Sean Devon Clark v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00551-CR
Sean Devon CLARK,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CR-6202
Honorable Mark R. Luitjen, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: August 18, 2004

AFFIRMED

Sean Devon Clark was convicted of murder and was sentenced to forty years imprisonment and a fine of $10,000.00. Clark appeals the judgment, arguing that the evidence is factually insufficient and that the trial court should have instructed the jury on the defensive issue of apparent danger. We overrule both issues and affirm the trial court's judgment.

Background

On August 23, 2001, San Antonio Police Officer Williams Roberts was dispatched to an apartment complex on East Commerce Street. Officer Roberts spoke with Kendra Willis and Ethel Benson, also known as "Sheree." Both women were frightened because a young man by the name of Clark had come to their apartment and made a "terroristic threat." Officer Roberts testified that Kendra told him that Clark had come over earlier and had made sexual advances toward her and that Kendra "slapped his hand after he tried to lift her skirt." At that point, she said Clark "became angry and told her he was going to beat her ass and shoot her." According to Officer Roberts, both women were scared and asked about their rights to self-defense. After speaking with Sheree and Kendra, Officer Roberts drove around the apartment complex looking for Clark but was unable to find him.

About thirty minutes later, Officer Roberts was dispatched to the apartment complex again. Upon arrival, Officer Roberts found that the front door of the apartment was "kicked in." The door frame was broken, and the door had a footprint of a tennis shoe on it. A television had been thrown to the floor, and a picture frame lay broken on the floor. Sheree and Kendra told Officer Roberts they were afraid of Clark and of what he would do to them.

By talking to people at the complex, Officer Roberts discovered where Clark was staying. Officer Roberts went to that apartment and found Clark. Clark was wearing clothes that matched Sheree and Kendra's description. Officer Roberts confiscated Clark's shoes. Although Officer Roberts did not hold them up to the door, he believed that Clark's shoes matched the footprint on the apartment door. According to Officer Roberts, the people at the apartment complex did not want to cooperate with the investigation; he could not find witnesses who would testify that Clark kicked in the door. As such, Officer Roberts gave Clark a criminal trespass warning and released him.

The following day, August 24, 2001, Officer Roberts was again dispatched to the apartment complex. According to Shauntrail Ford's testimony, she, Sheree, and Kendra were coming back to Sheree's apartment from a beauty shop when they ran into Clark walking down a sidewalk of the apartment complex in violation of his criminal trespass warning. On cross-examination, Clark testified that when he ran into Sheree, he had been at a friend's house "on a mission to get some marijuana." Sheree asked him where he was going. Clark responded, "Why, because you got a gun?" According to Clark, Sheree "looked at me kind of the same, like, she gave me a smirk. She looked at me and said, 'Huh, what do you think?'" Then Sheree walked away from Clark and went into her apartment. Clark went to his friend Romeo's apartment. Clark told his friend Romeo what had happened and said that if Sheree brought "a gun out, you know, any shooting that's getting ready to happen, you know, I'm going to need a gun." Romeo went to his room to get a gun while Clark stepped outside.

According to Clark, when he left Romeo's apartment, he saw Sheree from a distance, waving her hands. When he got closer, he saw that Sheree had a gun and was pointing it at him. Clark ducked and then saw Romeo coming out of his apartment. He yelled at Romeo to throw him the gun. Romeo threw the gun to Clark, and Clark "took off running."

According to Shauntrail Ford, after her encounter with Clark, Sheree went into her apartment. Five minutes later, she came out with a gun in her hands. Sheree and Clark started talking again, calmer than before. According to Shauntrail, Clark appeared more surprised than frightened. Clark then ran across the street. Shauntrail heard "someone say something about the gun, getting their gun, you know." In her statement to the police, Shauntrail said that it was Clark who said he was going to go get a gun. Shauntrail saw Clark run into Romeo's apartment. Shauntrail and Romeo, Shauntrail's ex-boyfriend, began talking at the bottom of the stairs to Romeo's apartment. Shauntrail saw Sheree across the way kneeling on stairs leading to another apartment, pointing the gun. According to Shauntrail, Clark was still in Romeo's apartment. Shauntrail then left the area of Romeo's apartment because she "knew they were probably about to start shooting soon." She thought that Clark was indeed getting his gun. Soon thereafter, she saw Clark running with the gun.

