Deaira Pitts v. State ( 2020 )

Affirmed and Memorandum Opinion filed September 15, 2020.
In The
Fourteenth Court of Appeals
NO. 14-18-00987-CR
DEAIRA PITTS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 1577116
MEMORANDUM OPINION
A jury found appellant Deaira Pitts guilty of the murder of the complainant,
Michael Simmons. Appellant now appeals her conviction asserting that it should
be reversed because (1) the evidence was insufficient to support her conviction, (2)
the trial court reversibly erred when it denied her request to include a defense of
property instruction in the jury charge, (3) the trial court reversibly erred when it
denied her request to submit the lesser-included offense of manslaughter in the jury
charge, and (4) she was egregiously harmed by the trial court’s failure to instruct
the jury that the State carried the burden of disproving self-defense. We affirm.
BACKGROUND
It is undisputed appellant stabbed Simmons in the back and Simmons died
within minutes of being stabbed. Appellant agreed to be interviewed by police
detective Shawn Overstreet and revealed the following sequence of events.
Appellant met Simmons while he was working construction in Baltimore,
Maryland. Simmons and appellant became romantically involved and appellant
accompanied Simmons back to Houston when he finished his work in Baltimore.
According to appellant, they were dating, but were not in a committed relationship.
Once in Houston, they moved into Simmons’ mother’s apartment, but she
eventually made them move out because they were constantly arguing. Simmons
and appellant then moved into a hotel room while they searched for an apartment.
They found an apartment and paid the amount required to move in on Friday
evening, January 12, 2018. Appellant and Simmons each paid half of the money
required to move into the apartment.
Appellant and Simmons started arguing the next day, their first full day in
the apartment. The dispute continued Sunday when Simmons started playing loud
music while appellant tried to study. Appellant left the apartment at this point.
When she returned, Simmons “started picking at” her. Appellant told Simmons to
leave the apartment and go get some fresh air. Simmons left the apartment and he
met a stripper while he was out. Simmons called appellant and asked if he could
bring the stripper back to the apartment. Appellant refused permission for
Simmons to bring the stripper to the apartment, so Simmons returned alone.
The two began arguing again. Appellant tried to call the police because
Simmons was refusing to leave the apartment. Simmons tried to grab appellant’s
phone and she fell to the floor. Appellant then started having an asthma attack and
2
she called 9-1-1 for an ambulance and the police. Appellant packed his things and
left the apartment before the ambulance and police arrived. Appellant did not give
the police Simmons’ correct name because he was on parole and she did not want
him to go to jail.
The police and ambulance left the apartment and Simmons returned a few
minutes later, entering the second-floor apartment through the balcony sliding-
glass door. When appellant asked why he had returned, Simmons responded that
he was there to get the rest of his stuff. Simmons then tried to steal appellant’s
wallet. Appellant again called the police.1 Simmons left the apartment again.
Once Simmons had left, appellant locked both the balcony’s sliding-glass door and
the front door of the apartment.
At that point, appellant called a friend, Ronnie Mitchell, and asked him to
come to the apartment.2 According to appellant, she was concerned about what
Simmons would do if he returned to the apartment and she wanted someone in the
apartment for protection. Appellant described Mitchell as a friend, but told
Detective Overstreet that Simmons believed she was having a relationship with
Mitchell. Appellant also told Detective Overstreet that Simmons was possessive of
her. Mitchell arrived at the apartment complex that evening. Mitchell initially
stopped and talked to Simmons, who was sitting in his car in the complex parking
lot. According to appellant, Mitchell told her that Simmons was “good.” The two
then entered the apartment, where appellant resumed studying. Throughout that
Sunday, Simmons called and texted appellant. Simmons continually asked
appellant for forgiveness and asked if he could return to the apartment.
That night, appellant heard Simmons try, and fail, to enter the apartment
1
According to appellant, this call was cut short when the police hung up on her.
2
Appellant knew Mitchell as Troy Gasman.
3
through the balcony sliding-glass door. According to appellant, Simmons hopped
down off the balcony, walked up the steps to the second floor, and approached the
apartment’s front door. This door had two locks, one that could be opened from
the outside with a key, the second a deadbolt, which could only be opened from the
inside. Simmons used his key to open the door’s lock. Still unable to enter the
apartment because the deadbolt remained locked, Simmons kicked the door.3
Appellant told Detective Overstreet that she then unlocked the deadbolt and
opened the door so she could see what was going on outside. Simmons then
kicked the door open and moved into the apartment, pushing appellant aside.
Mitchell then came toward Simmons and the two men started struggling.
