Richard Anthony v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00216-CR
Richard ANTHONY,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CR-4920
Honorable Mark R. Luitjen, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: March 12, 2003

AFFIRMED

Defendant Richard Anthony, Jr. was convicted of murder and sentenced to fifty years' imprisonment. In four issues on appeal, defendant argues the following: the trial court erred in its instruction on the issue of self-defense; the trial court abused its discretion by failing to charge the jury on lesser-included offenses; the trial court abused its discretion in denying his right to cross- examine two of the State's witnesses; and the trial court erred in refusing his request to make an offer of proof. Because all issues of law are settled, our opinion only advises the parties of the court's decision and the basic reasons for it. See Tex. R. App. 47.4. We affirm.

Instruction on Self-Defense

In his first issue, defendant complains that the trial court erred when it instructed the jury on the issue of self-defense. Specifically, defendant points to the following language in the definition portion of the jury charge:

In determining the existence of real or apparent danger, you should consider all the facts and circumstances ... together with all relevant facts and circumstances going to show the condition of the mind of the defendant at the time of the occurrence in question. In considering such circumstances, you should view them as a reasonable person in the defendant's position at the time and from that standpoint alone.

Defendant insists that it was erroneous for the trial court to include the words "reasonable person" in this part of the definition because the reasonableness of his belief is to be determined by an "ordinary and prudent person" standard and not a "reasonable person" standard.

When reviewing charge error, we must first determine whether error actually exists in the charge. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984); Irizarry v. State, 916 S.W.2d 612, 614 (Tex. App.--San Antonio 1996, pet. ref'd). In determining whether charge error exists, we must view the charge as a whole rather than isolated statements or parts of the charge standing alone. Holley v. State, 766 S.W.2d 254, 256 (Tex. Crim. App. 1989); Washington v. State, 930 S.W.2d 695, 698 (Tex. App.--El Paso 1996, no pet.). Then we must determine whether sufficient harm resulted from the error to require reversal. See Almanza, 686 S.W.2d at 171; Irizarry, 916 S.W.2d at 614.

Here, we hold defendant's contention cannot succeed. The self-defense statute permits the use of deadly force to the degree a person reasonably believes it is immediately necessary and if a reasonable person in the actor's situation would not have retreated. Tex. Pen. Code Ann. 9.31, 9.32 (Vernon Supp. 2003). A "reasonable belief" is one that would be held by an "ordinary and prudent man in the same circumstances as the actor." Id. 1.07(42). "Although the test assumes that a defendant may act on appearances from his stand point, the test also assumes the 'ordinary prudent man test of tort law.'" Werner v. State, 711 S.W.2d 639, 645 (Tex. Crim. App. 1986). In other words, the definition of "reasonable belief" is the codification of the usual definition of reasonableness. Williams v. State, 630 S.W.2d 640, 643 (Tex. Crim. App. 1982). "Consonant with that definition, 'ordinary standards of reasonableness' may be defined as the standards that an ordinary and prudent person would apply to the circumstances that the actor faced." Id. Therefore, encompassed in the self-defense instruction is the necessity to find that a person held a reasonable belief or acted as a reasonable person, which is not entirely a subjective standard. Accordingly, including the phrase "reasonable person" in the definition on real and apparent danger was not error. Defendant's first issue is overruled.

Failure to Include Lesser Included Offenses

Defendant contends the trial court erred in denying his motion for new trial in which he complained that the court failed to charge the jury on lesser included offenses. However, in order to preserve a claim of error for appellate review in a criminal case, the complaining party must make a timely and sufficiently specific objection or request and must comply with the requirements of the Texas Code of Criminal Procedure. Tex. R. App. P. 33.1(a)(1). In order to properly object to the court's proposed charge or request that a particular instruction or question be included in the charge, the defendant must make a written objection or request. Tex. Code Crim. Proc. Ann. arts. 36.14, 36.15 (Vernon Supp. 2003); Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim. App. 1996). The requirement that the objection or request be in writing is met if it is dictated to the court reporter in the presence of the court and the State's counsel. Id. arts. 36.14, 36.15; Ford v. State, 38 S.W.3d 836, 841 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd). Here, defendant did not object to the charge during trial or request an instruction. Instead, he raised the issue for the first time in his motion for new trial. Because this was insufficient to preserve error on his jury charge complaint, we overrule defendant's second issue.

