Larry Kirk Pointer v. State ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00441-CR
LARRY KIRK POINTER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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In two points, Larry Kirk Pointer––who was convicted of murder––alleges
that the trial court erred by (1) sustaining the State’s objection to evidence that
the deceased had once “gone to jail” in the 1990s for a “domestic situation” and
(2) denying his requested instruction on self defense. We affirm.
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See Tex. R. App. P. 47.4.
Exclusion of Evidence Regarding Arrest
The evidence showed that appellant stabbed Michael Wells. Wells’s
mother testified that he suffered from Erb’s palsy, which caused his right arm to
be smaller than his left and restricted upward motion in that arm. She also
testified that her relationship with Wells had been distant over the past nine
years. According to Wells’s mother, a large number of people attended his
funeral. On cross-examination, the defense asked her whether Wells was “pretty
feisty,” and she said, “No, I mean, I never saw him have a temper.” When asked
by the defense if she was aware that Wells had been arrested for resisting arrest,
she said, “No.” After she answered the question, the prosecutor objected on
relevance grounds and asked to approach the bench. The following exchange
occurred outside the jury’s presence:
THE COURT: What is your legal response, [defense counsel]?
[DEFENSE COUNSEL]: Judge, with respect to the question I asked,
did she know - - I mean, did he have a temper and she said no. And
then my question was, was she aware of the event that he’s not a
peaceful, law-abiding citizen.
THE COURT: I don’t think she said that he was or he wasn’t. You
can’t open your own door. And plus, when was this arrest? I don’t
believe she said he’d never been arrested. She answered your
questions on cross. The State didn’t elicit this information.
. . . The objection is sustained based on the current state of
the record.
....
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THE COURT: . . . For the record, do you have any other questions
that might be of this nature that you want to ask this witness outside
the jury’s presence, either to make a bill or to - -
For the record, did you know that he had been arrested or
convicted of resisting arrest?
[WELLS’S MOTHER]: I didn’t know about resisting arrest. I heard
that there was a domestic situation, but I didn’t - - I knew he went to
jail but I had never heard about resisting arrest.
THE COURT: And the time period this happened would have been
when?
[WELLS’S MOTHER]: Early ʼ90s maybe.
THE COURT: All right. For the record, that would be her answer to
- - that would be your answer to her [defense counsel’s] question; is
that correct?
[WELLS’S MOTHER]: Yes.
THE COURT: Then she has that record. The objection is still
sustained based on the time frame of early ʼ90s.
When the jurors re-entered the courtroom, the trial court told them he had
sustained the objection and instructed them to disregard the witness’s answer.
According to appellant, the trial court should have admitted the evidence
because it is relevant and probative “in that it may have made it more likely the
jurors would have concluded that the deceased was the aggressor and that
[a]ppellant correctly found it necessary to arm himself.”
The rules of evidence permit a defendant to offer evidence concerning the
victim’s character for violence or aggression on two separate theories when the
defendant is charged with an assaultive offense. Ex parte Miller, 330 S.W.3d
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610, 618 (Tex. Crim. App. 2009). First, the defendant may offer reputation or
opinion testimony, or evidence of specific prior acts of violence by the victim, to
show the “reasonableness of defendant’s claim of apprehension of danger” from
the victim. Id. This is called “communicated character” because the defendant is
aware of the victim’s violent tendencies and perceives a danger posed by the
victim, regardless of whether the danger is real or not. Id. This theory does not
invoke rule 404(a)(2) because rule 404 bars character evidence only when
offered to prove conduct in conformity, i.e., that the victim acted in conformity
with his violent character. Id.; see Tex. R. Evid. 404.
Nothing in the record shows that appellant was aware that Wells had been
arrested in the early 1990s. Accordingly, this was not admissible as
“communicated character” evidence. See Miller, 330 S.W.3d at 618–19.
A defendant may also offer evidence of the victim’s character trait for
violence to demonstrate that the victim was, in fact, the first aggressor. Id. at
619. Rule 404(a)(2) is directly applicable to this theory; this use is called
“uncommunicated character” evidence because it does not matter if the
defendant was aware of the victim’s violent character. Id.; see Tex. R. Evid.
404(a)(2). However, this type of evidence is available only through reputation
and opinion testimony under rule 405(a). Miller, 330 S.W.3d at 619; see Tex. R.
Evid. 405(a). Therefore, evidence of Wells’s arrest for a possible domestic
situation––a specific instance of conduct––was not admissible under this theory
either. See Miller, 330 S.W.3d at 619–20.
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Accordingly, we overrule appellant’s first point.
Requested Self-Defense Instruction
In his second point, appellant contends that the trial court abused its
discretion by denying his requested instruction on self defense. According to
appellant, the evidence of self defense was weak but nevertheless enough to
warrant an instruction. That evidence, according to appellant, was that Wells
was armed with a knife and was aggressive during the confrontation that led to
the stabbing. According to appellant, “[a]lthough no one witnessed him threaten
[a]ppellant with the knife, or otherwise display or use it during the confrontation,
[a]ppellant believes that the trial court should have erred on the side of caution
and granted defense counsel’s request.”
Applicable Law
A defendant is entitled to a defensive instruction only if evidence is
admitted supporting the defense. Tex. Penal Code Ann. § 2.03(c) (West 2011);
Shaw v. State, 243 S.W.3d 647, 657 (Tex. Crim. App. 2007), cert. denied, 553
U.S. 1059 (2008). A defense is 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. Shaw, 243 S.W.3d at
657–58. In determining whether a defense is thus supported, a court must rely
on its own judgment, formed in the light of its own common sense and
experience, as to the limits of rational inference from the facts proven. Id. at 658.