According to appellant, the two men did not exchange blows, but it appeared
Simmons was trying to push Mitchell out of the apartment. Appellant yelled at
Simmons to stop.
Appellant told Detective Overstreet that she had never seen Simmons look
the way he did that night and that she was scared of what would happen if
Simmons won the struggle, pushed Mitchell out of the apartment, and then locked
the door. When it appeared that Simmons was winning the struggle, appellant
went to the kitchen, grabbed a knife, and stabbed Simmons three times in the back.
Appellant told Detective Overstreet that Simmons walked out to the apartment
landing, started vomiting, and collapsed. Mitchell, who had not been pushed
completely out of the apartment, asked appellant what she had done. Appellant
subsequently threw the knife in some bushes outside the apartment.
Nearby apartment residents testified that they heard arguing coming from
appellant’s apartment throughout the day. Apartment resident Kegan Houston
3
The crime scene investigator testified during appellant’s trial that while there was a
crack in the apartment door, the door and frame appeared intact. He offered no opinion on how
long the crack had been in the door.
4
testified that he had seen Simmons walk by on the sidewalk around 11:00 p.m. and
that Simmons appeared frustrated and angry. Other witnesses testified that they
had seen Simmons sitting quietly outside the apartment that evening. About five
minutes after he saw Simmons, Houston was in his bedroom when he heard a loud
rumbling noise. Houston opened his first-floor apartment’s front door and he saw
Simmons laying on the stairs, spitting blood. Houston closed the door and told his
friend, Jeremy Washington, what he had seen. Houston then called 9-1-1.
Washington, who had talked to Simmons earlier in the evening, ran up the stairs
where he found Simmons unresponsive and covered in blood.4 Washington
knocked on appellant’s apartment door. Mitchell came out on the landing and
Washington asked what had happened. Washington then asked both Mitchell and
appellant about four or five times if they had called the police. Neither responded.
Eventually, Mitchell said he had nothing to do with it. Appellant said only that
they “got into it.” Mitchell did finally call 9-1-1, reporting that a black male had
tried to break into the apartment and had been stabbed by the owner.
The paramedics arrived and found Simmons lying in a pool of blood at the
top of the stairs. Simmons did not have a pulse and the paramedics determined
that he was deceased. An autopsy concluded that Simmons had suffered three stab
wounds, only one of which was fatal. The fatal wound was in the right side of his
back, which penetrated his chest cavity and right lung, causing massive bleeding.
According to the assistant medical examiner, Simmons died within minutes of
being stabbed.
Appellant went to trial before a jury. At the conclusion of the evidence the
4
Washington testified during appellant’s trial that he had known Simmons in middle
school, where they had played football together. Washington testified that he was surprised
when he had run into Simmons at the apartment complex that day. Washington had invited
Simmons to come into Houston’s apartment, but Simmons had refused, saying he would wait
until appellant opened the door and let him into the apartment.
5
trial court’s proposed charge included a self-defense instruction. Appellant
objected to the proposed charge and requested that the trial court include two
additional instructions: (1) a defense of property instruction pursuant to Penal Code
section 9.42; and (2) an instruction on the lesser-included offense of manslaughter.
The trial court rejected both. The jury subsequently found appellant guilty as
charged in the indictment and sentenced her to serve twenty years in prison. This
appeal followed.
ANALYSIS
I. The evidence is legally sufficient to support appellant’s conviction.
Appellant argues in her fourth issue on appeal that the evidence is
insufficient to support her conviction because, in her view, no rational jury would
have rejected her self-defense argument. We address this issue first because if
successful, it would entitle appellant to the greatest relief. See Price v. State, 502
S.W.3d 278, 281 (Tex. App.—Houston [14th Dist.] 2016, no pet.).
A. Standard of review and applicable law
In reviewing the sufficiency of the evidence to support a conviction, we
must consider all of 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
(1973); Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim. App. 2012). In our
review, we consider all of the evidence in the record, whether admissible or
inadmissible. Price v. State, 502 S.W.3d 278, 281 (Tex. App.—Houston [14th
Dist.] 2016, no pet.) (citing Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim.
App. 2013)). We measure the sufficiency of the evidence supporting a conviction
by comparing the evidence presented during the trial to the elements of the offense
6
as defined in a hypothetically-correct jury charge. Hernandez v. State, 556 S.W.3d
308, 312 (Tex. Crim. App. 2017).
In viewing the evidence in the light most favorable to the verdict, we must
“defer to the jury’s credibility and weight determinations because the jury is the
sole judge of the witnesses’ credibility and the weight to be given their testimony.”
Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (citing Jackson, 433
U.S. at 319). In conducting a sufficiency review, we do not engage in a second
evaluation of the weight and credibility of the evidence but only ensure that the
jury reached a rational decision. Young v. State, 358 S.W.3d 790, 801 (Tex.
App.—Houston [14th Dist.] 2012, pet. ref’d). Direct and circumstantial evidence
are treated equally. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007). The jury may reasonably infer facts from the evidence as it sees fit. Price,
502 S.W.3d at 281. When the record supports conflicting inferences, we presume
the trier of fact resolved the conflicts in favor of the verdict and defer to that
determination. Clayton, 235 S.W.3d at 778.
Appellant was charged with murder under section 19.02(b) of the Texas
Penal Code, which provides that “[a] person commits an offense if he: (1)
intentionally or knowingly causes the death of an individual; [or] (2) 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 § 19.02(b). A person acts
intentionally with respect to a result of her conduct when it is her conscious
objective or desire to cause the result. Tex. Penal Code § 6.03(a); Herrera v. State,
367 S.W.3d 762, 770 (Tex. App.—Houston [14th Dist.] 2012, no pet.). A person
acts knowingly with respect to a result of her conduct when she is aware her
conduct is reasonably likely to cause the result. Tex. Penal Code § 6.03(b);
Herrera, 367 S.W.3d at 770.
7
A person generally is justified in using deadly force against another in self-
defense if, among other things, that person reasonably believes the force is
immediately necessary to protect against the other’s use or attempted use of
unlawful deadly force. See Tex. Penal Code §§ 9.31, 9.32. A “reasonable belief”
is defined as one that would be held by “an ordinary and prudent man in the same
circumstances as the actor.” See id. § 1.07(a)(42). “Deadly force” is force
“intended or known by the actor to cause, or in the manner of its use or intended
use is capable of causing, death or serious bodily injury.” See id. § 9.01(3).
“Serious bodily injury” is an injury that creates a “substantial risk of death or that
causes death, serious permanent disfigurement, or protracted loss or impairment of
the function of any bodily member or organ.” See id. § 1.07(a)(46).
When a defendant raises a justification defense such as self-defense, the
jury’s verdict of guilt is an implicit finding that it rejected the defense. See Tex.
Penal Code §§ 9.02, .22, .31–.32; Saxton v. State, 804 S.W.2d 910, 913–14 (Tex.
Crim. App. 1991). Because the State bears the burden of persuasion to disprove a
section 2.03 defense such as justification by establishing its case beyond a
reasonable doubt, we review a legal-sufficiency challenge to the jury’s rejection of
such a defense under the Jackson standard. See Tex. Penal Code §§ 2.03(a), 9.02;
Jackson, 443 U.S. at 319; Smith v. State, 355 S.W.3d 138, 145 (Tex. App.—
Houston [1st Dist.] 2011, pet. ref’d) (citing Brooks, 323 S.W.3d at 895 ). We do
not look at whether the State refuted the defensive theory, but whether, after
viewing all of the evidence in the light most favorable to the verdict, any rational
trier of fact could have found the essential elements of the offense beyond a
reasonable doubt and could have found against the defensive theory beyond a
reasonable doubt. Saxton, 804 S.W.2d at 913.
B. Legally sufficient evidence supports the jury’s rejection of
appellant’s self-defense argument.
8
We conclude that any rational trier of fact could have reasonably concluded
beyond a reasonable doubt that appellant’s use of deadly force against Simmons
was not justified by self-defense. We begin by pointing out that appellant
misstates the law when she attempts to impose a burden to produce evidence
contradicting her assertion that her actions were justified by self-defense. As
stated above, the State does not have a burden to produce evidence refuting an
assertion of self-defense. See Dearborn v. State, 420 S.W.3d 366, 372 (Tex.
App.—Houston [14th Dist.] 2014, no pet.) (“This burden does not require the
production of additional evidence rebutting self-defense; it requires the State to
prove its case beyond a reasonable doubt.”). Instead, a reviewing court determines
whether, after viewing all the evidence in the light most favorable to the verdict,
any rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt and could have found against the defensive theory
beyond a reasonable doubt. Saxton, 804 S.W.2d at 913.
