Charles Dane Hill v. State ( 2015 )

ACCEPTED
13-14-00742-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
6/17/2015 3:30:26 PM
CECILE FOY GSANGER
CLERK
CAUSES 13-14-00742-CR, 13-14-00743-CR, & 13-14-00744-CR
IN THE THIRTEENTH SUPREME JUDICIAL DISTRICT OF TEXAS AT
RECEIVED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
FILED CORPUS CHRISTI, TEXAS
6/17/2015 3:30:26 PM
IN THE 13TH COURT OF APPEALS
CORPUS CHRISTI - EDINBURG CECILE FOY GSANGER
Clerk
6/17/15
CECILE FOY GSANGER, CLERK
BY DTello CHARLES DANE HILL, APPELLANT
VS.
THE STATE OF TEXAS, APPELLEE
APPELLANT’S BRIEF
Trial Causes 13-11-9140, 13-11-9158, & 13-11-9159
Jackson County District Court
Submitted by
W. A. (BILL) WHITE
Attorney for Appellant
POB 7422, Victoria, TX 77903
(361) 575-1774 voice & fax
TBN 00788659
ORAL ARGUMENT NOT REQUESTED
1
IDENTITY OF PARTIES AND COUNSEL
Appellant was represented at trial by Mr. Larry
Sauer, Attorney at Law, and Mr. Doran Sauer, Attorney
at Law, both of 1004 West Avenue, Austin, TX 78701.
Appellant is represented on appeal by Mr. W. A. (Bill)
White, Attorney at Law, POB 7422, Victoria, TX 77903-
7422.
During trial, appellant was a resident of Jackson
County, Texas. Appellant is currently incarcerated in
IDTDCJ.
The State was represented at trial by Mr. Robert E.
Bell, D.A. and Ms. Pam Guenther, A.D.A., both of the
Jackson County District Attorney’s Office, located at
115 W. Main Street, 2nd Flr, Edna, TX 77957.
Appellant anticipates that the State’s reply brief
will be prepared and filed by Mr. Jim Vollers, 2201
Westover Road, Austin, TX 78703.
2
TABLE OF CONTENTS
Page
Index of Authorities 4
Appellant’s Brief 5
Statement of the Case and Statement of Facts 5
Issues Presented 10
Summary of Argument 10
Argument 12
Issue I 12
THE TRIAL COURT ERRED BY DENYING APPELLANT’S REQUEST
FOR JURY INSTRUCTION ON SELF-DEFENSE BECAUSE APPELLANT
PLED “NOT GUILTY” WHEN TRIAL BEGAN
Issue II 15
THE EVIDENCE IS INSUFFICIENT TO SHOW THAT APPELLANT
KNEW JASON MCCARRELL WAS A PUBLIC SERVANT WHEN SHOOTING
AT HIM
Prayer 19
Certificate of Service 19
Certificate of Compliance 20
3
INDEX OF AUTHORITIES
Cases Page
Anderson v. St., 11 S.W.3d 369 (Tex.App.-Houston 2000)
14
Conner v. St., 67 S.W.3d 192 (Tex.Crim.App. 2001) 16
Hamel v. St., 916 S.W.2d 491 (Tex.Crim.App. 1996) 15
Holberg v. St., 38 S.W.3d 137 (Tex.Crim.App. 2000) 16
Jackson v. Virginia, 443 U.S. 307 (1979) 15
MacDonald v. St., 761 S.W.2d 56 (Tex.App.-Houston 1998)
14
Saxton v. St., 804 S.W.2d 910 (Tex.Crim.App. 1991) 13
Vodochodsky v. St., 158 S.W.3d 502 (Tex.Crim.App.2005)
16
Walker v. St., 994 S.W.2d 199 (Tex.App.-Houston 1999)
15
Young v. St., 991 S.W.2d 835 (Tex.Crim.App. 1999) 14
Statutes
Tex.Pen.Code Ann., sec. 8.04(a)(Vernon 2013) 18
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CAUSES 13-14-00742-CR, 13-14-00743-CR, & 13-14-00744-CR
Trial Causes 13-11-9140, 13-11-9158, & 13-11-9159
CHARLES DANE HILL, Appellant IN THE THIRTEENTH
VS. COURT OF APPEALS AT
THE STATE OF TEXAS, Appellee CORPUS CHRISTI, TEXAS
APPELLANT’S BRIEF
TO THE HONORABLE JUSTICES OF SAID COURT:
COMES NOW APPELLANT, CHARLES DANE HILL, through
counsel, W. A. (BILL) WHITE, Attorney at Law, showing:
STATEMENT OF THE CASE AND STATEMENT OF FACTS
Appellant was indicted in November 2013 for
aggravated assault on public servant (13-11-9140; three
counts), aggravated assault with a deadly weapon (13-
11-9158; one count with three paragraphs), and deadly
conduct (13-11-9159; one count with two paragraphs).
