Treyvon Raymond Williams v. State ( 2014 )

Opinion issued December 16, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00660-CR
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TREYVON RAYMOND WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 400th Judicial District Court
Fort Bend County, Texas
Trial Court Case No. 12-DCR-60402
MEMORANDUM OPINION
A jury convicted Treyvon R. Williams of murder and found that he used a
deadly weapon in the commission of the crime. TEX. PENAL CODE ANN. § 19.02.
The jury assessed punishment at 70 years’ confinement. Williams appeals,
contending that in light of evidence showing his actions were legally justified, the
evidence was insufficient to support a conviction for murder. He also argues that
the trial court erred by denying his proposed jury instructions on the lesser-
included offenses of manslaughter, criminally negligent homicide, and deadly
conduct.
We conclude that a rational jury could have rejected the justification
defenses. We further conclude that the proposed instructions on lesser-included
offenses were correctly refused because Williams’s evidence was that he acted
intentionally but with legal justification. Accordingly, we affirm.
Background
In the weeks prior to the charged offense, Darian Chaney and Desiray
Johnson stole a variety of items from Tevin Johnson and appellant Treyvon
Williams. Tevin and appellant retaliated by stealing items from Darian and
Desiray.
On the day of the offense, Darian, Desiray, complainant Ron “Rico”
Chaney, and several other people searched for appellant to recover the stolen
items. Darian, Desiray, and Rico went to the home of Angela Jones, and appellant
came out of the house, indicating that he wanted to fight. The group decided there
would be a one-on-one fight in which appellant was allowed to choose his
opponent; he chose to fight Rico. By this time, multiple carloads of people had
arrived at the house, and a crowd had formed around the yard.
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Neither appellant nor Rico struck each other during the fight, and the two
separated quickly when another fight broke out between Desiray and another
woman, Andromida Norris. Soon, the fight between Desiray and Andromida ended
as Rico walked towards the women to break them up. At the same time, appellant
walked to a green Lexus, retrieved a gun, and fired three or four shots in the
direction of Rico and Desiray. One of the bullets struck Rico in the head, killing
him. Appellant fled in the green Lexus.
Later that night, after discussion with his mother and counseling with her
pastor, appellant returned to the scene to turn himself in to the police. After he was
taken to an interview room by the police and read his Miranda warnings, appellant
gave a video-recorded statement.
In the recorded statement, appellant initially stated that he believed someone
else at the scene had an assault rifle and that he had accidentally shot Rico while
trying to shoot the other individual. Later in the interview, appellant stated that he
shot Rico because he thought Rico intended to hurt Andromida, who was fighting
with Desiray in the yard.
Appellant was charged with murder. Following trial, he was convicted and
sentenced to 70 years’ confinement.
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Analysis
On appeal, appellant challenges the sufficiency of the evidence supporting
his conviction and the trial court’s refusal to charge the jury on lesser-included
offenses.
I. Sufficiency of the evidence
Appellant argues in his first issue that the evidence at trial was legally
insufficient to support his conviction for murder because a rational factfinder could
not have properly rejected his theories of self-defense.
When evaluating the legal sufficiency of the evidence, we view the evidence
in the light most favorable to the verdict and determine whether any rational trier
of fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We must defer to
the responsibility of the factfinder to fairly resolve conflicts in the testimony, to
weigh evidence, and to draw reasonable inferences from the facts. See Jackson,
443 U.S. at 319, 99 S. Ct. at 2789; Williams, 235 S.W.3d at 750. In so doing, we
may not reevaluate the weight and credibility of the record evidence and thereby
substitute our own judgment for that of the factfinder. Williams, 235 S.W.3d at
750. This standard applies equally to circumstantial and direct evidence. Laster v.
State, 275 S.W.3d 512, 517–18 (Tex. Crim. App. 2009).
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A person commits the offense of murder if he intentionally or knowingly
causes the death of an individual, or intends to cause serious bodily injury and
commits an act clearly dangerous to human life that causes the death of an
individual. TEX. PENAL CODE ANN. § 19.02. “[A] person is justified in using force
against another when and to the degree the actor reasonably believes force is
immediately necessary to protect the actor against the other’s use or attempted use
of unlawful force.” Id. § 9.31(a). Deadly force is justified to protect the actor
against another’s use or attempted use of unlawful deadly force and to prevent
another’s imminent commission of murder, kidnapping, sexual assault, or robbery.
Id. § 9.32(a). A person is justified in using deadly force against another to protect a
third person if, under the circumstances the actor reasonably believes them to be,
the actor would be justified in using force against the other under section 9.32 to
protect himself against the unlawful deadly force he reasonably believes to be
threatening the third person, and the actor reasonably believes that his intervention
is immediately necessary to protect the third person. Id. § 9.33.
The defendant bears the initial burden to produce evidence supporting a
justification defense. Zuliani v. State, 97 S.W.3d 589, 594–95 (Tex. Crim. App.
