Bobby Lee King v. The State of Texas--Appeal from County Court at Law No 1 of Montgomery County

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-06-316 CR
____________________
BOBBY LEE KING, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 1
Montgomery County, Texas
Trial Cause No. 03-191291
MEMORANDUM OPINION

A jury convicted appellant, Bobby Lee King, of the misdemeanor offense of Deadly Conduct. See Tex. Pen. Code Ann. 22.05(a), (e) (Vernon 2003). The trial court assessed King's punishment at confinement in the Montgomery County Jail for a period of ten days, with confinement credited by time served. The trial court also assessed a fine in the amount of $300, along with court costs. King raises three issues for our consideration. By his first issue, King appears to argue the evidence is legally and factually insufficient to support his conviction for deadly conduct and to reject his defense that he was justified in his actions giving rise to the offense. Specifically, King argues the State failed to prove "the offense was committed as indicted, per se with intent or knowingly[,]" and that the State produced no evidence to controvert King's claims that his actions were justified under certain statutory provisions "in order to prevent or suppress the commission of an offense." (1)

In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the verdict, and determine whether any rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 433 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). Furthermore, our review encompasses all the evidence, whether properly or improperly admitted. See Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). This standard leaves to the factfinder the responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The factfinder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). Thus, the factfinder is free to accept or reject any or all of a witness's testimony. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).

Under a factual sufficiency determination, we review the evidence in a neutral light. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.), cert. denied, No. 07-5500, 2007 WL 2139364 (U.S. Oct. 1, 2007). "Evidence can be factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust, and (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust." Id. (citing Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). A reviewing court may not reverse for factual insufficiency if "'the greater weight and preponderance of the evidence actually favors conviction.'" Id. (quoting Watson, 204 S.W.3d at 417). While a reviewing court may "second-guess the jury to a limited degree, the review should still be deferential, with a high level of skepticism about the jury's verdict required before a reversal can occur." Id. (citing Watson, 204 S.W.3d at 417; Cain v. State, 958 S.W.2d 404, 407, 410 (Tex. Crim. App. 1997)).

In reviewing a challenge to the legal and factual sufficiency of the evidence to support a jury's rejection of a defense to prosecution, a reviewing court uses the same standards used in reviewing the sufficiency of the evidence to support a verdict of guilt, looking at the sufficiency of the evidence to support both the verdict as well as the rejection of the defense. See Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (factual sufficiency standard); Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991) (legal sufficiency standard). Under the legal sufficiency standard, when a defendant raises a defense, as opposed to an affirmative defense, the reviewing court determines whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of the charged offense beyond a reasonable doubt and also would have found against the defendant on any defensive issue beyond a reasonable doubt. See Tex. Pen. Code Ann. 2.03(d) (Vernon 2003); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Saxton, 804 S.W.2d at 914. As for factual sufficiency of a rejected defense, the reviewing court examines all the evidence in a neutral light and asks 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. See Zuliani, 97 S.W.3d at 595.

Under either standard of review, when a defensive issue under section 2.03 is contemplated, it is the defendant who bears the burden of producing some evidence that supports the particular defense and, once accomplished, the State then bears the burden of persuasion to disprove the raised defense. See Zuliani, 97 S.W.3d at 594-95; Saxton, 804 S.W.2d at 913-14. It is important to remember, however, that the State's 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." Zuliani, 97 S.W.3d at 594 (citing Saxton, 804 S.W.2d at 913). "When a jury finds the defendant guilty, there is an implicit finding against the defensive theory." Id. (citing Saxton, 804 S.W.2d at 914).

Under the proper appellate standard for a legal sufficiency review, we now set out the record-evidence in the light most favorable to the verdict. The State's first witness was the complainant, H.L. It was established that at the time of the offense, November 18, 2003, H.L. was in a common-law relationship with H.T., the father of H.L.'s four-year old daughter. That evening, H.L. and H.T. were returning to their home in Porter, Texas, traveling south-bound on Highway 59. H.L. and H.T. were operating separate vehicles, each having arrived at H.T.'s brother's home at separate times earlier in the day. H.L.'s daughter, who was one and one-half years of age at the time, was riding in the back seat of H.L.'s vehicle. H.L. had left her brother-in-law's home a few minutes before H.T.

H.L. continued south on the highway , and estimated her speed somewhere around 50 or 55 miles per hour. As she traveled down the highway in her green Ford Escort, H.L. was suddenly "cut off and had to swerve into the shoulder." She described the other vehicle as a champagne or tan-colored Suburban pulling a trailer. The driver of the Suburban was later identified as the appellant, Bobby Lee King. H.L. had been traveling in the far right lane of the two south-bound lanes when King's Suburban entered into her lane and cut her off. After having maneuvered onto the shoulder of the highway to avoid being hit, H.L. recovered and flashed her lights at King's vehicle. H.L. did not speed up or attempt to catch King.

Unbeknownst to H.L., H.T. was approaching in his silver-colored vehicle and had witnessed H.L.'s near miss with King's Suburban. H.T. proceeded to pass up both H.L. and King, and then, in the grip of "road rage," H.T. either slammed on his brakes or swerved unexpectedly in front of the Suburban, forcing King to brake quickly to avoid rear-ending H.T. Because both H.T.'s vehicle and King's Suburban were quite a distance away from H.L. at this time, her progress on the highway was not impeded. However, H.L. next observed King imitate H.T. by passing H.T.'s vehicle and then cutting in front of or slamming on his [King's] brakes. H.L. described the scene on the highway in this manner: "It seemed to me they went back and forth a couple of times. [H.T.] cut [King] off and then [King] did it and then [H.T.] did it one more time and then they exited."

