Christopher Tyrone Johnson v. State ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00158-CR
CHRISTOPHER TYRONE APPELLANT
JOHNSON
V.
THE STATE OF TEXAS STATE
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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2006-1436-A
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OPINION
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Introduction
Appellant Christopher Tyrone Johnson was tried for murder and convicted
of the lesser-included offense of manslaughter. The jury assessed his
punishment at five years’ confinement, and the trial court sentenced him
accordingly. In two issues, Appellant contends that the evidence is insufficient to
sustain the verdict and that the trial court erred in its charge to the jury. We
overrule Appellant’s first issue, sustain his second, reverse and remand.
Facts
Appellant and the decedent, Lemontrez Dewan Lewis (Dewan), grew up
together and considered each other best friends. Dewan’s cousin, Ahmad
Rashad Lewis (Rashad), is Appellant’s half-brother. In 2005, Appellant was
diagnosed with multiple sclerosis (MS). The disease progressed very quickly.
Appellant had been very athletic and had played football in high school. By
2006, his condition had deteriorated to the point that he was using either
crutches with an arm brace or a walker and would require assistance from his
girlfriend Linda White and her daughter. He testified,
[T]he way I would get up the stairs is at the time I had what is called
a walker, and I would go up one step, Linda White would pick up one
leg and move it up, and I would hold onto the bars. I would hold
onto the side railings, and she and her daughter would move my
legs up the step one at a time. The daughter would have one foot,
and she would have one foot. She was my legs for me, it would be
the[m] moving me forward.
When asked whether he had use of his arms at that time, Appellant
testified, “Yes, I had very limited use, but I did.”
On February 18, 2006, Appellant was living with Linda on the third floor of
a North Dallas apartment. Dewan, who was working as a long-haul truck driver
at the time, was coming through Dallas on a trip and wanted to stop by and see
Appellant and Rashad. Appellant, Linda, Dewan, and Rashad visited together at
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the apartment. Their conversation was cordial for some time, but things began to
change when Linda, and later Rashad and Dewan, started ridiculing Appellant
and his disease by calling him names. Appellant took offense and asked Dewan
to leave, who then replied, “Man, you can’t make me go nowhere. You can’t
make me leave.” Appellant put his hand on the table and told Dewan he could
make him leave.
The argument escalated to the point at which Dewan threatened Appellant.
Appellant testified that while they were still sitting at the table, Dewan grabbed
Appellant’s shirt collar, and Appellant jerked Dewan’s hand away to free himself,
got up, and walked into the kitchen, while asking Dewan to leave at least three
times. Dewan stood up, kicked the wall, and then headed into the kitchen after
Appellant.
When Appellant got to the kitchen, he grabbed a knife. Dewan followed
and Appellant stabbed him in the chest. Dewan asked Rashad to take him to the
hospital and then collapsed. Paramedics arrived and Dewan died on the way to
the hospital. When police arrived at the apartment, Appellant confessed that he
had stabbed Dewan, and Appellant was later charged with murder.
Evidence of Recklessness is Sufficient
In his first issue, Appellant argues that the evidence is insufficient to show
he acted recklessly in stabbing Dewan. Section 19.04 of the Texas Penal Code
provides that a person commits manslaughter if he recklessly causes the death
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of an individual. Tex. Penal Code Ann. § 19.04 (West 2011). Recklessly is
defined as follows:
A person acts recklessly, or is reckless, with respect to
circumstances surrounding his conduct or the result of his conduct
when he is aware of but consciously disregards a substantial and
unjustifiable risk that the circumstances exist or the result will occur.
The risk must be of such a nature and degree that its disregard
constitutes a gross deviation from the standard of care that an
ordinary person would exercise under all the circumstances as
viewed from the actor’s standpoint.
Id. § 6.03(c) (West 2011).
Appellant argues that it was unreasonable for the jury to infer that
Appellant had acted recklessly because no evidence was presented to support
an inference that Appellant foresaw the risk and then made a conscious decision
to ignore it. Appellant argues that, rather than he, it was Dewan who, seeing the
knife and recognizing the inherent danger, disregarded that danger and lunged
toward him for the knife.
