Charlie William Canida v. State ( 2007 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-06-00205-CR ______________________________



CHARLIE CANIDA, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 6th Judicial District Court Lamar County, Texas Trial Court No. 20151

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

   Charlie Canida appeals from his jury conviction of possession of a controlled substance under one gram. ⁽¹⁾ See Tex. Health & Safety Code Ann. § 481.115 (Vernon 2003). The trial court sentenced Canida to confinement for one year at a state-jail facility. Canida was represented by appointed counsel at trial and by different appointed counsel on appeal. Canida's attorney has filed an appellate brief in which he concludes that, after a review of the record and the related law, the appeal is frivolous and without merit.

The appeal in this case concerns the arrest of Canida for possession of less than one gram of methamphetamine. Police were at a property called the "Fish Camp" (this group of buildings, travel trailers, and a boat ramp is used by "squatters" on land owned by either Kiamichi Railroad or by the State of Texas) to serve an arrest warrant on one of the occupants of the camp. While the police were there, Canida (who used the camp occasionally, and who was an "owner" of a travel trailer there) drove by, slowed, but did not stop. The police followed Canida and stopped him for a traffic violation. Canida gave permission to search his pickup truck. The police found less than one gram of methamphetamine in the pocket of the door of Canida's truck.

Appellate counsel summarizes the trial in his brief and states that he has studied the record and finds no error preserved for appeal that could be successfully argued. The brief contains a professional evaluation of the record and advances three arguable grounds for review. This meets the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).

Counsel mailed a copy of the brief to Canida on January 23, 2007, informing Canida of his right to examine the entire appellate record and to file a pro se response. Counsel simultaneously filed a motion with this Court seeking to withdraw as counsel in this appeal. Canida has not filed a response, nor has he requested an extension of time in which to file such a response.

We have reviewed the possible issues raised by counsel in his appellate brief, and we agree with his assessment that no reversible error exists. Our review of the record has not revealed other error. ⁽²⁾  

We affirm the judgment of the trial court.

Jack Carter

Justice

Date Submitted: April 2, 2007

Date Decided: April 3, 2007

Do Not Publish

1. The offense addressed in this opinion was tried together with an offense for possession of a controlled substance of four to 200 grams of methamphetamine. That judgment is being appealed separately, and those issues are addressed in our opinion issued in cause number 06-06-00204-CR.

2. Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel's request to withdraw from further representation of Canida in this case. No substitute counsel will be appointed. Should Canida wish to seek further review of this case by the Texas Court of Criminal Appeals, Canida must either retain an attorney to file a petition for discretionary review or he must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this Court. See Tex. R. App. P. 68.2. Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case. See Tex. R. App. P. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure.

of self-defense, including the duty to retreat. The court, however, qualified this defense by also instructing the jury on provocation:

You are further instructed as part of the law of this case, and as a qualification of the law on self-defense, that the use of force by a defendant against another is not justified if the defendant provoked the other's use or attempted use of unlawful force, unless

(a) the defendant abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and

(b) the other person, nevertheless, continues or attempts to use unlawful force against the defendant.

The charge then instructed the jury that, if it found beyond a reasonable doubt that Flores committed some act or used some language, or a combination of both, with the intent "to produce the occasion for shooting Damon Barlow," and if such act or words of Flores were reasonably calculated to, and did "provoke a difficulty" wherein Barlow attacked Flores with deadly force or reasonably appeared to Flores to "so attack [Flores] or to be attempting to so attack [Flores]," and Flores then shot Barlow "in pursuance of his original design," the jury should convict Flores. It has been established that this charge on provocation was error. Flores, 194 S.W.3d at 38, vacated & remanded on other grounds, 224 S.W.3d 212.

Where a trial court's charge to the jury contains error, we should analyze the error for harm under the standard of Article 36.19. See Tex. Code Crim. Proc. Ann. art. 36.19. An appellate court will not reverse a conviction or sentence on the basis of jury charge error "unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears that the defendant has not had a fair and impartial trial." Tex. Code Crim. Proc. Ann. art. 36.19. In Almanza, ⁽⁵⁾ the Texas Court of Criminal Appeals concluded that this language created two separate harm-analysis standards: the first to be used when a timely objection is made to the charge; the second to be used when no such objection appears in the record. The first standard dictates that reversal should occur if the defendant made a timely objection and if there is some harm to the defendant from the error. Id. at 171. Properly preserved jury-charge error requires reversal unless it is harmless.

Here, because Flores timely objected to the trial court's inclusion of an instruction on the language of provocation in the jury charge, his conviction must be reversed if he can show any degree of harm. In making this determination, "the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Id.; see also Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000). The burden of proof lies with the appellant to persuade the reviewing court that he or she suffered some actual harm as a consequence of the charging error, and if he or she is unable to do so, the error will not result in a reversal of the conviction. Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994).

"[T]he presence of any harm, regardless of degree, which results from preserved charging error, is sufficient to require a reversal of the conviction. Cases involving preserved charging error will be affirmed only if no harm has occurred." Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) (no harm where no definition of reasonable belief); see also Cathey v. State, 992 S.W.2d 460, 466 (Tex. Crim. App. 1999) (failure to instruct jury on accomplice-witness rule harmless error where sufficient evidence to convict defendant as principle).