Arggie Ford, Shauntrail's younger sister who was also present, testified that when Sheree came out of the apartment with a gun, Clark and Sheree exchanged words and "he asked [Sheree] if they wanted to shoot, and she said, 'Well, whatever.'" According to Arggie, Sheree's mannerism at that point was saying "[w]ell, go get your strap." Arggie testified that after Clark ran off and was out of sight, Sharon Hall, Sheree's downstairs neighbor, told Sheree to be careful because children were present. Sheree responded, "F that, he wants to kill me, so I want . . . [I'm] going to have to do something about it." At that time, Arggie and Sheree started walking up the stairs and Sheree had her gun pointing down. They stopped on the porch, in front of Sheree's door, and Arggie had her arm around Sheree in an attempt to calm Sheree down. Suddenly, Sheree arched her back, "her head flew and then she hit the ground." Arggie testified that there had been no warning from Clark before he started shooting. Clark did not try to get their attention nor did he call out anyone's name. When Sheree fell, Arggie saw Clark running off.

Clark testified to a different version of the incident. According to Clark, when he saw Sheree with a gun, he ran to his friend Romeo's apartment for safety. However, because children were there, Romeo did not allow him to stay in the apartment. Clark felt "having the gun was [the] safest thing in that situation." When asked why he believed having the gun was the safest thing, Clark responded, "[W]ell, I was looking - after the gun was pulled on me, I'll say, it was like a protection, like - like a protection, you know, like it felt safe. Then being without one, I just bound being shot. I didn't know her intentions, but I felt her intentions were - was - that's why I felt the way I felt." After he got the gun from Romeo, Clark decided to run to the apartment of his other friend Pete. Clark admitted that he was aware that there were many exits out of the complex which he could have used to retreat. However, he testified that at that moment, he felt it was better to go to Pete's residence. According to Clark's testimony, he was running behind Sheree's apartment towards Pete's place when he heard his friend Siobhan give him a warning. Clark turned around, and saw Sheree with a gun. Their eyes met and that was when he fired those four lethal shots.

On direct examination, when Clark was asked to describe the warning that his friend gave him that led him to believe he was in immediate danger, Clark testified,

Well, when I came around the building . . . I see Siobhan, I'm running, and Siobhan, she's, like, when I get, like, right there getting ready to turn into the breeze way - I'm between Sheree's breezeway and I'm between Pete's breezeway - and when I run and I hit the corner and I'm running, Siobhan, she tells me - she tells me, she goes - she's, like, watching. She didn't want to scream, "Watch out", but she is like, "Watch out." And that right there, it kind of put the - she said, "Watch out", and she looked up. And that told me that [Sheree] was on the balcony now. To watch out, I really didn't understand whether it was a watch out - if it was a watch out for being - like, if it was a, "Don't go", or if it was a, "Watch out she's getting ready to shoot you, or She's behind you." That's the kind of watch out. I mean, I really didn't have time to vouch between that, you know. I'm thinking right now she's got this gun and she's pointing it at me. She's going to get me, so- After the shooting, the police arrived at the scene and were directed by some witnesses to where Clark was hiding. The officers found Clark inside the closet of one of the apartments and his gun underneath the bed. One of the detectives took a statement from Clark, in which Clark admitted shooting Sheree but claimed he did it in self-defense: "When I hit the corner, she was up there with the gun and she turned toward me. I shot three or four times."

Sheree died from multiple gun shot wounds soon thereafter. She had gunshot wounds to her forehead, her back, and her lower left leg.