If a defense is supported by the evidence, then the defendant is entitled to an
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instruction on that defense, even if the evidence supporting the defense is weak
or contradicted, and even if the trial court is of the opinion that the evidence is not
credible. Id. But the evidence must be such that it will support a rational jury
finding as to each element of the defense. Id.
Appellant asked for instructions under section 9.31 and 9.32 of the penal
code, which provide together that a person is justified in using deadly 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 deadly force.” See Tex. Penal Code Ann. §§ 9.31(a),
9.32(a)(1)–(2)(A) (West 2011). Thus, appellant was entitled to a charge on self-
defense if evidence was presented which, if believed, showed that appellant
reasonably believed his use of deadly force was immediately necessary to
protect himself against Wells’s use or attempted use of deadly force. See
Morales v. State, 357 S.W.3d 1, 4 (Tex. Crim. App. 2011).
Evidence
Two witnesses who were present when appellant stabbed Wells testified
about what they saw. One of the witnesses testified that Wells was asleep in his
bunk bed at the Presbyterian Night Shelter, and appellant was cleaning around it
with a broom. Appellant kept hitting the bed with the broom. Eventually, Wells
woke up and was angry; he got up quickly and said he would clean up himself.
The two men got into a loud and heated argument while they were about five or
six feet apart. After they exchanged insults about each other’s mothers, they got
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closer to each other. Appellant said, “What did you say about my mom,” then
“rushed over to” Wells, pinned Wells by the neck to the back of the bunk bed with
his right hand, and punched Wells in the stomach area as he grabbed him. The
witness did not realize appellant had stabbed Wells until he saw the blood.
This witness testified that although Wells was mad when he woke up, he
did not “cuss” appellant and that appellant was the one who came closer to Wells
when Wells started saying derogatory things about appellant’s mother. When
asked if he had testified at a prior hearing that it appeared Wells had tried to
harm appellant, the witness said that he had not fully understood the question at
the prior hearing and that his answer at the prior hearing was based on the
aggressiveness of the conversation. He also testified that it was common for
people to have weapons in the shelter even though they were not allowed.
In contrast, the other witness said he heard Wells say in a normal voice,
“Hey, it’s okay, I’ll sweep for you, it’s okay, I’ll sweep for you.” When the witness
looked up from his bed, he saw that Wells was sitting on the edge of his bed
saying this to appellant. According to this witness, Wells
was sitting on the edge of his bunk and he was facing towards me
and that’s when [appellant] walked around to the front of his bunk
and reached underneath either his pillow or underneath the head of
the mattress and he came around the end of his bunk and [Wells]
got up to the end of his bunk and they kind of came face-to-face with
each other.
The witness did not see what appellant was reaching for under his pillow. He
heard “the altercation” start when the two came face to face with each other.
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Then the witness heard “one of the bunks being pushed and shoved real
hard[,] . . . kind of screeching over[,] and I heard [Wells] sa[y], ‘Hey, you don’t
have to punch me,’ and that’s when [Wells] - - that’s when I heard [Wells] say,
‘Hey, you - - you SOB, you stabbed me.’” He also saw appellant push or shove
Wells so hard he was forced into the bunk bed, which moved backward. He did
not recall any cussing, aggressiveness, or arguing between the two.
Both men testified that they were not aware Wells had a knife and never
saw one. They likewise did not see appellant with one.
A Fort Worth police officer testified that he went to the hospital after the
stabbing, and a surgery tech from the operating room gave him Wells’s personal
effects, which included a cell phone, wallet, cigarette lighter, the clothes he was
wearing, jewelry, and a three to five inch silver lock-blade knife. These were
items Wells “had on him” when he entered the hospital. The knife and jewelry
were in a separate bag from the other items. The officer did not know where the
knife had been before that.
The defense elicited testimony from the investigating detective that it is
important to know whether Wells had a knife for “[s]elf-defense issues,” but he
also said the simple possession of the knife was not important here because of
the eyewitness accounts of what had happened.
A firefighter who responded to the stabbing testified that he did not see a
knife at the scene. Another witness, who was not an eyewitness to the event,
testified that appellant is about 6’2” or 6’3” and around 215 pounds while Wells
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was about five feet tall, with one arm shorter than the other, and around one
hundred sixty or one hundred seventy pounds. The contract pathologist who
examined Wells’s body testified that he was 5’5” and 148 pounds. An officer who
took photographs of appellant after the stabbing testified that he did not have any
wounds on him.
Appellant did not testify, nor did any witnesses testify on his behalf. The
only evidence regarding Wells’s possessing a knife is that one was included with
his personal effects collected at the hospital. Despite the testimony of two
eyewitnesses, there is no evidence that Wells was displaying the knife or had
threatened appellant with it in any way. Likewise, there was no evidence that
Wells, who was considerably smaller than appellant, approached appellant
aggressively or did anything other than insult appellant’s mother.
The use of force is not justified in response to verbal provocation alone.
See Tex. Penal Code Ann. § 9.31(b); Hamel v. State, 916 S.W.2d 491, 494 (Tex.
Crim. App. 1996). We conclude and hold that there is no evidence to support a
self-defense instruction here and, thus, that the trial court did not abuse its
discretion by refusing to give one. We overrule appellant’s second point.
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Conclusion
Having overruled both of appellant’s points, we affirm the trial court’s
judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 11, 2013
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