Randall William Lorentz v. The State of Texas--Appeal from 379th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00924-CR
Randall William LORENTZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 379th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CR-5144
Honorable Pat Priest, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: February 25, 2004

AFFIRMED

Randall William Lorentz was convicted of aggravated assault and sentenced to six years in prison for allegedly stabbing a man five times during a barroom fight. He argues on appeal that the trial court erred in failing to submit a jury instruction on self-defense with deadly force. We affirm the judgment of the trial court.

Self-Defense

It is well established that a defendant has the right to a jury instruction on any defensive issue that has been raised by the evidence, regardless of whether the evidence is weak or strong, unimpeachable or contradicted, and regardless of what the trial court may think about its credibility. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). On the other hand, if the evidence, viewed in the light most favorable to the defendant, fails to raise a defensive issue, the defendant is not entitled to an instruction on the issue. Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001).

A defendant requesting an instruction on self-defense with deadly force must show: (1) he was justified in using force; (2) a reasonable person in his situation would not have retreated; and (3) he reasonably believed the use of deadly force was immediately necessary to protect himself against another's use or attempted use of unlawful deadly force, or to prevent the imminent commission of specified violent crimes. Tex. Pen. Code Ann. 9.31, 9.32 (Vernon Supp. 2003); Flores v. State, 49 S.W.3d 29, 34 (Tex. App.--San Antonio 2001, pet. ref'd). In the absence of the use or attempted use of deadly force by the victim, a section 9.32 instruction is not available to the defendant. See Werner v. State, 711 S.W.2d 639, 644 (Tex. Crim. App. 1986) (holding that in the absence of the use or attempted use of deadly force by the deceased, a section 9.32 instruction is not available to the defendant).

Here, Lorentz argues that the testimony of Patricia Johnson justifies an instruction on self-defense with deadly force. We disagree. Johnson testified that Lorentz was sitting at the bar when the victim, who was much larger in size than Lorentz, walked up to Lorentz. The victim "got his left arm around [Lorentz's] neck, pulled it and, of course, the stool plugged to the ground and I think the one next to it went to the ground also." Lorentz and the victim wrestled on the ground until they were pulled apart. After they had been pulled apart, Johnson learned that the victim had been stabbed. She then observed (after the fight) that Lorentz's face was "white," that "he was shaking," and that he looked sick or like he might "have a heart attack." She also testified that he looked "scared to death" when he was being pulled to the ground.

The fact that Lorentz appeared scared during or after the fight is not evidence that he reasonably believed that use of deadly force was immediately necessary to protect himself against the victim's use or attempted use of unlawful force. See Broussard v. State, 809 S.W.2d 556, 559 (Tex. App.--Dallas 1991, pet. ref'd) ("An individual has a right to defend from apparent danger to the same extent as he would had the danger been real; provided he acted upon a reasonable apprehension of danger as it appeared to him at the time."). Nor does Johnson's testimony provide evidence that the victim used or attempted to use deadly force. Werner, 711 S.W.2d at 644. Accordingly, the trial court did not err in failing to instruct the jury on this issue.

Conclusion

We overrule Lorentz's sole issue and affirm the judgment of the trial court.

Karen Angelini, Justice

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