Factual Insufficiency

In his first point of error, Clark argues that the evidence is factually insufficient to support the conclusion that he had the specific intent to cause the death of, or serious bodily injury, to Sheree or that he acted intentionally or knowingly. Specifically, Clark argues that it was Sheree who was the aggressor and not him, beginning with the incident between him, Sheree and Kendra. As such, he was just acting in self-defense. Thus, according to Clark, the evidence is factually insufficient to support the jury's rejection of his defense.

In Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991), the court of criminal appeals explained the burden involved in a defense under section 2.03 of the Penal Code and the proper analysis under a legal sufficiency challenge. The court said that a defendant bears the burden of production, which requires the production of some evidence that supports the particular defense. Id. at 913. Once the defendant produces such evidence, the State then bears the burden of persuasion to disprove the raised defense. Id. at 913-14. The burden of persuasion is not one that requires the production of evidence, rather it requires only that the State prove its case beyond a reasonable doubt. Id. at 913. When a jury finds the defendant guilty, there is an implicit finding against the defensive theory. Id. at 914. Therefore, when a defendant challenges the factual sufficiency of the rejection of a defense, we review all of the evidence in a neutral light and ask whether the State's evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003).

In support of his argument, Clark points to his own testimony (1) showing Sheree's "increasingly aggressive behavior" in the days leading to the shooting on Friday, August 24, 2001. According to Clark's testimony, on Wednesday, he was with Kendra when she accidently broke the chain Sheree had given her. When Kendra told Sheree about the broken chain, Sheree accused Clark of breaking the chain:

Sheree came outside and she was asking me why I broke her chain. I told her it wasn't me. Sheree told me she had something for all that. Kendra came down and pushed me and I pushed Kendra. Sheree jumped in front of me and told me "Bitch, hit someone your own size" so I hit her. She told me, "Alright, I am gonna get you."

Then, according to Clark, on Thursday, Sheree accused him of a burglary and had him apprehended. That night, Clark learned from Sheree's cousin that "she is crazy and takes pills, you know what I'm sayin." On Friday, Clark learned that Sheree had gotten a gun:

Arge is walking about five steps in front of Sheree. Arge says to me, you know what I'm sayin, Sheree got a gun. Sheree asked me where I was about to go and I told her I was going to the back of the apartments. I asked her why, is it because you had a gun now, you know what I'm sayin. She turned around and smiled and walked up her steps. I turned around and ran back to my homeboy's house, Romeo. I told him that if Sheree was going to be shooting at me to give me a gun. I turned around and walked down the stairs. Romeo's building is next to her building. When I got to the second step, I saw a girl named Siobhan and her little brother. She was waving for me to stop and she was pointing to Sheree's breezeway. When I walked down, I looked to my left and I saw Sheree at the bottom of the steps. She was pointing a gun at me. She was scoping me. It was a rifle. I turned around and Romeo was walking out of the house. I told him to give me the gun and he threw the gun to me. It was a black .22 rifle. You cock it and shoot. I started running on the side of the building. When I hit the corner she was upstairs with the gun and she turned toward me. I shot three or four times. I was walking between two buildings by the breezeways. When she turned around with the gun in her hand I just opened fire. I was scared and I went to the back of the apartments.

Thus, according to Clark, the evidence shows that he was merely protecting himself and that Sheree was the aggressor.

Other witnesses, however, testified that even a few days prior to the shooting, Clark had made numerous threats against Sheree and Kendra, claiming that he would beat and shoot them. According to Officer Roberts's testimony, both women were very frightened and concerned about their safety. At trial, Sharon Hall, Sheree's neighbor, testified that Clark and Sheree were having problems, and that she had witnessed Clark slapping Sheree a few days before the shooting. Indeed, Clark admits in his statement to having hit Sheree. Sheree also told Sharon Hall that Clark had said "he was going to shoot [Sheree] in [her] face." All of this evidence shows that Sheree was very concerned about Clark's threats and behavior.