Appellant’s half-brother Rashad described the stabbing:
By that time, Dewan had walked up on the counter, and they
was still talking.
I don’t – my brother picked up the knife, and he didn’t lunge at
Dewan. He – it was a simultaneous – it was – when my brother
picked up the knife, he was holding it like so, and when he was
holding it, he was talking to Dewan, and Dewan was talking, like,
what you going to do with the knife?
....
Dewan reached for the knife and simultaneous, when he
reached for the knife, my brother extended his arm and it happened.
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Appellant argues that his picking up the knife did create a risk but that it
was not “substantial” nor was it “unjustifiable.” He argues that when a
reasonable person who does not have the physical ability to run away is pursued
by an enraged person who is substantially bigger than he and that reasonable
person cannot physically leave, the person does what he can to defend himself.
Appellant’s picking up a knife, he argues, was not a “substantial and unjustifiable”
risk for purposes of finding Appellant guilty of acting recklessly, and
consequently, the evidence is insufficient to support the conviction. Nor,
Appellant argues, could he have consciously disregarded the risk because the
act of picking up the knife was in self-defense, to protect himself in a situation
with an enraged man who was much bigger and in better physical condition than
Appellant.
The State argues that Appellant asks us to view the evidence in a light
most favorable toward Appellant, rather than employing the appropriate standard
of appellate review which is to review the evidence in the light most favorable to
the verdict. The State argues that instead of showing how the evidence of
recklessness is insufficient, Appellant merely restates his claims of self-defense.
The State points out that the jury had already rejected Appellant’s claim of self-
defense.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
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determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S.Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768
(Tex. Crim. App. 2013); Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.
2012). This standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.
at 2789; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App. 2011).
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Winfrey, 393
S.W.3d at 768; Wise, 364 S.W.3d at 903. Thus, when performing an evidentiary
sufficiency review, we may not re-evaluate the weight and credibility of the
evidence and substitute our judgment for that of the factfinder. Isassi v. State,
330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Instead, we determine whether the
necessary inferences are reasonable based upon the cumulative force of the
evidence when viewed in the light most favorable to the verdict. Sorrells v.
State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011). We must presume that the
factfinder resolved any conflicting inferences in favor of the verdict and defer to
that resolution. Jackson, 443 U.S. at 326, 99 S.Ct. at 2793; Wise, 364 S.W.3d at
903. The standard of review is the same for direct and circumstantial evidence
cases; circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor. Isassi, 330 S.W.3d at 638; Hooper v. State, 214 S.W.3d 9,
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13 (Tex. Crim. App. 2007). In reviewing the sufficiency of the evidence, “the
appellate court must look at all the evidence, whether properly or improperly
admitted.” Miles v. State, 918 S.W.2d 511, 512 (Tex. Crim. App. 1996),
cert.denied, 511 U.S. 1100 (1994) (quoting Alexander v. State, 866 S.W.2d 1, 3
(Tex. Crim. App. 1993)).
As we have previously explained, circumstantial evidence is generally
needed to prove a culpable mental state, and because the culpable mental state
generally must be inferred from the circumstances surrounding the offense, the
trier of fact may infer the defendant’s culpable mental state from relevant
evidence tending to prove its existence. Davis v. State, 955 S.W.2d 340, 349
(Tex. App.––Fort Worth 1997, pet. ref’d) (citing Hernandez v. State, 819 S.W.2d
806, 810 (Tex. Crim. App. 1991), cert. denied, 504 U.S. 974 (1992)); see Dillon v.
State, 574 S.W.2d 92, 94 (Tex. Crim. App. [Panel Op.] 1978).
The culpable mental state of “reckless” is satisfied by evidence indicating
that the defendant consciously disregarded a known, substantial, and
unjustifiable risk that serious bodily injury would occur––a risk that if disregarded
constitutes a gross deviation from the standard of care an ordinary person would
exercise under the same circumstances. Davis, 955 S.W.2d at 348–49; see
Hayes v. State, 728 S.W.2d 804, 809 (Tex. Crim. App. 1987) (op. on reh’g).
