DONALD LYNN MOORE, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed November 3, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-01003-CR
............................
DONALD LYNN MOORE, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F08-45322-TK
.............................................................
OPINION
Before Justices FitzGerald, Murphy, and Fillmore
Opinion By Justice Fillmore
        A jury convicted Donald Lynn Moore of murder and assessed punishment at eighty years' imprisonment. In one point of error, Moore asserts the trial court erred by not including a self- defense instruction in the charge. We affirm the trial court's judgment.
Background   See Footnote 1 
 
        Moore shot Ivory Roche in the parking lot of the Toscana Palm Apartments. An autopsy determined Roche had been shot six times and died from his wounds.
        Damon Edwards testified that he, Roche, and Wayne Briscoe were drinking beer and alcohol beside Edwards's Ford Expedition when a woman approached the apartment complex. Briscoe started “flirting” with the woman, and she talked to Briscoe for five or ten minutes before going upstairs to a third-floor apartment. Telena Pedford testified she was sitting on her patio in the Toscana Palm Apartments when she saw Moore and a woman get out of a car. Moore went inside the apartment complex while the woman retrieved some bags from the car. Pedford testified Roche said something “flirtatious” to the woman.
        Edwards testified that after the woman entered the apartments, she came out onto a third- floor balcony with another woman. The two women continued to talk to Roche and Briscoe. Moore came out onto the balcony and asked Roche and Briscoe to leave the two women alone. Moore then came downstairs. Pedford confirmed Moore came downstairs and asked the men in the parking lot something to the effect of why they were “disrespecting him.” Edwards testified he approached Moore and said that he would talk to Roche and Briscoe and make sure there was “no more disrespect” of Moore or the two women. Edwards testified Moore then walked away.
        Edwards, Roche, and Briscoe walked to the front of the Expedition and continued to drink. According to Edwards, Moore returned after a few minutes and approached the three men with his right hand in his back pocket. As Moore approached the three men, he asked, “What's up now with y'all?” Edwards asked Moore what he was “talking about,” and Moore was “up with his pistol.” Edwards asked Moore what he was doing and told Moore the situation was not that serious. Moore brushed Edwards to the side, and Roche and Briscoe started running. Briscoe ran into the apartment complex, and Roche ran around the Expedition.
        Moore began shooting at Roche. Pedford confirmed Moore shot two or three times at a man in front of the car. Edwards testified Moore chased Roche around the Expedition twice while shooting at him. Roche fell to the ground on the passenger side of the Expedition. Edwards saw Moore “stoop over” and shoot Roche two or three times.
        Vincent Williams testified he was in a third-floor apartment at the Toscana Palm Apartments when he heard two gun shots. Williams went to the back door of the apartment. The girl on the balcony next door was yelling that “he didn't say anything.” Williams saw a man chasing another man around the Expedition. The second man was shooting at the first man. Williams saw the first man fall to the ground. The second man ran up and shot the first man in the head.
        According to Edwards, neither he, Briscoe, nor Roche had a gun, and no one fired a shot at Moore. Further, none of the three men threatened Moore. Edwards testified the men “never really argued” with Moore and he did not know what had provoked Moore's actions. Pedford testified she did not see that the “guy who got shot” had a weapon. She did not see anyone other than Moore with a gun and did not hear any shouting or threats. According to Williams, the man being chased did not have a weapon.
        Moore's version of the confrontation differed significantly from that of the other witnesses. Moore testified that he got a call from a “female” who told him some men in the parking lot were “flirting” with her. She “turned the men down,” and the men started calling her names. Moore went to investigate the problem. He stepped out onto the balcony and told the men to quit talking to and “hollering at” the woman. He went downstairs because the men were acting as if they could not hear him and so that he could hear what the men were saying.
        Moore had a gun when he went downstairs. Moore testified he had been convicted of a felony, misprision of felony, in 2005 and knew he was not allowed to carry a weapon. Although he was breaking the law, he was carrying the gun for his protection.
        According to Moore, he told Roche “in no disrespectful way” to quit talking to his “female” the way he was talking to her and to leave the woman alone. Moore testified Roche was trying to let him know that “she was talking back to [Roche] and this and that.” Roche was intoxicated and looking at Moore in a strange way, and Moore did not know if Roche was trying to escalate the situation. Moore told Roche's friend that he did not come down for a problem.
        Moore testified he walked off to go to another residence and then “turned around to tell the female do not be calling me over because I almost got into a situation with these dudes.” As Moore walked back towards the “female's” house, Roche said something else to Moore. Moore started walking towards the three men. Edwards got between Moore and the other two men and said, “Man what's up. I got it. Just don't worry about it.” Moore responded, “Man, what you say?” According to Moore, Roche pulled out a gun. Moore then pulled out his gun. Roche fired two times. Moore recalls firing his gun one time. Moore recalls nothing further until he came “to his right state of mind” on the corner of the street.
        Vicki Hall, a trace evidence examiner at the Southwestern Institute of Forensic Sciences, testified she found two gunshot particles on the back of Roche's right hand. According to Hall, the presence of gunshot residue indicates Roche fired a gun, had his hand in close proximity to a discharging gun, or handled a gun or a component of a gun. Hall testified that “close proximity” would be three to five feet from the gun. Andrea Lewis-Krick, a crime scene analyst for the Dallas Police Department, testified gunshot residue could be present on Roche's hand due to Roche handling or firing a weapon or being in close proximity to a weapon that has been fired.
        Moore requested that the jury be charged on self-defense. The trial court denied the request.
 