Turning to the evidence, it was undisputed appellant was the person who
fatally stabbed Simmons in the back. In addition, it was undisputed appellant was
angry with Simmons that day and the two had been arguing since they had moved
into the apartment. The jury heard appellant tell Detective Overstreet during her
statement that when the police were at the apartment, she did not tell them
Simmons’ real name because she did not want him to go to jail. The jury also
heard appellant tell Detective Overstreet that each time she called the police, or
attempted to call the police, Simmons promptly left the apartment. Yet, appellant
chose not to call police during the final incident that led to Simmons’ murder. It
was also undisputed that Simmons was not armed that night. Indeed, once
appellant had sent Simmons out of the apartment after he tried to steal her wallet
and she had locked the apartment doors, the evidence was undisputed that
9
Simmons, while appearing angry at times, had remained outside for hours and told
witnesses he was going to wait until appellant let him into the apartment.
While there was disputed evidence, again from appellant’s statement to
police, about whether Simmons had previously laid hands on appellant, the jury
could have reasonably disregarded the portions of her statement where she said
that he had, and instead believed her affirmative statement to Detective Overstreet
that he had not. See Hocko v. State, 590 S.W.3d 680, 692 (Tex. App.—Houston
[14th Dist.] 2020, pet. ref’d) (“But the jury was not bound by this testimony —
rather, as the sole judge of the credibility of the witnesses and the weight to be
assigned to their testimonies, the jury was free to disregard Appellant’s version of
events.”). The jury also heard appellant state that when Simmons attempted to
open the apartment door with his key, she was the one who opened the deadbolt
allowing Simmons to enter the apartment. Appellant admitted that Simmons
pushed her out of the way once he entered the apartment and made no aggressive
move against her that night. Instead, appellant saw Simmons try to push Mitchell
out of the apartment, keeping his back toward appellant throughout the struggle.
According to appellant, Simmons did not resort to his fists in his effort to remove
Mitchell from the apartment. Additionally, appellant admitted that she grabbed a
knife from the kitchen and stabbed Simmons in the back three times without
thinking, that it was like she “blacked out.” Also, the jury heard appellant admit
that she threw the knife she had used to stab Simmons into the bushes outside the
apartment. Finally, the jury could see appellant was still angry and irritated at
Simmons at the beginning of her statement and remained so throughout both of her
statements to the police. They also heard appellant’s admission that she could not
explain her actions “without making her seem so wrong about it.”
Considering appellant’s admission that she repeatedly stabbed Simmons in
10
the back, any rational trier of fact could have concluded beyond a reasonable doubt
that appellant did not act in self-defense. See Vasquez v. State, 2 S.W.3d 355, 358
(Tex. App.—San Antonio 1999, pet. ref’d) (stating that evidence that the defendant
inflicted multiple stab wounds in victim’s back tended to show that deadly force
was not immediately necessary to protect against use of deadly force). This
conclusion is reinforced by the fact the jury heard evidence that Simmons left the
apartment each time appellant called or attempted to call the police. Based on this
evidence, the jury could have determined that appellant did not reasonably believe
the use of deadly force was immediately necessary. See Tex. Penal Code
§ 9.32(a)(2) (stating that person is justified in using deadly force if, among other
things, she “reasonably believes the deadly force is immediately necessary”);
Fountain v. State, No. 14-18-00229-CR; 14-18-00231-CR, 2020 WL 3548434, at
*4 (Tex. App.—Houston [14th Dist.] June 30, 2020, no pet. h.) (“Moreover, in the
absence of an immediate threat, which the jury could have concluded was missing
here, threats before the incident are insufficient to conclusively prove self-
defense.”); Hocko, 590 S.W.3d at 692. The jury also heard evidence that Simmons
was not armed that night, he had not made an aggressive move against appellant
that evening, and he was instead trying to push Mitchell out of the apartment.
Based on this evidence, the jury could have reasonably concluded that Simmons
was not using, or attempting to use, deadly force against appellant. See id.
(providing that deadly force is authorized if defendant reasonably believes that the
victim was using or attempting to use deadly force against defendant); Saxton, 804
S.W.2d at 913–14 (stating that jury is the sole judge of the witnesses’ credibility
and the weight to be given to their testimony and is entitled to accept or reject any
defensive evidence related to self-defense). Therefore, the jury was free to
disbelieve appellant’s claims supporting a theory of self-defense, and instead rely
entirely upon the incriminating portions of appellant’s statements. See Dearborn,
11
420 S.W.3d at 374 (“Therefore, appellant’s statement does not conclusively prove
a claim of self-defense.”). The fact it did so does not render the evidence
insufficient. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991)
(stating jury can disbelieve witness’s recantation of prior testimony); Johnson v.
State, 421 S.W.3d 893, 898 (Tex. App.—Houston [14th Dist.] 2014, no pet.)
