Jimmy Glenn Fisher v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-96-188-CR

JIMMY GLENN FISHER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 95-410-C

O P I N I O N

A jury convicted Jimmy Glenn Fisher of the offense of murder and assessed punishment at sixty years confinement. See Tex. Penal Code Ann. 19.02 (Vernon 1994). Fisher appeals alleging a juror withheld information during voir dire and the evidence is factually insufficient to support the conviction.

Fisher was charged with the murder of his brother-in-law, Ricky Wilkins. The crime occurred on May 9, 1995 in the parking lot of Smoker s Billiards. Fisher and Wilkins had an argument which resulted in Fisher firing his gun and killing Wilkins.

JUROR WITHHOLDING INFORMATION

Fisher contends that he was denied due process when Juror David Lee Maughan withheld information during voir dire. Maughan did not respond when the judge asked the jury panel if anyone knew anything about the facts of the case. Fisher alleges that Roy Alexander, a defense witness, talked with Maughan about the shooting a few days after it occurred. The alleged conversation took place at a convenience store where Maughan was employed and Alexander was a customer.

Fisher filed a motion for mistrial, which the court overruled after a hearing. Maughan testified during the hearing that he recognized Alexander as a customer of his store but did not recall having a conversation with him concerning the shooting. Fisher also claims that Maughan knew and had prior dealings with Fisher that he did not disclose when the judge asked during voir dire if anyone knew Fisher. Maughan testified that he had seen Fisher before at Smoker s Billiards but had never had any conversations with him other than to say hello. Maughan also stated that he did not realize he knew Fisher until the middle of trial when we kept staring at each other throughout the court.

In Von January v. State, the court granted a new trial because a juror failed to disclose during voir dire that he knew family members of the victim. 576 S.W.2d 43, 44 (Tex. Crim. App. [Panel Op.] 1978). In that case, the juror realized he knew the family well yet failed to admit this when questioned by defense counsel during voir dire. In this case, Maughan testified that he did not recognize Fisher as an acquaintance until after voir dire.

Decker v. State closely resembles the facts in the present case. 717 S.W.2d 903, 906-907 (Tex. Crim. App. 1986) (on rehearing). A juror realized after the trial had started that he recognized one of the complaining witnesses. Id. The record showed that the juror did not intentionally give false information during voir dire. Id. Further, the juror was acquainted with the witness through work but did not have a relationship which had any potential for prejudice or bias. Id. The court in Decker found the above facts to be distinguishable from Von January because the juror did not intentionally give false information and no significant relationship existed between the juror and the witness. Id.

Maughan s testimony shows that he did not remember any conversation with Alexander about the facts of the case. Therefore, Maughan did not intentionally withhold or give false information during voir dire when the judge asked if anyone knew the facts of the case. He also testified that he did not realize until after voir dire that he recognized the defendant from Smoker s Billiards. The fact that Fisher had long hair and a beard which he had cut and shaved prior to trial further supports Maughan s testimony that he did not recognize Fisher.

Maughan and Fisher had a casual acquaintance. Fisher testified that he did not recognize Maughan during voir dire. During the trial, they realized they had seen each other at Smoker s Billiards. Clearly, no significant relationship existed between the two men. Therefore, Fisher failed to show that his causal acquaintanceship with Maughan had any potential for prejudice or bias on the part of Maughan. Id.

We overrule the first point of error.

FACTUAL INSUFFICIENCY

Fisher s second point of error asserts that the evidence is factually insufficient to support the conviction in light of his self-defense claim. Fisher alleges that testimony proves Ricky Wilkins was the aggressor who threw a quart of beer at Fisher, leading Fisher to shoot in self-defense.

When presented with a factual insufficiency claim, we discard the prism of the light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We reverse only if [the verdict] is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id.

All of the evidence in the record related to the contested issue is considered. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Evidence which tends to prove the issue is compared with evidence which tends to disprove the issue. Id. We give appropriate deference to the jury s decision and do not substitute our judgment for theirs. Clewis, 922 S.W.2d at 135. We do not set aside the verdict merely because [we] feel that a different result is more reasonable. Id. (quoting Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986)).