 
Analysis
 
        In his sole point of error, Moore contends the trial court erred by not including a self-defense instruction in the charge. In determining whether there is jury charge issue, we first decide whether error exists. Sakil v. State, 287 S.W.3d 23, 25 (Tex. Crim. App. 2009). If we find error, we then engage in a harm analysis. Id. at 25-26.
        A person is justified in using deadly force against another when and to the degree the actor reasonably believes deadly force is immediately necessary to protect the actor against the other's use or attempted use of unlawful deadly force. Tex. Penal Code Ann. §§ 9.31(a), 9.32(a) (West Supp. 2010). However, the use of force is not justified under certain circumstances. Id. § 9.31(b). Specifically, as relevant here, the use of force against another is not justified if the actor sought an explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was carrying a weapon in violation of section 46.02 of the penal code. Id. § 9.31(b)(5)(A). A person violates section 46.02 if the person intentionally, knowingly, or recklessly carries on or about his person a handgun and the person is not on his own premises or premises under his control or inside of or directly en route to a motor vehicle that he owns or is under his control. Tex. Penal Code Ann. § 46.02(a) (West Supp. 2010).   See Footnote 2 
        A defendant is entitled to an instruction on self-defense if the issue is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense. Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001). A defensive issue may be raised solely by the defendant's testimony. Elmore v. State, 257 S.W.3d 257, 259 (Tex. App.-Houston [1st Dist.] 2008, no pet.). Generally, issues such as whether the defendant carried a gun to a discussion are fact issues and are included in the jury's charge as limitations to self-defense. Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984); Williams v. State, 35 S.W.3d 783, 785-86 (Tex. App.-Beaumont 2001, pet. ref'd). However, if the evidence, viewed in the light most favorable to the defendant, establishes as a matter of law that force was not justified, the defendant is not entitled to an instruction on the self-defense issue. Ferrel, 55 S.W.3d at 591; Dyson, 672 S.W.2d at 463; Elmore, 257 S.W.3d at 259. Specifically, a defendant is not entitled to a self-defense instruction if the evidence is undisputed that force was not justified as a matter of law because of the applicability of section 9.31(b)(5)(A) of the penal code. Williams, 35 S.W.3d at 786; see also Davis v. State, 276 S.W.3d 491, 499 (Tex. App.-Waco 2008, pet. ref'd) (defendant not justified in using force as matter of law when he sought interaction with victim while illegally carrying a handgun); Elmore, 257 S.W.3d at 259 (defendant not entitled to self-defense instruction because evidence established as matter of law that defendant confronted victim about prior disagreements while carrying gun in violation of former section 46.02 of penal code).   See Footnote 3 
        Moore testified that Roche had a gun and fired first. Hall testified she found gunshot residue on the back of Roche's right hand. Hall and Lewis-Krick testified the gunshot residue could be from Roche firing or handling a gun or being in close proximity when a gun was fired. This testimony could be sufficient to raise the issue of self-defense in a proper case. However, the undisputed evidence was that Moore approached Edwards, Roche, and Briscoe in the parking lot seeking a discussion with the men about their differences over comments made to Moore's “female.” Moore admitted he illegally carried a gun to this discussion. See Tex. Penal Code Ann. § 46.04 (West Supp. 2010) (person who has been convicted of a felony commits an offense if he possesses a firearm after conviction and before the fifth anniversary of the person's release from confinement or supervision). Further, Moore testified he was returning to the “female's” apartment when the shooting occurred. Therefore, he was neither on premises he owned or controlled nor en route to a vehicle he owned or controlled. See Tex. Penal Code Ann. § 46.02(a); Fink v. State, 97 S.W.3d 739, 743-44 (Tex. App.-Austin 2003, pet. ref'd).
        Moore's actions fit squarely within section 46.02(a) of the penal code. See Davis, 276 S.W.3d at 499. Accordingly, as a matter of law, Moore was not justified in using deadly force. See Ferrel, 55 S.W.3d at 591; Elmore, 257 S.W.3d at 269. The trial court did not err by refusing to instruct the jury on the issue of self-defense. We overrule Moore's sole point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          ROBERT M. FILLMORE
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
091003F.U05
 
Footnote 1 Because Moore has not challenged the sufficiency of the evidence to support the conviction, we recite only those facts necessary to address his point of error on appeal.
Footnote 2 In this case, there is no issue regarding the applicability of section 46.02 of the penal code. See Tex. Penal Code Ann. § 46.15 (West Supp. 2010) (listing circumstances under which section 46.02 does not apply).
Footnote 3 See also Casares v. State, No. 1888-03, 2005 WL 77049, at *3 (Tex. Crim. App. Nov. 17, 2004) (not designated for publication ) (“We conclude that the record establishes that, while carrying a weapon in violation of § 46.02, appellant sought an explanation from or discussion with the complainant concerning appellant's differences with him and others. Pursuant to the explicit terms of § 9.31(b)(5), the use of force for self-defense was not justified, and appellant was not entitled to his requested jury instruction.”).