Clark also points out that Sheree did not call the police about Clark's trespassing, but pulled out her gun, showing that she was the aggressor. Sheree, however, had called the police twice the day before, and Clark had already been given a criminal trespass warning, which he violated on the day of the murder. The first time Sheree called the police, she complained about the verbal threats made to her by Clark. The second time she called the police, about thirty minutes later, Officer Roberts reported signs of property damage. And, on the day of the murder, Sheree did not chase Clark with the gun around the complex, but throughout the entire incident remained on the stairway of her apartment. In fact, Arggie Ford testified that at the time of the shooting, Sheree had gone upstairs and had her gun pointed down toward the ground. Sheree was not pointing a gun at anyone, let alone Clark. Both Arggie and Sheree were standing with their backs towards Clark. Arggie had her arm around Sheree, and they did not even know Clark was there. Clark's shots were sudden and unexpected to both Sheree and Arggie. Moreover, when Clark was asked on cross-examination exactly what kind of warning his friend gave him that made him turn around and shoot, Clark was unable to describe exactly what his friend had said or did. Thus, the jury could have disbelieved Clark's testimony and instead believed Arggie Ford's testimony

In addition, Clark argues that the only reason he shot Sheree four times was because he was afraid for his life and thought that Sheree was going to kill him. However, Clark testified that when a friend told him that he should be careful coming over because Sheree had a gun, Clark said he did not care:

[Arggie] said, "Oh, watch out" - she said, "Oh, I've got to tell you fool, watch out." You know what I'm saying? Sheree's got a gun upstairs. And I told her that I don't care. She was like, I'm telling you this because the gun is big. And there was a stick laying on the ground, she says, "It's bigger than the stick right there." And I still didn't care.

Indeed, Shauntrail Ford testified that when Sheree first came out with the gun, Clark was not scared. If anything, he was surprised. After the shooting, an evidence technician that performed a gunshot residue test on Clark, testified that Clark did not seem to be scared, but had a cocky attitude about the incident. This evidence contradicts Clark's position that he was very scared and worried for his life.

Moreover, Clark could have retreated. Clark had lived in that apartment complex for about two years and was very familiar with it. He admitted that he knew about exits from the apartment complex. Yet, he did not leave the apartment complex. He remained on the scene. When Sheree had her gun outside, Clark did not attempt to retreat and inform the police about the situation but instead, he went back to Sheree's apartment. At no point did Clark attempt to call the police.

In reviewing the record, we hold that the evidence is factually sufficient to support Clark's conviction.

Apparent Danger

In his second point of error, Clark argues that the trial court committed harmful error in refusing his requested instruction on the defensive theory of apparent danger. Clark argues that even though Sheree had a rifle, he was entitled to the apparent danger instruction because of the conflicting theories as to whether Clark was actually in danger at the time of the shooting. Clark emphasizes that the State's argument is based on the proposition that Clark was not in actual danger because he shot Sheree in the back while she was talking to a friend. Even though the jury was given an instruction on the actual danger defense, Clark argues that it should have also received a separate instruction on apparent danger.

Self-defense is a justification for otherwise unlawful conduct. See Giesberg v. State, 984 S.W.2d 245, 249 (Tex. Crim. App. 1998). A defendant is "justified in using force against another 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. 2004). A person also has the right to defend against apparent danger to the same extent as if the danger was real. Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996).

In support of his argument that there should have been a separate instruction on apparent danger, Clark relies on Torres v. State, 7 S.W.3d 712 (Tex. App. Houston [14th Dist.] 1999, pet. ref'd). In Torres, the court of appeals held that actual danger was not the only evidence presented at trial; the parties' testimony also raised the issue of apparent danger. Id. at 714. As such, the trial court erred in omitting instruction on apparent danger. Id. Furthermore, the court rejected the State's argument that the self-defense instruction encompassed apparent danger:

We can find no case law supporting the State's argument that the standard charge on self-defense encompasses apparent danger. (2) Instead, there are multiple cases where the jury charge included apparent danger and regular self-defense. See, e.g., Reaves v. State, 970 S.W.2d 111, 117 (Tex. App.--Dallas 1998, no pet.); Mata v. State, 939 S.W.2d 719, 723 (Tex. App.--Waco 1997, no pet.); Simms v. State, 905 S.W.2d 720, 726 (Tex. App.--Texarkana 1995, no pet.). We thus reject the State's argument.