On the other hand, the appellant must demonstrate actual, as opposed to possible, harm. Medina v. State, 7 S.W.3d 633 (Tex. Crim. App. 1999). Significant evidence militating against a defense-requested instruction or finding can render an error harmless. Id. at 642-43.

The State began to attack any self-defense theory in opening argument, telling the jury, "you will see that this is not self-defense. You will see that the defendant opened fire with an assault rifle on a car full of people on a freeway that even he admits had innocent people driving on it." The State argued that Flores had arranged the "drug deal" on the night of the killing, based on what had allegedly happened two weeks before, to retaliate against Barlow. Flores argued self-defense in his closing argument. In the State's closing rebuttal, it was urged that Flores had set up the second "buy" in order to retaliate against Barlow. "[Flores] was going there to show everybody that he wasn't going to put up with being robbed. That he was going to retaliate and show everybody that he was tough." Near the end of the State's argument, it returned to Flores' "duty to retreat" and that he could not provoke the acts against which he claimed to be defending himself. In the closing rebuttal, covering about ten pages of argument, the State made at least four references to Flores having planned the encounter and purchasing the gun.

Under the unchallenged instruction on self-defense, the jury was instructed to reject Flores' claim of self-defense if it found that "a reasonable person in [Flores'] situation would have retreated before using deadly force." Put another way, the jury could not have found that Flores acted in self-defense if it concluded that a reasonable person--chasing a vehicle down an urban highway and being shot at from the pursued vehicle--would have retreated or broken off the pursuit before using deadly force in self-defense.

The erroneously given provocation instruction was, by its terms, a limitation on the self-defense instruction. Our job is to determine whether there was any harm, that is, whether, in the absence of the provocation instruction, there would have been any chance that the jury would have found that Flores acted in self-defense. To find that Flores acted in self-defense, the jury would need to be convinced of two things: (1) that, while the Flores vehicle chased the Barlow vehicle, someone in the Barlow vehicle shot at the Flores vehicle causing Flores to reasonably believe that deadly force was immediately necessary to protect himself and (2) that the situation was such that a reasonable person in Flores' situation would not have retreated before using deadly force in self-defense. Flores has not persuaded us that either question might have been answered in his favor. Therefore, he has not shown harm from the provocation instruction.

Flores initiated the encounter in question. He initially set up the false drug transaction with Barlow after having purchased an assault weapon which he brought to that meeting. He chased Barlow down the urban expressway at approximately 10:00 p.m. There was testimony by a passenger in the Barlow vehicle that no shot was fired from the Barlow vehicle and that there were not even any guns in that vehicle. The only contrary testimony came from Flores, who claimed shots came first from the Barlow vehicle and who also claimed that he neither buys nor sells drugs. The State also pointed out, on cross-examination of Flores, that, when he spoke to police immediately after the incident, he said only that their car had been run off the road and said nothing about any shots coming from the other car. There were bullet holes in the Barlow vehicle, but none in the Flores vehicle. The bullet holes in the Barlow vehicle were both in the vehicle's rear and side. The only people shot were in the Barlow vehicle. Flores came into the encounter having every reason to be angry with Barlow; in fact, Flores had taken numerous steps calculated to respond to, even retaliate for, Barlow's theft of drugs from him two weeks earlier. The chase happened on a Houston expressway, and Flores was the pursuer. Nothing suggested that any conditions, such as heavy traffic, would have hindered Flores from stopping, slowing, or exiting the freeway entirely; thus, nothing demonstrated that Flores lacked a reasonable avenue of retreat should he have had any inclination to break off the chase. Nothing suggested that Flores was essentially trapped into using deadly force to defend himself. No evidence or inference suggests that a reasonable person in Flores' situation would not have retreated.

On this record, we cannot imagine the jury finding that Flores acted in self-defense, even without the provocation instruction. Therefore, we conclude the provocation instruction caused no harm.

We affirm the judgment of the trial court.

Josh R. Morriss, III

Chief Justice

Date Submitted: June 22, 2007

Date Decided: January 3, 2008

Do Not Publish

1. The State's requested instruction on provocation was given immediately following, and as a qualification to, Flores' requested instruction on self-defense and instructed the jury, in essence, that no self-defense by Flores was authorized if he had intentionally provoked the behavior he was allegedly defending against, unless Flores abandoned the encounter or clearly communicated his intent to do so and the other party nonetheless continued or attempted to use unlawful force against Flores.

2. Flores v. State, 224 S.W.3d 212 (Tex. Crim. App. 2007).

3. In our earlier opinion, we analyzed this error using the standard of Rule 44.2(b) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 44.2(b). The Texas Court of Criminal Appeals instructed us this was the wrong standard. Rather, we should have applied Article 36.19 of the Texas Code of Criminal Procedure.

4. This case has been transferred to this Court as part of the Texas Supreme Court's docket equalization program.

5. 686 S.W.2d at 171.