2003). Once the defendant produces some evidence, the State then bears the
burden of persuasion to disprove the raised defense. Id. The burden of persuasion
does not require the State to produce evidence; it requires only that it prove its case
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beyond a reasonable doubt. Id.; Hernandez v. State, 309 S.W.3d 661, 665 (Tex.
App.—Houston [14th Dist.] 2010, pet. ref’d). Thus, to convict a defendant of
murder after he has raised the issue of self-defense, the State is required to prove
the elements of the offense beyond a reasonable doubt and to persuade the jury
beyond a reasonable doubt that the defendant did not kill in self-defense. Zuliani,
97 S.W.3d at 594; McClesky v. State, 224 S.W.3d 405, 409 (Tex. App.—Houston
[1st Dist.] 2006, pet. ref’d).
Appellant contends that the jury could not have found against him beyond a
reasonable doubt on the issues of use of deadly force in defense of himself and in
defense of a third person. See TEX. PENAL CODE ANN. §§ 9.32, 9.33. Appellant
asserts that his own statements that he saw somebody in the crowd with an assault
rifle, coupled with other witness testimony that Rico, Desiray, and Darian were at
the house to “jump” him, justify his acts as deadly force in defense of himself. He
further argues that a jury could not have properly rejected evidence that his use of
deadly force was justified to protect Andromida, who testified that when the shots
were fired, Rico and Darian were moving toward her to help Desiray because she
had her on the ground. Andromida further stated that she saw an unknown person
take something black from Rico’s person after he was shot, which appellant
contends is evidence that Rico had a gun. Appellant also relies on other bystander
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testimony indicating that Rico was moving toward Andromida when the shots were
fired.
The issue of self-defense is a fact issue to be determined by the jury, which
is free to accept or reject the defensive issue. Saxton v. State, 804 S.W.2d 910,
913–14 (Tex. Crim. App. 1991). When a jury finds the defendant guilty, there is an
implicit finding against self-defense. Id. at 914. Although there is some evidence
that appellant reasonably believed that deadly force was immediately necessary to
protect himself or Andromida, other evidence demonstrates that a rational jury
could have been persuaded to the contrary beyond a reasonable doubt. Notably, no
weapon was found on Rico’s person after he was shot, and Andromida testified
that the black object taken from his body “could have been a shoe for all I know.”
Nor did any witness corroborate appellant’s statement that an unknown person at
the scene was carrying an assault rifle. Furthermore, as the exclusive judge of the
facts, the jury was entitled to accept or reject defensive evidence. Id.Viewing the evidence in the light most favorable to the verdict, a rational
factfinder could have found beyond a reasonable doubt against appellant on the
issues of self-defense and defense of a third person. See Saxton, 804 S.W.2d at
914; Williams v. State, 226 S.W.3d 611, 617 (Tex. App.—Houston [1st Dist.]
2007, no pet.). We overrule appellant’s challenge to the sufficiency of the
evidence.
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II. Lesser-included offense instructions
In his second issue, appellant asserts that the trial court abused its discretion
and committed reversible error when it refused to instruct the jury on the lesser-
included offenses of manslaughter, criminally negligent homicide, and deadly
conduct.
We employ a two-pronged test to determine whether a defendant is entitled
to an instruction on a lesser-included offense. See Cavazos v. State, 382 S.W.3d
377, 382 (Tex. Crim. App. 2012). The first step is a question of law, in which we
compare the elements alleged in the indictment with the elements of the lesser
offense to determine “if the proof necessary to establish the charged offense also
includes the lesser offense.” Id. The Code of Criminal Procedure states that an
offense is a lesser-included offense if:
(1) it is established by proof of the same or less than all the
facts required to establish the commission of the offense
charged;
(2) it differs from the offense charged only in the respect that
a less serious injury or risk of injury to the same person,
property, or public interest suffices to establish its
commission;
(3) it differs from the offense charged only in the respect that
a less culpable mental state suffices to establish its
commission; or
(4) it consists of an attempt to commit the offense charged or
an otherwise included offense.
TEX. CODE CRIM. PROC. art. 37.09.
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The second step requires us to consider whether there is some evidence that
would permit a rational jury to find that, if the appellant is guilty, he is guilty only
of the lesser offense. Cavazos, 382 S.W.3d at 383. The second step is a question of
fact and is based on the evidence presented at trial. Id. Thus, a defendant is entitled
to an instruction on a lesser-included offense “if some evidence from any source
raises a fact issue on whether he is guilty of only the lesser, regardless of whether
the evidence is weak, impeached, or contradicted.” Id. “Although this threshold
showing is low, ‘it is not enough that the jury may disbelieve crucial evidence
pertaining to the greater offense, but rather, there must be some evidence directly
germane to the lesser-included offense for the finder of fact to consider before an
instruction on a lesser-included offense is warranted.’” Sweed v. State, 351 S.W.3d
63, 68 (Tex. Crim. App. 2011) (quoting Skinner v. State, 956 S.W.2d 532, 543
(Tex. Crim. App. 1997)). The standard may be satisfied “if some evidence refutes
or negates other evidence establishing the greater offense or if the evidence
presented is subject to different interpretations.” Id.Here, the indictment alleged the elements of murder under all three
definitions in the Penal Code:
(b) A person commits an offense if he:
(1) intentionally or knowingly causes the death of an
individual;
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(2) intends to cause serious bodily injury and commits
an act clearly dangerous to human life that causes
the death of an individual; or
(3) commits or attempts to commit a felony, other than
manslaughter, and in the course of and in
furtherance of the commission or attempt, or in
immediate flight from the commission or attempt,
he commits or attempts to commit an act clearly
dangerous to human life that causes the death of an
individual.