Id. at 715.

The Torres court, however, failed to note the court of criminal appeals's opinion in Valentine v. State, 587 S.W.2d 399 (Tex. Crim. App. 1979). In Valentine, the court of criminal appeals held that an additional charge on apparent danger is not required where "reasonable belief" has been properly defined. Id. In doing so, it distinguished its facts from those in Jones v. State, 544 S.W.2d 139 (Tex. Crim. App. 1976). The Valentine court noted that in Jones, the court instructed the jury that the defendant would be justified in killing the deceased if "at the time he did so, the [deceased] was using or attempting to use unlawful deadly force against the defendant . . ." Valentine, 587 S.W.2d at 401 (emphasis and alteration in original). The Valentine court noted that this charge in Jones was "held to be inadequate because it required the jury to find, or have a reasonable doubt thereof, that at the time he was shot, the deceased was actually using or attempting to use unlawful deadly force against the defendant." Id. (emphasis in original). Thus, the Valentine court noted that in Jones, it held that where the evidence raises the issue of apparent danger, the court, in instructing the jury on the law of self-defense, should instruct the members of the jury that a person 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 from his standpoint at the time." Id. (quoting Jones, 544 S.W.2d at 142).

The Valentine court then noted that unlike Jones, the court "in the present case instructed the jury that the appellant's conduct would be justified if the appellant reasonably believed that the deceased was using or attempting to use unlawful deadly force against her at the time of the shooting." Id. The Valentine court explained:

By defining the term "reasonable belief" as it did, (3) the court instructed the jury that a reasonable apprehension of danger, whether it be actual or apparent, is all that is required before one is entitled to exercise the right of self-defense against his adversary. Furthermore, we observe that the court's charge is in accordance with sections 1.07(31), 9.31, and 9.32 of the Penal Code, all of which adequately presented the appellant's defensive theory and protected her rights. Appellant's contention is overruled.

Id. (citations omitted).

Here, the jury was instructed the following:

A person is justified in using force against another 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.

A person is justified in using deadly force against another if he would be justified in using force against the other as above stated, provided a reasonable person in his situation would not have retreated, and when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other's use of attempted use of unlawful deadly force.

"Reasonable belief" means a belief that would be held by an ordinary and prudent person in the same circumstances as the defendant.

As in Valentine, by defining the term "reasonable belief" as it did, the court instructed the jury that a reasonable apprehension of danger, whether it be actual or apparent, is all that is required before one is entitled to exercise the right of self-defense against his adversary. See Valentine, 587 S.W.2d at 401; Richardson v. State, 906 S.W.2d 646, 650 (Tex. App.--Fort Worth 1995, pet. ref'd); Venegas v. State, 660 S.W.2d 547, 551 (Tex. App.--San Antonio 1983, no pet); Price v. State, No. 2-02-268-CR, 2003 WL 1351991, at *1 (Tex. App.--Fort Worth Mar. 20, 2003, pet. ref'd) (not designated for publication). We, thus, conclude that the court's charge adequately presented Clark's defensive theory and protected his rights. We overrule Clark's final issue.

Conclusion

Having overruled all issues, we affirm the judgment of the trial court.

Karen Angelini, Justice

Do not publish

1. Clark points to his testimony at trial and a statement he made to police on August 24, 2001 that was admitted in evidence as State's Exhibit 25.

2. The standard self-defense charge generally tracked the language of section 9.31 of the Texas Penal Code.

3. "Reasonable belief" was defined as belief that would be held by an ordinary and prudent person in the same circumstances as the defendant.