior to defendant striking complainant was insufficient to raise issue
of self-defense because it did not establish that defendant had reasonable belief that his force was
immediately necessary to protect himself from complainant’s use of force against him; observing
7
We overrule Alexander’s sole issue on appeal.
CONCLUSION
We affirm the judgment of conviction.
__________________________________________
Bob Pemberton, Justice
Before Justices Puryear, Pemberton, and Bourland
Affirmed
Filed: January 21, 2016
Do Not Publish
that “[s]elf-defense is not to be confused with retaliation”); Heath v. State, No. 05-10-01084-CR,
2012 Tex. App. LEXIS 4471, at *15-17 (Tex. App.—Dallas June 6, 2012, pet. ref’d) (op.,
not designated for publication) (concluding that evidence tending to show that knife used in
altercation had defendant’s blood on it and that defendant suffered minor injuries during altercation
with complainant was insufficient to prove that appellant had reasonable belief that force was
immediately necessary to protect himself from complainant); Vaughn, 2011 Tex. App. LEXIS 5037,
at *19 (“In addition to the evidence that Vaughn initiated the altercation, there is also no evidence
showing that Vaughn was in apprehension or fear of being the recipient of unlawful use of force
from [the complainant] when he began hitting [her] and no evidence showing any observable
manifestations of Vaughn’s alleged belief that he needed to hit [the complainant] in order to prevent
her from using unlawful force against him.”); Shepherd v. State, No. 14-08-00970-CR, 2011 Tex.
App. LEXIS 133, at *19-21 (Tex. App.—Houston [14th Dist.] Jan. 11, 2011, pet. ref’d) (mem. op.,
not designated for publication) (concluding that “the mere existence of” injury to defendant caused
by victim does not establish that defendant had reasonable belief that use of force was immediately
necessary to protect himself from victim).
8