These crimes were alleged to have all occurred on or
about 10/05/13 in Jackson County, Texas.
Under the State’s theory, the offenses all occurred
during a course of events lasting from morning into
5
late night of 10/05/13, ending with appellant’s
transportation by EMS for medical care, and subsequent
arrest by law enforcement.
On 10/05/13, appellant was scheduled to participate
in a local fishing tournament. (RR Vol. 5, p. 124). He
drank beer all day in large volume and ate Vodka-soaked
gummy bears. (RR Vol. 5, p. 74; p. 127). In the
afternoon, appellant visited an outdoor festival with
friends in nearby Victoria (25 miles away) named
“Bootfest”.
At Bootfest, which was crowded, appellant became
separated from his friends for about two hours. When
reuniting with appellant, friends noticed that he was
unusual in his behavior, and not himself. (RR Vol. 5,
pp. 132-134). According to trial testimony, appellant
later admitted to a witness that he ingested LSD during
his solitary wanderings at Bootfest. (RR Vol. 5, pp.
208-210)
Upon returning to rural Jackson County after
Bootfest, appellant began behaving aggressively toward
6
his friends at 694 County Road 313 East near
Vanderbilt. (RR Vol. 5, pp. 136-141). An argument
ensued between appellant and Adam Twardowski, and Adam
told appellant to leave his home. Not long afterward,
a physical struggle occurred on the premises inside a
pickup truck between Michael Cornwell and appellant, in
which appellant held a loaded pistol. During this
struggle, the pistol discharged, shooting a hole in the
truck’s roof and firing another projectile toward the
Twardowski house nearby. (RR Vol. 5, pp. 51-53). At
some point, Cornwell actually managed to stick one of
his fingers between the pistol’s hammer and firing
plate at the instant appellant pulled the trigger,
preventing the gun from firing another time. (RR Vol.
5, pp. 53-59). Appellant also bit Cornwell during this
scuffle.
Appellant then left the scene and returned to his
own residence nearby, while friends called 911 and
alerted law enforcement. As the darkness of night
fell, law enforcement officers from various local and
7
state agencies made their way to the residence of
appellant, who was now armed with a rifle. (RR Vol. 4,
p. 42)
Law enforcement kept their vehicle lights off to
avoid pinpointing their positions, hoping that
appellant would not see or fire at them. (RR Vol. 4,
pp. 43-46; 52). According to testimony, appellant
eventually fired at one officer, Deputy Jason
McCarrell. (RR Vol. 4, pp. 54-55)
It is important to note that peace officers on the
scene during this dark, country night intentionally
used neither their blue and red, overhead lights, nor
any other vehicle lights, including interior dome
lights. (RR Vol. 4, p. 52). Out in the country, after
sundown, it was very dark. Law enforcement relied on
thermal body sensor equipment (night vision) to
discover appellant holding his rifle, rather than using
flashlights. (RR Vol. 4, pp. 37-39). Also, the peace
officers did not verbally identify themselves as being
8
present, or that they were even peace officers, for the
same tactical reason. (RR Vol. 4, 46-47)
Appellant was ultimately subdued and taken into
custody after being shot in the arm by law enforcement.
He was medically stabilized and later jailed.
Appellant’s trial began on 11/17/14, with jury
selection starting the same day. The State’s case-in-
chief began on 11/18/14, and the State later rested its
case on guilt/innocence on 11/24/14. The defense
presented no witnesses at guilt/innocence. The jury
returned verdicts of guilty on all counts of the three
indictments, except count I of cause 13-11-9140
(attempted capital murder), which was not read to the
jury at the start of the State’s case-in-chief and was
presumably abandoned before trial began. (RR Vol. 3,
pp. 20-25; RR Vol. 7, pp. 105-106)
The punishment phase began on 11/25/14. Appellant
elected jury punishment. The jury assessed punishment
that same day at 20 years prison in cause 13-11-9140,
10 years in prison in cause 13-11-9158, and 5 years in
9
prison in cause 13-11-9159. The sentences were ordered
to run concurrently with no fines in any cause. (RR
Vol. 8, pp. 185-188). The causes were tried together
in a single trial. Appellant filed notice of appeal.