(“Appellant’s own statement that he did not conspire to rob Vasquez does
not render the evidence to the contrary insufficient.”). Because the evidence was
legally sufficient to support appellant’s conviction, we overrule her fourth issue.
See Hocko, 590 S.W.3d at 692 (holding evidence legally sufficient to support jury
finding essential elements of offense beyond reasonable doubt and finding against
the defendant’s self-defense claim beyond a reasonable doubt).
II. The trial court did not abuse its discretion when it refused to include a
defense of property instruction in the jury charge.
The trial court included an instruction on self-defense in its proposed charge.
Appellant objected to the lack of an instruction regarding the use of deadly force to
protect property and submitted a proposed charge instruction.5 The trial court
denied appellant’s requested instruction on defense of property. Appellant argues
in her first issue that the trial court committed reversible error when it denied her
requested instruction because the evidence raised the issue of her right to use
5
Here, appellant’s trial counsel raised a general objection that the jury charge failed to
include “an instruction regarding deadly force to protect property.” Appellant’s counsel did not
provide argument in support of this request or cite to evidence raising that defensive issue.
Counsel did, however, submit a written proposed instruction regarding the use of deadly force to
prevent another’s imminent commission of burglary or criminal mischief at night. Appellant’s
proposed instruction contains the following language: “You are instructed that a person commits
the offense of burglary if, without the effective consent of the owner, she enters a habitation with
intent to commit theft.” Appellant’s counsel however, had crossed out the word “theft” and had
handwritten in a notation saying that a person commits burglary if she enters a habitation with
the intent to commit “a felony or an assault.” In addition, all of the original definitions in the
proposed charge instruction pertaining to theft were crossed out and replaced with handwritten
definitions for “felony” and “assault.”
12
deadly force to defend her property from the complainant’s imminent commission
of burglary, theft during the nighttime, or criminal mischief in the nighttime.
A. Standard of review and applicable law
“[A]n accused has the right to an instruction on any defensive issue raised by
the evidence, whether that evidence is weak or strong, unimpeached or
contradicted, and regardless what the trial court may or may not think about the
credibility of the defense.” Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App.
1996). The defendant’s testimony alone may be sufficient to raise the issue and
warrant a requested defensive instruction. Hayes v. State, 728 S.W.2d 804, 807
(Tex. Crim. App. 1987). In reviewing whether the trial court erred in refusing to
submit a requested defensive instruction, we must examine the evidence offered in
support of the defensive issue in the light most favorable to the defense. Bufkin v.
State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006). When evidence from any
source raises a defensive issue, and the defendant properly requests a jury charge
on that issue, the trial court must submit the issue to the jury. Muniz v. State, 851
S.W.2d 238, 254 (Tex. Crim. App. 1993). The jury, and not the trial court, decides
whether to accept or reject a properly raised defensive theory. Woodfox v. State,
742 S.W.2d 408, 410 (Tex. Crim. App. 1987). If the evidence fails to raise a
defensive issue, the trial court commits no error by refusing to submit a requested
instruction. Kunkle v. State, 771 S.W.2d 435, 443–44 (Tex. Crim. App. 1986).
We review the trial court’s decision to deny a defensive issue in a jury charge for
an abuse of discretion. See Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim.
App. 2000).
A person is justified in using deadly force against another to protect
property when (1) she would be justified in using force under Penal Code section
13
9.416, (2) she reasonably believes the deadly force is immediately necessary to
prevent burglary7, theft during the nighttime, or criminal mischief during the
nighttime, and (3) she reasonably believes that the property cannot be protected by
other means. See Tex. Penal Code § 9.42. All three of the statutory circumstances
must exist in order for the defendant to be entitled to an instruction on the use of
deadly force in defense of property. Leach v. State, 983 S.W.2d 45, 47 (Tex.
App.—Tyler 1998, no pet.).
B. There is no evidence supporting the inclusion of a defense of
property to prevent theft during the nighttime instruction in the
jury charge.
Assuming for purposes of appeal that this issue was preserved by appellant’s
objection and proposed instruction, we conclude that the trial court did not abuse
its discretion when it denied appellant’s requested instruction because there was no
evidence that Simmons was committing theft when appellant stabbed him. While
there is evidence in the record that Simmons attempted to take appellant’s wallet,
appellant admits in her brief that this occurred hours earlier that day. The evidence
instead establishes that hours later a struggle between Simmons and Mitchell began
as soon as Simmons entered the apartment and appellant stabbed Simmons in the
back soon thereafter. Because there is no evidence in the record that Simmons was
in the process of unlawfully appropriating property without the owner’s effective
6
Section 9.41 provides that a person in lawful possession of “movable property is
justified in using force against another when and to the degree the actor reasonably believes the
force is immediately necessary to prevent or terminate the other’s trespass on the land or
unlawful interference with the property.” Tex. Penal Code § 9.41(a).