Right to Cross-Examination

Defendant contends that the trial court abused its discretion when it denied his constitutional right to cross-examine two of the State's witnesses. The determination of the scope of cross examination and relevancy are within the control of the trial court in the exercise of its sound discretion. Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993). We review the trial court's decision to exclude evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996). An abuse of discretion occurs when the trial court acts without reference to any guiding principles or rules. See Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991) (op. on reh'g).

Here, we hold defendant's complaints are without merit. Defendant was allowed to cross-examine, at length, the two state witnesses, Julian Ramirez and Detective Raymond Roberts. Defendant contends that his right to cross-examine these witnesses was denied because the trial court sustained the State's objections based on its arguments that defense counsel was testifying and the question asked was irrelevant. After reviewing the record, we hold that the trial court did not abuse its discretion in sustaining those objections. Accordingly, we overrule defendant's third issue.

Right to Offer of Proof

In his final issue, defendant contends the trial court erred in denying his request to make an offer of proof. Specifically, defendant argues he attempted to make an offer of proof regarding the testimony from Detective Roberts, which was excluded when the trial court sustained the State's relevance objection, but the trial court denied him an opportunity to do so.

It is true that a party has an absolute right to make an offer of proof. See Kipp v. State, 876 S.W.2d 330, 333 (Tex. Crim. App. 1994). However, it is unclear from the record that defense counsel intended to make such an offer before the trial court. After the trial court sustained the State's objection, defense counsel asked the court to excuse the jury. The trial court denied that request and defense counsel then stated that he had a duty to address the record, and the court again told him to continue with his cross-examination.

Even if the trial court had erred in refusing defense counsel's attempt at an offer of proof, such error is subject to a harm analysis. Tex. R. App. P. 44.2; see Williams v. State, 964 S.W.2d 747, 753 (Tex. App.--Houston [14th Dist.] 1988, pet. ref'd). Here, to show harm, defendant argues that because he was not allowed to cross-examine Detective Roberts regarding his questioning of a State's witness, he was prohibited from demonstrating that the witness was reluctant to cooperate with the police. Defendant insists that from the testimony he intended to elicit, it could be inferred that a witness who is pressured to cooperate "may well be pressured in the contents of their cooperation, as well." However, defendant never attempted to question Detective Roberts about pressuring the witness; he only asked him whether he had problems contacting the witness and whether the witness kept the appointments made with the detective. When the trial court sustained the objection based on relevance, defense counsel explained that his questions were relevant to the credibility of the witness. After considering defendant's arguments and the record, we conclude that any refusal to make an offer of proof was harmless. Accordingly, we overrule defendant's fourth issue.

Failure to Instruct on Extraneous Offenses

In a supplemental issue, defendant complains that he suffered egregious harm because of the trial court's failure, during punishment phase, to sua sponte instruct the jury that it must find defendant committed any extraneous offenses beyond a reasonable doubt. It is true that before evidence of extraneous misconduct may be considered in assessing punishment, the misconduct must be proved beyond a reasonable doubt. Huizar v. State, 12 S.W.3d 479, 483, 484 (Tex. Crim. App. 2000). Defendant correctly points out that a trial court is required to sua sponte instruct the jury on this burden of proof at punishment phase. Id. The standard for determining harm in cases such as this is whether the trial court's error resulted in egregious harm, which is assessed by reviewing the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant information revealed by the record. Ellison v. State, 86 S.W.3d 226, 228 (Tex. Crim. App. 2002); Huizar, 12 S.W.3d at 483, 484.

After reviewing the record as a whole, we cannot conclude that defendant was denied a fair and impartial trial. Defendant's only showing of harm was that he was assessed a sentence of fifty years. In light of the record, this showing alone is insufficient to demonstrate egregious harm because a fifty-year sentence was well within the punishment range for murder. See Tex. Pen. Code Ann. 12.32, 19.02 (Vernon 1994); Huizar v. State, 29 S.W.3d 249, 251 (Tex. App.-- San Antonio 2000, pet. ref'd).

CONCLUSION

We affirm the trial court's judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH