Terrance Derral Cavitt v. The State of Texas--Appeal from 339th District Court of Harris County

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MEMORANDUM OPINION
No. 04-02-00745-CR
Terrance Derral CAVITT,
Appellant
v.
The STATE of Texas,
Appellee
From the 339th Judicial District Court, Harris County, Texas
Trial Court No. 902655
Honorable Caprice Cosper, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: September 3, 2003

AFFIRMED

The sole issue raised by Terrance Derral Cavitt ("Cavitt") in this appeal of his murder conviction is whether the trial court erred in denying his requested instruction for self-defense or justification. We overrule Cavitt's issue and affirm the trial court's judgment.

The victim stopped and purchased cocaine from one of several dealers present in a parking lot. The dealers had agreed that the first dealer to reach a potential purchaser's car window had the right to make the sale. Lewis Mathis, one of the dealers, testified that Cavitt shot the victim because Cavitt was upset that he had not reached the victim's car first and, therefore, did not make the sale. Mathis testified that Cavitt had earlier stated that he would shoot the next person who purchased drugs if Cavitt was unable to make the sale.

Cavitt contends that he was entitled to a self-defense instruction because George Lincoln testified that Cavitt told him that he shot the victim because he thought the victim was trying to rob him. 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). On the other hand, if the evidence, viewed in the light most favorable to the defendant, does not establish self-defense, the defendant is not entitled to an instruction on the issue. Id.

Under section 9.32(a) of the Texas Penal Code, a person is justified in using deadly force against another: (1) if he would be justified in using force under section 9.31, (2) if a reasonable person in the actor's situation would not have retreated, and (3) to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. (1) Tex. Pen. Code Ann. 9.32(a) (Vernon Supp. 2003); Ferrel, 55 S.W.3d at 591. A person is justified in using force under section 9.31 when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Tex. Pen. Code Ann. 9.31(a) (Vernon Supp. 2003); Ferrel, 55 S.W.3d at 591.

In this case, the evidence, viewed in the light most favorable to Cavitt, does not establish that Cavitt was justified in using deadly force. No evidence was presented to show that: (1) the victim used or attempted to use unlawful force against Cavitt; (2) a reasonable person in Cavitt's situation would not have retreated; or (3) Cavitt reasonably believed deadly force was immediately necessary to protect himself. These three required showings cannot reasonably be inferred from Lincoln's testimony that Cavitt thought the victim was trying to rob him. Accordingly, the trial court did not err in denying the requested instruction on self defense, and the trial court's judgment is affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH

1. Deadly force is defined as force that is 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. Tex. Pen. Code Ann. 9.01(3) (Vernon Supp. 2003). Because a firearm is defined as a deadly weapon, Cavitt must show that he was justified in using deadly force. See Tex. Pen. Code Ann. 1.07(a)(17) (Vernon 2003).

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