7
A person commits the offense of burglary if, without the effective consent of the owner,
the person enters a habitation with the intent to commit a felony, theft, or an assault. See Tex.
Penal Code § 30.02(a)(1). An “owner” is defined as a person who “has title to the property,
possession of the property, whether lawful or not, or a greater right to possession of the property
than the actor.” Tex. Penal Code § 1.07(a)(35)(A). “Possession” of property means “[a]ctual
care, custody, control, or management.” Tex. Penal Code § 1.07(a)(39).
14
consent when appellant stabbed him in the back, we conclude that the trial court
did not abuse its discretion when it denied appellant’s requested defense of
property to prevent theft instruction. See Sparks v. State, 177 S.W.3d 127, 132–33
(Tex. App.—Houston [1st Dist.] 2005, no pet.) (holding trial court did not err
when it denied defense of property instruction because there was no evidence the
victim was attacking or robbing defendant even though there was evidence victim
had previous to fatal incident demanded money from defendant).
C. The trial court did not abuse its discretion when it denied
appellant’s requested defense of property to prevent criminal
mischief during the nighttime instruction.
A person commits the offense of criminal mischief if, without the effective
consent of the owner, the person intentionally or knowingly damages or destroys
tangible property of the owner. See Tex. Penal Code § 28.03(a)(1). On appeal,
appellant argues that she could see Simmons “was damaging her property by his
cracking the door while attempting to kick it open.” Appellant does not point out
any other evidence in the record supporting her criminal mischief theory nor has
our search revealed any. The evidence in the record establishes that once the
apartment door was opened, Simmons immediately began struggling with Mitchell
and appellant stabbed him almost immediately thereafter. As a result, any damage
to the apartment had been completed before appellant stabbed Simmons in the
back. There is no evidence appellant believed that it was necessary to stab
Simmons to prevent further damage to the apartment door or to prevent damage to
any other property in the apartment. See Hernandez v. State, 914 S.W.2d 218, 224
(Tex. App.—El Paso 1996, pet. ref’d) (holding evidence was insufficient to raise
issue on defense of property because criminal mischief had been completed before
defendant’s use of deadly force and there was nothing in record suggesting
additional criminal mischief was imminent); Jackson v. State, 753 S.W.2d 706,
15
710 (Tex. App.—San Antonio 1988, pet. ref’d) (holding defendant not entitled to
instruction on defense of property where victim’s act of criminal mischief was
completed before defendant’s use of deadly force and evidence indicated
defendant’s “sole reason for discharging his shotgun was to protect himself from
what he perceived as harm to himself.”). We conclude that the trial court did not
abuse its discretion when it denied appellant a defensive instruction on defense of
property to prevent criminal mischief during the nighttime.
D. Appellant was not harmed by the denial of a defense of property
instruction to prevent Simmons from entering the apartment to
commit an assault.
Appellant also argues in her first issue that the trial court abused its
discretion when it rejected her request for a defense of property instruction to
prevent Simmons from entering the apartment to assault her. Even if the trial court
erred when it denied appellant’s requested instruction, appellant must still
demonstrate that she was harmed as a result. See Ngo v. State, 175 S.W.3d 738,
743 (Tex. Crim. App. 2005) (stating that to establish reversible charge error, a
defendant must demonstrate that she was harmed by the error). In evaluating
whether a defendant was harmed by an erroneous jury instruction, the degree of
harm must be measured by the following factors: (1) the entire jury charge; (2) the
state of the evidence; (3) the parties’ arguments; and (4) all other relevant record
information. Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015); see
French v. State, 563 S.W.3d 228, 237 (Tex. Crim. App. 2018) (“Whether jury
charge error is preserved or not, the degree of harm resulting from the error must
be measured in light of all four factors identified in Almanza.”). Neither party
bears the burden to show harm or lack thereof as a result of the error. Marshall v.
State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016).
We conclude appellant was not harmed by the trial court’s failure to submit
16
the requested instruction. The trial court did submit, and the jury rejected,
appellant’s self-defense theory. Here, the focus of appellant’s requested defense of
property instruction is on the same conduct as the self-defense claim, appellant’s
belief that Simmons was about to assault her. Therefore, the jury’s rejection of
appellant’s self-defense claim negates appellant’s claim for the use of deadly force
in defense of property and she was not harmed by the trial court’s failure to submit
her requested instruction. Cf. Wooten v. State, 400 S.W.3d 601, 609–10 (Tex.