Reckless conduct “involves conscious risk creation, that is, [that] the actor is
aware of the risk surrounding his conduct or the results thereof, but consciously
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disregards that risk.” Davis, 955 S.W.2d at 349 (quoting Aliff v. State, 627
S.W.2d 166, 171 (Tex. Crim. App. 1982)).
Appellant admitted that he was upset and angry about the names he was
being called that evening and felt that Dewan, Rashad, and White were ganging
up on him. Appellant picked up a kitchen knife and pointed it toward Dewan. His
expressed intent was to protect himself. The jury reasonably could have inferred
from the circumstances that Appellant chose a sharp knife or was aware that the
knife he had chosen was sharp enough to pierce Dewan’s flesh. Appellant
repeatedly denied that he had intended to kill Dewan. The jury could have
believed he pointed the sharp knife toward Dewan but with no intent to kill him.
The island and the kitchen sink were between Appellant and Dewan when
the stabbing occurred. Although Appellant suggested Dewan walked into the
knife, he later admitted he had moved toward Dewan “a tad bit” with the knife.
As Appellant moved toward Dewan “a tad bit” with the knife, his work ID badge
fell into the sink, indicating to a greater or lesser extent that Appellant had lunged
over the sink with the knife to stab Dewan. The autopsy revealed that the knife
penetrated Dewan’s clothing, skin, his muscle, fat, and then through the fifth rib,
which, as Dr. Barnard testified, is a hard object. The knife cut directly into
Dewan’s heart. The jury reasonably could have concluded that Dewan’s injuries
were inconsistent with his having walked into the knife. Additionally, the jury
reasonably could have concluded that Appellant was aware of the inherent
danger of moving toward Dewan with a sharp knife pointed toward Dewan while
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Dewan was moving toward Appellant when both men were angry and very
emotional. And based on the record as a whole, the jury would be warranted in
concluding that Appellant was aware he risked causing serious injury to Dewan
and consciously disregarded that risk and that his actions constituted a gross
deviation from the standard of care that an ordinary person would exercise under
all the circumstances as viewed from Appellant’s standpoint.
We hold that the evidence is sufficient to support the jury’s verdict and we
therefore overrule Appellant’s first issue.
Properly Objected-to Charge Error was Harmful
Although Appellant frames his second issue as inaccurately instructing the
jury on the law relating to the lesser-included offense of manslaughter, the
substance of his entire argument refers to the improper self-defense instruction,
as does the State’s response. We shall, therefore, consider his argument
regarding alleged error in the self-defense instruction.
An appellate court must first decide whether there is error in the jury
charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Posey v.
State, 966 S.W.2d 57, 61 (Tex. Crim. App. 1998). If error exists and Appellant
objected to the error at trial, we must determine whether the error caused “some
harm,” requiring reversal. Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim.
App. 1994); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op.
on reh’g).
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The second and third pages of the charge instructed the jury on self-
defense as follows:
Now, if you find from the evidence beyond a reasonable doubt that
on the occasion in question the defendant did stab the complainant,
Lemontrez Lewis but you further find from the evidence that viewed from
the standpoint of the defendant at the time, from the words or conduct, or
both, of Lemontrez Lewis it reasonably appeared to the defendant that his
person was in danger of bodily injury and there was created in his mind a
reasonable expectation of fear of bodily injury from the use of unlawful
force at the hands of Lemontrez Lewis and that acting under such
apprehension and reasonably believing that the use of force on his part
was immediately necessary to protect himself against Lemontrez Lewis’s
use or attempted use of unlawful force, the defendant stabbed Lemontrez
Lewis with a knife to defend himself, then you will acquit the defendant and
say by your verdict not guilty.
Section 2.03(d) of the penal code provides, “If the issue of the existence of
a defense is submitted to the jury, the court shall charge that a reasonable doubt
on the issue requires that the defendant be acquitted.” Tex. Penal Code Ann.
§ 2.03(d) (West 2011). Self-defense is a defense. Id. § 9.31. The law is well
established that “[t]he jury must be instructed to acquit the defendant if they
believe that he was acting in self-defense or have a reasonable doubt thereof.”