The court submitted self-defense in the jury charge. A person is justified in using force against another when and to the degree he reasonably believes force is immediately necessary to protect himself against the other person s use or attempted use of force. Tex. Penal Code Ann. 9.31(a) (Vernon 1994). The use of force is not justified in response to verbal provocation alone or if the actor provoked the other s use or attempted use of force. Id. 9.31(b)(1), (b)(4) (Vernon Supp. 1997). Deadly force may only be used when self-defense is justified under Section 9.31; a reasonable person would not have retreated; and when deadly force is reasonably necessary to protect against another s use or attempted use of deadly force. Id. 9.32(a)(1)-(3)(A) (Vernon Supp. 1997).

We review the record to determine if factually sufficient evidence exists to support the jury s verdict that Fisher did not act in self-defense when he shot Wilkins. The following evidence tends to disprove Fisher s claim of self-defense:

Douglas Markel witnessed the argument and testified that Wilkins was returning to his car when Fisher reached from behind his back and pulled a pistol out. Fisher testified that Wilkins walked back towards his car and he thought he was leaving.

Markel testified that Wilkins said, Jimmy, don t you ever pull a gun on me again. Jimmy responded, You are right Ricky, I won t . Markel then testified that Fisher pointed the gun at Wilkins and the gun made a click.

At this point, Wilkins threw a quart bottle of beer at Fisher. Fisher ducked and was not hit by the bottle. Fisher then fired the pistol at Wilkins who was crouched down beside his car.

Markel testified that Wilkins stood up and Fisher fired a second shot. Markel said Fisher then ran into the building and Wilkins was on the ground.

Fisher testified that Wilkins did not pull anything out of his pocket when he reached in his back pocket.

Other evidence in the record suggests a self-defense claim:

Doug Markel testified that Wilkins got out of the car and walked over to Fisher and Linda Fisher who were arguing about money. Linda Fisher then said that Wilkins and Fisher began arguing and cussing.

Fisher testified that Wilkins said, [H]e was going to get on me or jump on me. Fisher also testified that he had seen Wilkins jump on other people. Fisher then went to his van to get his gun which he tucked in his back pocket.

Fisher said they continued arguing and Wilkins went for his back pocket and told Fisher he was going to kill him. Fisher testified that he then brought out his gun.

Linda Fisher stated that Fisher pulled out his gun and when Wilkins saw it, he said he was going to kill Fisher.

Fisher told Wilkins to leave him alone and Wilkins responded by saying he was going to kill him. Wilkins than began walking toward his own car.

Fisher turned to walk inside but fired a shot into the air when Wilkins cussed at him. Wilkins responded by saying, You are going to kill me now because I m killing you.

Linda Fisher testified that she heard the beer bottle crash and the shot go off.

Jason Chambers, a police investigator, testified that a substantially full quart of beer bottle could cause serious injury or death.

Fisher argues that Wilkins was the aggressor who initiated the confrontation and Fisher was justified in using deadly force because Wilkins threw the quart bottle of beer. Even if Wilkins started the argument, verbal provocation alone does not justify the use of force. Id. 9.31(b)(1). Threats to kill will not justify the use of deadly force unless there is a manifestation of intent to execute such threats. Hughes v. State, 276 S.W.2d 274, 277 (Tex. Crim. App. 1955). Fisher did testify that Wilkins reached for his pocket but did not bring out any weapon. Wilkins might have made verbal death threats but had no instrument to carry out his threats.

Clearly, Wilkins threw the bottle of beer after Fisher brought out the gun. Fisher escalated the incident by pointing the gun at Wilkins. The use of force is not justified when the actor provoked the other s use of force. Id. 9.31(b)(4). Further, after Wilkins threw the beer bottle he had no other weapon to use against Fisher. At this point, Fisher s continued use of deadly force was unreasonable because Wilkins no longer posed a threat. See Id. 9.32(a)(3)(A)

Deadly force can only be used if a reasonable person would not have retreated. Id. 9.32(a)(2). If Fisher believed that Wilkins was going to kill him he could have reasonably retreated into Smoker s Billiards. However, he did not do so.

The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Santellan, 939 S.W.2d at 164. We must give due deference to the jury on these issues. Id. at 166. After reviewing the evidence, we cannot say the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 134. Thus, we overrule Fisher s second point of error.

We, therefore, affirm the judgment.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis

Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed September 24, 1997

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