Crim. App. 2013) (holding defendant was not harmed by trial court’s failure to
give sudden passion instruction where jury had rejected defendant’s claim that he
reasonably believed the use of deadly force was immediately necessary in self-
defense, and both defenses focused on the interaction between defendant and
victim).
Having rejected each argument raised in appellant’s first issue, we overrule
that issue.
III. The trial court did not abuse its discretion when it denied appellant’s
request for a lesser-included offense instruction on manslaughter.
Appellant argues in her second issue that the trial court reversibly erred
when it denied her requested instruction on the lesser-included offense of
manslaughter.
A charge on a lesser-included offense should be given when (1) the lesser-
included offense is included within the proof necessary to establish the offense
charged, and (2) there is some evidence in the record that would permit a jury
rationally to find that if the defendant is guilty, she is guilty only of the lesser
offense. Sweed v. State, 351 S.W.3d 63, 67–68 (Tex. Crim. App. 2011). For the
second part of the analysis, we evaluate whether some evidence exists from which
a rational jury could acquit the defendant of the greater offense while convicting
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the defendant of the lesser-included offense. Sweed, 351 S.W.3d at 68. The
evidence must establish the lesser-included offense as a “valid, rational alternative
to the charged offense.” Id. To make this determination, we review all of the
evidence introduced during the trial. Id. We review a trial court’s failure to submit
a lesser-included offense instruction for an abuse of discretion. Steele v. State, 490
S.W.3d 117, 126 (Tex. App.—Houston [1st Dist.] 2016, no pet.).
The first requirement is met here because manslaughter is a lesser-included
offense of murder. See Cavazos v. State, 382 S.W.3d 377, 382–84 (Tex. Crim.
App. 2012). The second requirement, however, is not met. First, appellant argues
that the evidence supports a manslaughter instruction because there is some
evidence in the record that she acted under the influence of sudden passion arising
from an adequate cause. Evidence that a defendant acted under the influence of
sudden passion is no longer relevant to determining whether a defendant is guilty
only of the lesser-included offense of manslaughter. See Tex. Penal Code §
19.02(d) (“At the punishment stage of a trial, the defendant may raise the issue as
to whether he caused the death under the immediate influence of sudden passion
arising from an adequate cause.”); Wooten, 400 S.W.3d at 605 (“Under the current
statutory scheme, the question of whether a defendant killed while under the
immediate influence of sudden passion is a punishment issue.”).
Next, appellant argues that the location of Simmons’ fatal injury, which she
describes as a “freak accident,” the manner in which she stabbed Simmons, which
she describes in her brief as hitting him, and her lack of reflection before stabbing
Simmons all support the submission of a manslaughter lesser-included offense
instruction. We disagree. Here, the evidence establishes that appellant went to the
kitchen, grabbed a knife, and when it appeared Simmons was pushing Mitchell out
of the apartment door, she stabbed Simmons three times in the back. These types
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of actions are clearly dangerous to human life and they will not rationally support a
finding that her conduct was merely reckless. See Martinez v. State, 16 S.W.3d
845, 848 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (“The commission of
an act clearly dangerous to human life suffices to support a conviction for murder
under section 19.02(b)(2) of the Texas Penal Code and is not an accidental or
reckless act.”). In addition, appellant’s assertion that she acted in self-defense, an
intentional act, is inconsistent with an instruction on manslaughter, which is based
on reckless conduct. See Alonzo v. State, 353 S.W.3d 778, 782 (Tex. Crim. App.
2011) (“by arguing self-defense, a defendant is arguing that his actions were
justified, and therefore he did not act recklessly”); Martinez, 16 S.W.3d at 848
(stating that “one cannot accidentally or recklessly act in self-defense”).
Because appellant has not cited any affirmative evidence in the record that
would have negated her intent to kill at the time she stabbed Simmons, appellant
did not satisfy the second requirement for an instruction on the lesser-included
offense of manslaughter. Therefore, the trial court did not abuse its discretion
when it denied appellant’s lesser-included offense instruction. We overrule
appellant’s second issue.
IV. The trial court committed no error when it did not, sua sponte, submit
an instruction in the jury charge instructing the jury that the State had
the burden to prove beyond a reasonable doubt that self-defense did not
apply to appellant’s conduct.