Barrera v. State, 982 S.W.2d 415, 416 (Tex. Crim. App. 1998) (noting that court
of appeals “properly concluded that the failure to apply the law of self-defense to
the facts of the case and to instruct the jury to acquit if they held a reasonable
doubt on self-defense was error”); Russell v. State, 834 S.W.2d 79, 82 (Tex.
App.––Dallas 1992, pet. ref’d). We hold that the trial court erred by submitting a
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charge that failed to instruct the jury on self-defense as required by section
2.03(d).
We also hold that Appellant preserved error. Our review of the record
shows that the proposed charge originally contained the phrase “or you have a
reasonable doubt thereof” such that had the proposed charge been issued, the
section quoted above would have read as follows,
Now, if you find from the evidence beyond a reasonable doubt that
on the occasion in question the defendant did stab the complainant,
Lemontrez Lewis but you further find from the evidence that viewed from
the standpoint of the defendant at the time, or you have a reasonable
doubt thereof, from the words or conduct, or both, of Lemontrez Lewis it
reasonably appeared to the defendant that his person was in danger of
bodily injury [ . . . ] then you will acquit the defendant and say by your
verdict not guilty. [Emphasis added]
The State, however, objected to the phrase that we have italicized above,
and the trial court, over Appellant’s objection, struck it from the charge.
The record also indicates that the proposed charge originally contained the
following passage, which the trial court also struck on the State’s objection, and
over the objection of Appellant: “If you have a reasonable doubt as to whether or
not the defendant was acting in self-defense on said occasion and under said
circumstances, then you should give the defendant the benefit of that doubt.”
Because Appellant timely objected to error in the jury charge, we must
reverse the trial court’s judgment if the error in the charge was calculated to
injure Appellant’s rights. Almanza, 686 S.W.2d at 171. We examine the entire
record to determine whether Appellant suffered some harm as a result of this
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error. Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986). The actual
degree of harm must be assessed in light of (1) the entire jury charge; (2) the
state of the evidence, including the contested issues and weight of probative
evidence; (3) the argument of counsel; and (4) any other information revealed by
the record as a whole. Almanza, 686 S.W.2d at 171.
Appellant testified that he had told Dewan to leave more than once, and
Dewan kicked the wall and came toward the kitchen where Appellant had gone
on his walker. Appellant also testified that Dewan was so angry that his eyes
were red and that he was coming toward him. Appellant further testified that he
went into the kitchen and that he knew he had to get Dewan to leave. Appellant
grabbed the knife to protect himself because Dewan was coming toward him and
because Appellant did not know what was going on in Dewan’s mind. Appellant
described the scene as Dewan’s walking into the knife. Appellant testified, “I
didn’t intend to kill my cousin. . . . I was trying to defend myself, trying to protect
myself.”
But Appellant also testified that he had to do something because everyone
was laughing at him because he could not walk and sometimes fell down.
Dewan said that Appellant was “fat” and “acted like a handicapped little bitch.”
Appellant’s walker had a handbrake, and Dewan was asking him how he was
going to walk if they hit the brakes, saying, “You going to fall to the floor.” Dewan
grabbed for Appellant’s shirt, and Appellant knew he had to get Dewan to leave.
Dewan said, “Look here, it’s not like when we were kids, I’m a man, I done grew
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up, I got bigger than you was. I got bigger than you are.” When Appellant tried
to distance himself from Dewan while he told him to leave and Dewan said
Appellant could not make him, Dewan followed Appellant to the kitchen.
Appellant testified, “He was steadily cussing at me and coming toward me, [and] I
didn’t know what he was going to do. I didn’t know what he was going to try to
do.”
Although there was sufficient evidence to raise the issue of self-defense,
neither the arguments of counsel nor the court’s charge instructed the jury that it
must acquit Appellant if it had a reasonable doubt on the issue of self-defense.
The jury rejected the charge of murder but convicted Appellant of manslaughter.
After reviewing the entire record, we cannot conclude that Appellant did not
suffer some harm as a result of the trial court’s error. Accordingly, we sustain
Appellant’s second issue.
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Conclusion
Having overruled Appellant’s first issue and sustained his second issue,
we reverse the trial court’s judgment and remand to the trial court for a new trial
consistent with this opinion.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: GARDNER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 24, 2014
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