Johnny Lee Sizemore v. State

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00786-CR
Johnny Lee SIZEMORE,
Appellant
v.
The STATE of Texas,
Appellee
From the 198th Judicial District Court, Bandera County, Texas
Trial Court No. CR-15-0000049
Honorable M. Rex Emerson, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: November 16, 2016
AFFIRMED
A jury convicted Johnny Lee Sizemore of aggravated assault with a deadly weapon. At
trial, the undisputed evidence showed that Sizemore shot the victim. The only issue was whether
Sizemore did so in self-defense. On appeal, Sizemore argues the trial court erred by excluding
parts of his testimony about past instances of violence by the victim. We conclude any error was
harmless and affirm the trial court’s judgment.
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BACKGROUND
On January 10, 2015, the victim, Shawn Weber, went to Sizemore’s house to talk to
Sizemore’s girlfriend, Mindy Heilbrun. Weber dropped off a propane tank with Heilbrun who had
agreed to obtain some propane for Weber. In addition, Weber had a matter to discuss with
Heilbrun. Weber and Heilbrun had been neighbors in the past. Heilbrun’s children had been
removed from her by child protective services and Weber wanted to assure Heilbrun that he was
not the one who had reported her to the authorities.
Heilbrun invited Weber to come inside Sizemore’s house. Weber, Heilbrun, and Sizemore
then went to the bedroom, where they talked and smoked methamphetamine. Sizemore was sitting
on the bed and was looking at his laptop computer. Heilbrun and Weber were sitting in chairs.
According to Weber’s trial testimony, Heilbrun handed Weber her pocketknife, which he
examined and returned to Heilbrun. Sizemore also handed Weber a knife which Weber examined
and then set down on the chair next to him. At some point, Sizemore handed Weber his laptop to
show him something on the computer. Weber gave the computer back to Sizemore. Sizemore then
told Weber that he was going to shoot him. Sizemore pulled a gun out from under the bed covers
and shot Weber. The bullet skimmed Weber’s upper left arm and entered and exited his neck.
Weber asked Sizemore why he shot him, and Sizemore said, “Because you are a snitch.” The
shooting did not seem to surprise Heilbrun, who hovered over Weber for a minute while looking
at her phone. Weber was stunned, but he was able to walk out of Sizemore’s house. Weber walked
to a couple of houses looking for help. Weber was feeling weak and his neck was hurting badly so
he stopped walking and came to rest at a house. An occupant of the house called an ambulance.
Weber further testified that he never made a move toward Sizemore or used Heilbrun and
Sizemore’s knives in a threatening manner.
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Sizemore presented a different account of the incident. According to Sizemore’s trial
testimony, Weber came to his house on the day of the shooting because it was winter, it was cold,
and Weber needed propane. Heilbrun was going to get some propane for Weber. Sizemore did not
know Weber well, but they had met on two or three occasions. Sizemore denied that he smoked
methamphetamine with Weber and Heilbrun. While Weber and Heilbrun talked, Sizemore was on
his computer. Sizemore was mad because when he typed his name into the computer, the search
results showed that he was connected with a capital murder case. Weber told Sizemore to type his
name into the computer. Sizemore did as Weber asked, and the search results indicated that Weber
had committed an offense and that he was a pedophile. When Weber learned this, he seemed
embarrassed and Sizemore laughed at him. At this point, Weber, who still had Heilbrun’s
pocketknife, flipped the knife open and started to get up from the chair and come at Sizemore.
Sizemore then grabbed his gun and shot Weber. Weber was stunned and fell back into the chair.
Sizemore testified that he was afraid for his life, that shooting Weber was reasonably
necessary, and that Weber was too close to stop any other way. Sizemore also testified that if he
had not shot Weber when he did, Weber would have probably killed him.
Sizemore further testified that he had an opinion about Weber’s reputation in the
community: Weber was a violent person. He further stated that Weber’s overall reputation in the
community was that he was “pretty violent.” Sizemore said he was aware of previous incidents of
violence involving Weber. One incident involved “an assault with a deadly weapon, a vehicle.”
Another incident involved a “normal assault.” However, the trial court did not allow Sizemore to
testify any further about these incidents because Sizemore had no personal knowledge of the
details of the incidents.
Sizemore estimated that when Weber lunged at him with the pocketknife he was about
eight feet away. Sizemore claimed his gun was not under the covers; it was out in the open.
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Sizemore explained that the gun, which was loaded, was next to him because he was “probably”
going to show it to Weber after he showed him his knife. Sizemore said that after the shooting he
was afraid because he thought he might have killed Weber accidentally. Sizemore also testified
that he did not think the wound was that bad; he thought the bullet had just grazed Weber. After
the shooting, Weber walked out of the house. Sizemore did not call for medical assistance.
The defense also called Heilbrun to testify. Heilbrun testified that she had agreed to obtain
propane for Weber and to talk to him, but she did not want to talk to Weber alone. Thus, Heilbrun
had arranged for Weber to come to Sizemore’s house while Sizemore was present. Heilbrun
admitted she and Weber had smoked methamphetamine, but claimed Sizemore did not. At the
beginning of the meeting, Heilbrun and Weber were talking about the report that had been made
to child protective services about Heilbrun. Weber wanted Heilbrun to know that he was not the
person who had reported her to child protective services. Sizemore was not talking much. Sizemore
did mention, however, that when you searched his name on the computer, a criminal case popped
up in which he had not been involved. Weber told Sizemore to conduct a search with his name.
Weber gave Sizemore his full name and told him where to search on the computer. Sizemore
followed Weber’s instructions and then said, “Whoa, man, this says you’re a pedophile.” This
made Weber really mad and he starting calling Sizemore a liar. At this point, Weber, who still had
Heilbrun’s pocketknife in his hand, started to attack Sizemore. Weber flipped the pocketknife open
and lunged toward Sizemore who was seated on the bed. Hielbrun feared that Weber would stab
Sizemore. Heilbrun heard Sizemore fire a gun at Weber. She then got up out of her chair and
walked out of the room towards the other end of the house. Heilbrun was “freaked out,” but she
did not seek medical attention for Weber.
The defense finally called Ryan Brown. Brown testified that Weber had a reputation in the
community for being a very violent person. Brown said he had witnessed a road rage incident
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involving Weber. According to Brown, he was a passenger and Weber was driving. As Weber
drove, another car came at Weber’s car almost causing a head-on collision. Weber swerved out of
the way, then motioned for the driver of the other car to come back. The driver of the other car
came back and pursued Weber and Brown onto the highway. At one point, Weber got out of the
car and the driver of the other car attempted to run over Weber. Weber got back in the car and
chased the other car for about five miles. At some point, the driver of the other car slammed on his
brakes and Weber went around him. Weber’s car and the other car collided multiple times. Weber’s
car also hit an embankment. Eventually, Weber rammed his car into the other car repeatedly.
Brown said he was very “shook up” by the incident.
After hearing all the evidence, the jury rejected the theory that Sizemore acted in self-
defense and found him guilty of assault with a deadly weapon. Sizemore appealed.
DISCUSSION
In his sole issue, Sizemore argues the trial court abused its discretion in excluding his
testimony about the details of two past instances of violent conduct by Weber.
Under the Texas Penal Code, “[a] person is justified in using 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 force.” TEX. PENAL CODE ANN. § 9.31(a)
(West 2011). The Texas Court of Criminal Appeals has held that evidence of an assault victim’s
character for violence may be admitted to show the defendant’s perception of danger was
reasonable based on the victim’s violent character. Mozon v. State, 991 S.W.2d 841, 845 (Tex.
Crim. App. 1999). In Ex parte Miller, 330 S.W.3d 610 (Tex. Crim. App. 2009), the court explained
that when a defendant is charged with an assaultive offense:
[T]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. This is called “communicated
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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. 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. Here, the defendant is not trying to
prove that the victim actually is violent; rather, he is proving his own self-defensive
state of mind and the reasonableness of that state of mind.
Id. at 618-19 (internal citations omitted).
In the present case, Sizemore attempted to present, through his own testimony, specific
instances of past violent conduct by Weber. In a hearing outside the jury’s presence, Sizemore
testified that he was aware of two such instances. First, Sizemore was aware of an act of road rage
which Sizemore characterized as “an assault with a deadly weapon, a vehicle.” Sizemore said he
did not see the road rage incident take place, but he did see the wrecked cars immediately after the
incident. Second, Sizemore testified that Weber had been in a fight with another person in which
Weber “tr[ied] to tear the guy’s eyeballs out of his head.” Other people had to intervene to stop
Weber from killing the other person. Sizemore did not see the fight, but he had heard about it from
other people. The trial court ruled that Sizemore could testify about Weber’s reputation in the
community and that he could testify “generically” about his knowledge of the two incidents.
However, the trial court ruled that Sizemore could not go into specific details of the incidents
because he had no personal knowledge of these details.
On appeal, Sizemore argues the trial court abused its discretion in refusing to allow him to
testify about the “details” of the incidents because he was trying to prove his own self-defensive
state of mind and the reasonableness of that state of mind. Sizemore further argues that the error
was harmful and requires the reversal of his conviction.
