Ronald Jacob Gressett v. The State of Texas--Appeal from 9th District Court of Montgomery County

MEMORANDUM OPINION
No. 04-02-00283-CR
Ronnie Jacob GRESSETT,
Appellant
v.
The STATE of Texas,
Appellee
From the 9th Judicial District Court, Montgomery County, Texas
Trial Court No. 00-06-03439-CR
Honorable Frederick E. Edwards, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: December 31, 2003

AFFIRMED

A jury found appellant, Ronnie Gressett, guilty of aggravated assault. The incident occurred after a bachelor party when Gressett stabbed the victim during a fight in a parking lot. The jury assessed punishment at three years confinement in the Institutional Division of the Texas Department of Criminal Justice and assessed a $3,000 fine. The court, following the recommendation of the jury, suspended the sentence of confinement and placed Gressett on community supervision for three years. Because the issue in this appeal involves the application of a well-settled principle of law, we affirm the conviction in this memorandum opinion under Tex. R. App. P. 47.4 for the following reason:

Gressett contends the trial court erred in denying his requested jury charge pursuant to Texas Penal Code section 9.32, deadly force in defense of a person. (1) Gressett argues the trial court mistakenly charged the jury only under Texas Penal Code section 9.31, which is merely self-defense excluding deadly force. Gressett's counsel preserved error by reading his proposed jury charge in the record before the court read the charge to the jury. See Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim. App. 1996); Tex. Code Crim. Proc. Ann. art. 36.15 (Vernon Supp. 2003).

Gressett's argument, however, is without merit since the trial court submitted a jury charge that tracked the applicable language of both section 9.32 and section 9.31. (2) When the jury charge tracks the language of the applicable statute it is a proper charge on the issue, and thus there is no error. Martinez v. State, 924 S.W.2d 693, 699 (Tex. Crim. App. 1996); Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994); Duffy v. State, 567 S.W.2d 197, 204 (Tex. Crim. App. 1978). Therefore, the trial court did not err in denying Gressett's requested jury charge pursuant to Texas Penal Code section 9.32.

The judgment is affirmed.

Catherine Stone, Justice

Do Not Publish

1. (a) A person is justified in using deadly force against another:

(1) if he would be justified in using force against the other under Section 9.31;

(2) if a reasonable person in the actor's situation would not have retreated; and

(3) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to protect himself against the other's use or attempted use of unlawful deadly force; or

(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

(b) The requirement imposed by Subsection (a)(2) does not apply to an actor who uses force against a person who is at the time of the use of force committing an offense of unlawful entry in the habitation of the actor. Tex. Pen. Code Ann. 9.32 (Vernon 2003).

2. 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.

The use of force is not justified in response to verbal provocation alone.

A person is justified in using deadly force against another:

(1) if he would be justified in using force in the first instance as set forth above;

(2) if a reasonable person in the defendant's position would not have retreated; and

(3) when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or 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.

"Deadly force" means force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.

"Serious bodily injury" means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

Therefore, if you find from the evidence beyond a reasonable doubt that the Defendant committed Aggravated Assault as alleged in the indictment or the lesser included offense of Assault and you further find from the evidence beyond a reasonable doubt that the Defendant was not justified in using deadly force as instructed above, then you will find the Defendant guilty of Aggravated Assault or the lesser included offense of Assault. If you find that the Defendant was justified in using deadly force as instructed above or you have a reasonable doubt whether the Defendant was not justified in using deadly force as instructed above then you will find the Defendant not guilty of Aggravated Assault or the lesser included offense of Assault.