TEX. PENAL CODE § 19.02(b).
a. Manslaughter and criminally negligent homicide.
Appellant asserts that it was error for the trial court to refuse to instruct the
jury on manslaughter and criminally negligent homicide. Both manslaughter and
criminally negligent homicide are lesser-included offenses of murder. Martinez v.
State, 16 S.W.3d 845, 847 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)
(manslaughter); Miller v. State, 177 S.W.3d 177, 182 (Tex. App.—Houston [1st
Dist.] 2005, pet. ref’d) (criminally negligent homicide). But a defendant’s
testimony that he acted in self-defense precludes a finding that there is some
evidence in the record that appellant is guilty only of manslaughter, because a fact
finder cannot find both that a defendant acted recklessly and that he acted in self-
defense. Martinez, 16 S.W.3d at 848; see also Alonzo v. State, 353 S.W.3d 778,
782 (Tex. Crim. App. 2011) (noting precedents in which “[t]he very reason for
denying the manslaughter charges was that the defendants’ evidence was that in
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committing the homicide they acted intentionally in self-defense, not merely
recklessly”).
The record also lacks evidence that appellant is only guilty of criminally
negligent homicide. That offense requires that a person act with criminal
negligence, which involves “inattentive risk creation, that is, the actor ought to be
aware of the risk surrounding his conduct or the results thereof.” Lugo v. State, 667
S.W.2d 144, 147–48 (Tex. Crim. App. 1984); see also TEX. PENAL CODE § 6.03(d)
(defining criminal negligence); id. § 19.05 (offense of criminally negligent
homicide). Thus, for a defendant to be entitled to a jury charge on criminally
negligent homicide, the record must contain “some evidence” that the defendant
did not intend the resulting death or know that it was reasonably certain to occur.
Miller, 177 S.W.3d at 182. If such evidence is present, the record must contain
evidence showing that the defendant was unaware of the risk. Id. Here, there is no
evidence in the record that appellant did not intend to cause death or that he did not
know it was reasonably certain to occur when he fired three or four bullets into a
crowd. Nor does the record contain evidence that appellant was unaware of that
risk. To the contrary, intentional conduct was implicit in appellant’s self-defense
testimony. Cf. Martinez, 16 S.W.3d at 848.
b. Deadly conduct.
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Finally, appellant asserts that it was error for the court to refuse to instruct
the jury on the offense of deadly conduct. The offense of deadly conduct can be
committed in two ways. A person commits the misdemeanor version of the offense
if he recklessly engages in conduct that places another in imminent danger of
serious bodily injury. TEX. PENAL CODE § 22.05(a), (e). The felony version of
deadly conduct occurs if a person knowingly discharges a firearm at or in the
direction of one or more individuals. Id. § 22.05(b)(1). Thus, under these facts,
felony deadly conduct satisfies the first prong of the lesser-included test because it
was included in the proof necessary to establish the offense of murder. See TEX.
CODE CRIM. PROC. art. 37.09(1); Ortiz v. State, 144 S.W.3d 225, 233–34 (Tex.
App.—Houston [14th Dist.] 2004, pet. ref’d).
Appellant requested an instruction that described felony deadly conduct. On
appeal, however, he advances no argument to support that instruction. Instead, he
merely asserts, without reference to any supporting legal authority, that “when
Appellant shot the gun at Rico and/or Darian, his act was reckless.” A legal
argument that an instruction on misdemeanor deadly conduct should have been
given does not support reversal on appeal when the request at trial asked for an
instruction on felony deadly conduct. See TEX. R. APP. P. 33.1(a), 38.1(i); Green v.
State, No. 14-07-00827-CR, 2009 WL 1875572, at *10 (Tex. App.—Houston
[14th Dist.] Jun. 30, 2009, pet. ref’d) (mem. op., not designated for publication)
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(finding briefing waiver when appellant argued for a felony deadly conduct
instruction based on evidence that only related to the misdemeanor offense);
Morris v. State, No. 14-06-00564-CR, 2007 WL 2089290, at *4 (Tex. App.—
Houston [14th Dist.] Jul. 24, 2007, no pet.) (mem. op., not designated for
publication) (determining that request for lesser-included instruction of
misdemeanor deadly conduct was inadequate to preserve error on failure to give
instruction on felony deadly conduct).
* * *
Because appellant has failed to establish that he was entitled to a lesser-
included offense instruction for manslaughter, criminal negligence, or deadly
conduct, we overrule his second issue.
Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Justices Massengale, Brown, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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