THE STATE OF TEXAS v. CHARLES WAYNE WARDEN (dissenting)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. PD-1502-10
THE STATE OF TEXAS
v. 
CHARLES WAYNE WARDEN, Appellant 
DISSENT TO REFUSAL TO GRANT APPELLANT'S
PETITION FOR DISCRETIONARY REVIEW 
FROM THE THIRTEENTH COURT OF APPEALS 
CAMERON COUNTY 
Keller, P.J., filed a dissenting opinion in which Cochran, J., joined.

In this murder case, the trial court turned down appellant's request for a jury instruction on self-defense. The court of appeals affirmed, holding that the evidence did not support a rational finding that appellant reasonably believed that the force he used against the victim was immediately necessary to protect himself against the use or attempted use of unlawful force. (1) I think appellant was entitled to a self-defense instruction.

The record includes a DVD of the shooting, taken from an officer's dash camera. Appellant and two others can be seen in a parking lot at night. They appear to be scuffling or pushing each other, but the lighting is insufficient to see exactly what is happening at that point. As the officer's car approaches the men, appellant aims his gun at the men and backs up. One man, Bennett, walks toward appellant as he continues to back up. There is a popping sound. Someone throws a chair at appellant from nearby and it hits him on the arm or shoulder. Bennett continues to walk toward appellant and appellant keeps walking backwards. It appears that appellant then shoots Bennett, who doubles over, then stands up and keeps walking for a few seconds before he falls down. The time from when the camera catches the scuffle until appellant shoots Bennett is about five seconds.

We have said that if a defense is supported by the evidence, a defendant is entitled to an instruction on that defense, even if the evidence supporting the defense is weak or contradicted, and even if the trial court is of the opinion that the evidence is not credible. (2) In Shaw v. State, we also said that the evidence must support a rational finding as to each element of the defense. (3) The court of appeals seems to have construed Shaw in a way that is at odds with our prior pronouncements that the jury determines what (rational) inferences may be drawn from the evidence. I think the error in this case was probably harmless for the very reasons that the court of appeals thought a self-defense finding would be irrational and because the jury's assessment of punishment at sixty-five years indicates a belief that appellant's actions were significantly blameworthy. Nevertheless, on the facts of this case, I believe that the law required that the jury have the opportunity to decide the issue of self-defense.

Perhaps our opinion in Shaw was not as clear as it might have been. I would grant review to clarify matters.

I respectfully dissent.

Filed: February 9, 2011

Do not publish

1. Warden v. State, No. 13-09-00116-CR, slip op. at 12-13 (Tex. App.-Corpus Christi-Edinburg September 16, 2010) (not designated for publication).

2. Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001); see also Shaw v. State, 243 S.W.3d 647, 658 (Tex. Crim. App. 2007).

3. Shaw, 243 S.W.3d at 657-58.