ISSUES PRESENTED
I. THE TRIAL COURT ERRED BY DENYING APPELLANT’S
REQUEST FOR JURY INSTRUCTION ON SELF-DEFENSE
BECAUSE APPELLANT PLED “NOT GUILTY” WHEN TRIAL
BEGAN
II. THE EVIDENCE IS INSUFFICIENT TO SHOW THAT
APPELLANT KNEW JASON MCCARELL WAS A PUBLIC
SERVANT WHEN SHOOTING AT HIM
SUMMARY OF ARGUMENT
It is error for a trial court to deny jury
instruction on the issue of self-defense because a
defendant enters a “not guilty” plea at the outset of
his jury trial. While self-defense is an affirmative
defense, and while elements of the charged crime must
be factually admitted by the defense throughout trial
to argue self-defense, merely entering a plea of “not
guilty” after the prosecutor reads the indictment at
10
the start of its case-in-chief does not preclude a
self-defense claim, nor its inclusion as an instruction
in the jury charge if the evidence supports.
There is insufficient evidence to support the
element in cause 13-11-9140 (second count) that
appellant “knew that Jason McCarrell was a public
servant”. Trial testimony established that, for
tactical reasons and reasons relating to officer
safety, McCarrell did not announce himself to appellant
as a peace officer on 10/05/13, nor did he allow any
lights on his police unit to illuminate, to avoid
alerting appellant to his position or highlighting
himself as a target. While this is a safety and
tactical measure, it also precluded any knowledge in
appellant that the person at whom he fired his rifle on
10/05/13 was a peace officer or public servant.
11
ARGUMENT
ISSUE I
When the defense requested a jury instruction on
self-defense in these causes at trial, it was denied by
the trial court. (RR Vol. 7, pp. 5-9). The trial judge
gave more than one reason for denial. One reason was,
“The law is also clear that if you want to assert your
right to self-defense you must first admit the elements
of the offense that has been charged. The defendant
has pled not guilty to all of the elements of the
offense as charged and therefore has not qualified
himself to claim the right to self-defense.” (RR Vol.
7, p. 9, lines 8-13)(italics added)
Appellant’s trial counsel filed in the clerk’s
record of each cause his proposed, but denied, jury
charge on self-defense. (CR 13-11-9140, pp. 43-49; CR
13-11-9158, pp. 24-30; CR 13-11-9159, pp. 24-30)
There can be a difference between denying the
elements of the offense and merely pleading “not
guilty” at the outset of a criminal trial. By pleading
12
“not guilty”, an accused activates his presumption of
innocence and puts the State to its proof beyond a
reasonable doubt. It requires the government to
produce evidence in open court and meet its burden of
proof. A defendant can then, as the trial progresses,
admit the elements of the offense, through its own or
even State’s witnesses, and offer the justification of
self-defense. By making these remarks, the trial judge
conveyed his erroneous belief that, by merely lodging a
“not guilty” plea at the trial’s outset, an accused
procedurally bars himself from even presenting a self-
defense claim at trial. This cannot be what the law
envisioned.
A jury finding of guilty is an implicit finding
rejecting the defendant’s self-defense theory. Saxton
v. State, 804 S.W.2d 910, 913 (Tex.Crim.App. 1991). If
this is true, then entering a “guilty” plea before
one’s jury immediately after the prosecutor reads aloud
the indictment is tantamount to asking that jury to
summarily reject one’s self-defense claim before any
13
evidence, from either side, has been presented. This
cannot be correct.
Self-defense is a justification for one’s actions,
which necessarily requires admission that the conduct
occurred. See Young v. State, 991 S.W.2d 835, 838
(Tex.Crim.App. 1999); MacDonald v. State, 761 S.W.2d
56, 60 (Tex.App.-Houston [14th Dist.] 1998, pet. ref’d).
To raise the issue of self-defense, appellant must
admit the committed offense and then offer self-defense
as justification. See Young at 839. This is reiterated
in Anderson v. State, 11 S.W.3d 369 (Tex.App.-Houston
[1st Dist.] 2000, pet. ref’d). Appellant finds no
language in Anderson which necessarily requires a
defendant to specifically plead “guilty” before his
jury at the trial’s outset to then be allowed to
gradually admit the elements of the offense during
trial and offer the legal justification of self-defense
through testimony or other evidence. If evidence of
same is then admitted, the accused is entitled to a
14
jury charge on same and may argue this defense or
justification to his jury.