We will assume, without deciding, the trial court abused its discretion in excluding the
testimony in question. To warrant reversal of a conviction, however, an error in excluding evidence
must have had a substantial and injurious effect or influence in determining the jury’s verdict.
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Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000); TEX. R. APP. P. 44.2(b) (providing
that nonconstitutional error that does not affect substantial rights must be disregarded). Error does
not affect a substantial right if it does not influence the jury or has only a slight effect. De La O v.
State, 127 S.W.3d 799, 804 (Tex. App.—San Antonio 2003, pet. ref’d). In evaluating the
likelihood that the jury’s decision was adversely affected by the error, we consider everything in
the record, including the testimony presented, the nature of the evidence supporting the verdict,
and the character of the alleged error and how it might be considered in connection with other
evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also
consider the State’s theory, any defensive theories, and closing arguments, if they are material to
our analysis. Morales, 32 S.W.3d at 867.
We now examine the record to determine whether the exclusion of Sizemore’s testimony
about the details of the two incidents had a substantial and injurious effect or influence on the
jury’s verdict. We first note that the excluded testimony was limited in nature. In the hearing
outside the jury’s presence, Sizemore testified that he had seen the cars in the road rage incident
after they were wrecked and that he had heard that Weber was involved in a fight with another
person, that Weber “tr[ied] to tear the guy’s eyeballs out of his head,” and that other people had to
intervene to stop Weber from killing the other person.
Even though Sizemore was not allowed to testify about the details of the road rage incident
in front of the jury, another defense witness was permitted to present this evidence. Brown, who
was a passenger in Weber’s car during the incident, testified in great detail about the road rage
incident and Weber’s involvement in it. As to the second incident, which Sizemore characterized
as a “normal” assault, no other evidence was presented about the details of this incident.
The trial court allowed Sizemore to present other evidence of his self-defensive state of
mind at the time of the shooting. Sizemore testified that in his opinion Weber had a reputation for
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violence and that Weber’s overall reputation in the community was “pretty violent.” Sizemore was
also allowed to testify that he was aware that Weber had committed “an assault with a deadly
weapon, a vehicle” and had been involved in a “normal assault.” In light of all of the testimony
presented, it appears that the jury had ample evidence before it to evaluate the reasonableness of
Sizemore’s belief that he needed to shoot Weber to defend himself.
Additionally, during closing arguments, defense counsel argued that Sizemore acted in
self-defense, that Sizemore had no choice but to shoot Weber, and that Sizemore acted reasonably
under the circumstances. Defense counsel also argued self-defense was the only logical
explanation for Sizemore shooting Weber once rather than multiple times. Defense counsel did
not focus on Weber’s reputation or the incidents of past violent conduct in his closing argument.
In fact, defense counsel made only a single reference to Weber’s reputation in the community for
being a violent person. Defense counsel did not mention the road rage incident or any of the
evidence admitted about it; nor did he mention the “normal assault.”
In conducting our harm analysis, we may also consider the nature of the evidence
supporting the verdict. The evidence showed that three people were present when Sizemore shot
Weber. All three of these people testified at trial. The jury was able to assess the credibility of each
of these witnesses and evaluate their accounts of the shooting. Obviously, the jury believed
Weber’s account of the shooting and did not believe Sizemore and Heilbrun’s accounts. The jury
also viewed photographs of Weber’s bullet wounds and the room where the shooting took place.
Thus, the jury was able to consider Weber, Sizemore, and Heilbrun’s testimony in relation to the
physical evidence. In fact, during closing arguments, the prosecutor emphasized the physical
evidence, especially the entrance and exit wounds caused by the bullet and the trajectory of the
bullet as it traveled through Weber’s body. The prosecutor pointed out that Sizemore and
Heilbrun’s accounts—in which Weber had supposedly lunged at Sizemore with a knife—made no
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sense in light of the photographs showing that the bullet had entered Weber’s body at the base of
his chin and “went straight out” of his body.
We conclude the exclusion of Sizemore’s limited testimony about the road rage incident
had no effect on the jury’s verdict, especially in light of the other evidence presented about the
incident. Furthermore, we conclude the exclusion of Sizemore’s limited testimony about the details
of the “normal assault” had little or no effect on the jury’s verdict. After viewing the record as a
whole, we conclude that the exclusion of the testimony in question did not have a substantial and
injurious effect or influence on the jury’s verdict. See Morales, 32 S.W.3d at 867; TEX. R. APP. P.
44.2(b). We hold that any error in excluding the evidence was harmless.
CONCLUSION
The trial court’s judgment is affirmed.
Karen Angelini, Justice
Do not publish
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