Appellant, citing Saxton v. State, argues in her third issue that the trial court
erred when it did not, sua sponte, instruct the jury that the State had the burden to
“prove, beyond a reasonable doubt, that self-defense does not apply to the
defendant’s conduct.” 804 S.W.2d at 912.
Appellant’s reliance on Saxton is misplaced. Saxton involved a sufficiency
challenge to a murder conviction where self-defense was claimed. In Saxton, the
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Texas Court of Criminal Appeals, stated:
Arguably, § 2.03(d) appears to impose a burden on the State to
directly refute a defense raised at trial . . . but the Practice
Commentary to § 2.03(d) and other case law indicate otherwise . . . .
[T]he State has the burden of persuasion in disproving the evidence of
self-defense. That is not a burden of production, i.e., one which
requires the State to affirmatively produce evidence refuting the self-
defense claim, but rather a burden requiring the State to prove its case
beyond a reasonable doubt.
Saxton, 804 S.W.2d at 913; see also Tex. Penal Code § 2.03(d) (“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.”). Further,
in Saxton, the Court of Criminal Appeals discussed the distinction between the
burden of persuasion versus burden of production. 804 S.W.2d at 913. It went on
to hold that the State has the burden of persuasion to prove its case beyond a
reasonable doubt, and a “verdict of guilty is an implicit finding rejecting the
defendant’s self-defense theory.” Saxton, 804 S.W.2d at 914.
The State is not required to negate the existence of the defense. See Tex.
Penal Code § 2.03(b) (“The prosecuting attorney is not required to negate the
existence of a defense in the accusation charging commission of the offense.”).
The trial court is however, required to instruct the jury that reasonable doubt as to
the existence of the defense shall require acquittal. See Tex. Penal Code § 2.03(d).
The trial court, as required by Texas Penal Code § 2.03(d), instructed the jury in
the abstract portion of the charge as follows:
With regard to the presumption of the necessity of deadly force, you
are further instructed that:
(1) the presumption applies unless the state proves beyond a
reasonable doubt that the facts giving rise to the presumption do not
exist;
(2) if the state fails to prove beyond a reasonable doubt that the facts
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giving rise to the presumption do not exist, the jury must find that the
presumed fact exists;
(3) even though the jury may find that the presumed fact does not
exist, the state must prove beyond a reasonable doubt each of the
elements of the offense charged; and
(4) if the jury has a reasonable doubt as to whether the presumed fact
exists, the presumption applies and the jury must consider the
presumed fact to exist.
Then, in the application portion of the charge, the trial court instructed the
jury:
Therefore, if you find from the evidence beyond a reasonable doubt
that the defendant, Deaira Pitts, did then and there unlawfully,
intentionally or knowingly cause the death of Michael Wayne
Simmons, as alleged, but you further find from the evidence, as
viewed from the standpoint of the defendant at the time, that from the
words or conduct, or both of Michael Wayne Simmons it reasonably
appeared to the defendant that her life or person was in danger and
there was created in her mind a reasonable expectation or fear of death
or serious bodily injury from the use of unlawful deadly force at the
hands of Michael Wayne Simmons, and that acting under such
apprehension and reasonably believing that the use of deadly force on
her part was immediately necessary to protect herself against Michael
Wayne Simmons’s use or attempted use of unlawful deadly force, she
stabbed Michael Wayne Simmons, then you should acquit the
defendant on the grounds of self-defense; or if you have a reasonable
doubt as to whether or not the defendant was acting in self-defense on
said occasion and under the circumstances, then you should give the
defendant the benefit of that doubt and say by your verdict, not guilty.
If you find from the evidence beyond a reasonable doubt that at the
time and place in question the defendant did not reasonably believe
that she was in danger of death or serious bodily injury, or that the
defendant, under the circumstances as viewed by her from her
standpoint at the time, did not reasonably believe that the degree of
force actually used by her was immediately necessary to protect
herself against Michael Wayne Simmons’s use or attempted use of
deadly force, then you should find against the defendant on the issue
of self-defense.
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The trial court properly instructed the jury that the State held the final
burden of persuasion on the issue of self-defense, and that if there was a reasonable
doubt on that issue it was to find the defendant not guilty. See Tex. Penal Code §
2.03(d). Because the trial court properly instructed the jury on the law applicable
to the case, there is no error in the charge as to the self-defense burden instruction.
Concluding there is no error in the charge, we need not consider the Almanza
analysis. We overrule appellant’s third issue.
CONCLUSION
Having overruled appellant’s issues on appeal, we affirm the trial court’s
judgment.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Zimmerer, Spain, and Hassan.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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