A defendant is entitled to an instruction on any
defensive theory … 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 think about the credibility of the
evidence. Hamel v. State, 916 S.W.2d 491, 493
(Tex.Crim.App. 1996); Walker v. State, 994 S.W.2d 199,
201 (Tex.App.-Houston [1st Dist.] 1999, pet. ref’d).
For this reason, the convictions in these causes
should be reversed.
ISSUE II
In determining legal sufficiency of the evidence,
the reviewing court views all of the evidence in the
light most favorable to the verdict to determine
whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99
15
S. Ct. 2781, 61 L. Ed. 2d 560 (1979); see Vodochodsky v.
State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). In
making this determination, the reviewing court
considers all the evidence admitted, including
improperly admitted evidence. Conner v. State, 67
S.W.3d 192, 197 (Tex.Crim.App. 2001); Holberg v. State,
38 S.W.3d 137, 139 (Tex.Crim.App. 2000).
Appellant’s trial counsel made a motion for
directed verdict, when the State rested at the
guilt/innocence phase, in regard to the State’s failure
to present sufficient evidence that appellant knew
Jason McCarrell was a public servant. The trial court
denied this motion. (RR Vol. 7, p.11)
Evidence showed at trial that McCarrell kept his
service vehicle completely dark when responding to this
call, using no lighting of any sort to prevent himself
from becoming a target to appellant, who was holding a
rifle in the dark, country night. McCarrell was only
able to locate appellant by using thermal body sensor
16
equipment, which illuminated appellant to him through
appellant’s body heat.
Although appellant eventually fired his rifle at
McCarrell, McCarrell admitted at trial that he never
announced himself as a peace officer or other public
servant, and that he did not in fact announce his
presence at all, to prevent appellant from targeting
him or even knowing he was present. McCarrell did not
yell, “Stop, police!”, or otherwise give appellant any
knowledge that he was a law enforcement officer, peace
officer, or other public servant prior to appellant
firing his rifle at him. In fact, McCarrell said
nothing at all to alert appellant that he was even
there before appellant fired at him.
While appellant later hollered some anti-police
remarks and profanities as EMS personnel dressed his
wound, this was after appellant had been shot in his
arm and had realized that police officers were on the
scene. (RR Vol. 4, pp. 158-159). Accordingly, these
remarks are not evidence that appellant knew McCarrell
17
to be a public servant or peace officer when he fired
his rifle at him minutes earlier.
Amazingly, appellant made two 911 calls to law
enforcement of his own on the night in question after
being shot by law enforcement, asking for help because
“some motherfucker” had shot him in the arm. (RR SX-140
and SX-141). Appellant’s speech sounds erratic,
slurred, and distressed, due in part to his ingestion
of copious amounts of alcohol and LSD. It is clear in
SX-140 that appellant, at the time of making the call,
does not realize he had been shot by a law enforcement
officer. Appellant identifies himself without
hesitation during the call as “Charles Hill” and gives
his address as “958 CR 313 East”. (RR SX-140)
While voluntary intoxication is not a defense to
any crime in Texas, appellant’s ingestion of beer and
liquor all day, plus LSD (hallucinogen) that afternoon,
could not have helped his powers of perception and
observation by nightfall. See generally Tex.Pen.Code
Ann., sec. 8.04 (a)(Vernon 2013). This mitigates
18
against him realizing that McCarrell was a policeman
when he fired at him.
There is no evidence that appellant knew he was
shooting at a policeman, sheriff’s deputy, trooper, or
other law enforcement agent, or any kind of public
servant when he fired at Deputy McCarrell.
For these reasons, the conviction for the second
count in cause 13-11-9140 should be reversed.
PRAYER
Appellant prays that the convictions in these
causes be reversed.
Respectfully submitted,
/s/ W. A. White
W. A. (BILL) WHITE
ATTORNEY FOR APPELLANT
POB 7422, Vict., TX 77903
(361) 575-1774 voice/fax
TBN 00788659
CERTIFICATE OF SERVICE
I certify that a true and correct copy or duplicate
original of the foregoing has been provided to Robert
19
E. Bell, Jackson Co. District Attorney’s Office, 115 W.
Main Street, 2nd Flr, Edna, TX 77957 via U.S. mail, fax,
electronic delivery, or hand-delivery on this the 17th
day of June 2015.
/s/ W. A. White
W. A. White
CERTIFICATE OF COMPLIANCE
I certify that this brief contains 2,697 words.
/s/ W. A. White
W. A. White
20