H.L. witnessed these actions up to the point King and H.T. exited Highway 59 at F.M. 1314. Moments later, H.L. exited Highway 59 at the same spot, and observed King and H.T. turning left onto F.M. 1314 but was unable to follow them as she had to stop for a red traffic light. Heading to her home, H.L. then proceeded to turn southbound onto Loop 494 and approached the intersection of Loop 494 and Ford Road. As she approached the intersection, she recognized King's Suburban in the left-turn lane on Loop 494 preparing to turn left onto Ford Road. As H.L.'s light was green and King's left-turn signal was red, H.L. proceeded through the intersection on her way toward East Martin Street, onto which she would turn left. As H.L. continued on Loop 494, she saw what she believed to be King's Suburban directly behind her vehicle. At the intersection of Loop 494 and East Martin there was a flashing-red traffic signal. H.L. engaged her left-turn blinker, came to a stop, and as she proceeded to make her left turn onto East Martin Street, King steered his Suburban and trailer across the single northbound lane of Loop 494, across the grassy shoulder area adjacent to the northbound lane of Loop 494, and positioned the Suburban and trailer across East Martin so as to block H.L. from making the turn onto East Martin.

This maneuver by King scared H.L. and her first thought was to make a right turn into the parking area of a convenience store located on the southbound side of Loop 494. H.L. turned into the store's parking area with King's Suburban and trailer following closely behind. The next thing H.L. became aware of was King standing next to the driver's-side window of her vehicle with a handgun pointed directly at her and telling H.L. to either, "Get the f * * * out of the car," or "Roll down your f * * * * * g window," and "Give me your f * * * * * g license." H.L. did not recall King identifying himself at first while he pointed the handgun at her. King may or may not have later told H.L. he was with the LaPorte Police Department or showed her his badge. Eyewitnesses later testified that King was holding the handgun with two hands and did not show H.L. a badge. H.L. described herself as being "scared," "upset," and "in shock" at the time of the incident. Part of her emotional distress was because she had her young daughter in the back seat at the time King pointed the handgun at H.L.

The elements of the offense of deadly conduct are: (1) the defendant, (2) recklessly, (3) engaged in conduct that placed the complainant in imminent danger of serious bodily injury. Guzman v. State, 188 S.W.3d 185, 189 (Tex. Crim. App. 2006) (citing Tex. Pen. Code Ann. 22.05(a)). Additionally, under the statutory scheme, the element of "recklessness" and the circumstance of "danger" in the third element "are presumed if the actor knowingly pointed a firearm at or in the direction of another whether or not the actor believed the firearm to be loaded." See Tex. Pen. Code Ann. 22.05(c). Nevertheless, the jury may, but is not required to, find the existence of "recklessness" and "danger" proven even when these elements are established beyond a reasonable doubt. See Act of May 29, 1993, 73d Leg., R.S., ch. 900, 1.01, sec. 2.05(2)(B), 1993 Tex. Gen. Laws 3586, 3591. (2)

In the instant case, King testified in his defense and admitted to having knowingly pointed a firearm at H.L. He further testified that as he did this, H.L. started yelling, and "I can see she's starting to fall apart, having a hard time. She puts her hands up on the steering wheel and tells me, I have a baby." But for King's proffer of certain defensive evidence, his testimony alone would satisfy the appellate standards for us to find the evidence to be both legally and factually sufficient to sustain his conviction. See Lane, 151 S.W.3d at 191-92; Roberts, 220 S.W.3d at 524.

However, in an attempt to provide a legal justification for his actions, King presented evidence that he was a licensed peace officer with "20 plus years" of experience, who was employed with the City of LaPorte Police Department at the time of the offense, and, although he was not on duty at the time nor acting within his general jurisdictional boundaries, he was nevertheless entitled to point his handgun at H.L. based on the facts and circumstances as he perceived them. King testified to the fact that at the time he confronted H.L. with his handgun, he was "[s]cared to death," and was afraid that both he and his wife were about to be killed. Yet, King's description of the circumstances as he perceived them lack specificity. We reproduce a pertinent portion of his direct-examination testimony as he describes the events directly leading up to the offense against H.L.:

Q.[King's counsel] And then what do you do?

 

A.[King] At this time, we start picking up speed again. We're going home. This incident is over. It's finished.

 

Q. Okay.

 

A. At that time the [H.L.] vehicle came back into the picture.

 

. . . .

 

Q. What does the vehicle do?

 

A. Okay. The vehicle is passing.

 

Q. On which side?

 

A. On the left side. This is the first time I remember seeing the vehicle the second time whenever it was right here.

 

Q. It was right on your - - over your left shoulder?

 

A. Yes, sir.

 

Q. What happened?

 

A. It was in the northbound lane [of Loop 494].

 

. . . .

 

A. As it comes around me, my wife tells me at that time, that's that other car. And, I said, what other car? She said, the other car out on the highway. I said, you don't know that. She said, yes, I do, that's her, that's the same girl.

 

Q. Is that car still just to your left?

 

A. No, it's moving on around.

 

Q. Okay. Go ahead.

 

A. Not passing me real fast, but she is passing, she's doing well.

 

Q. [sic] Okay. Okay. My wife identifies this vehicle as the other vehicle that was out on the roadway with the [H.T.] vehicle.

 

Q. Okay.

 

A. She comes around me, and as she comes around me - - as soon as she gets straight, she slams on her brakes.

 

Q. Okay. What do you do at that moment?

 

A. At that time, I'm back on my brakes again.

 

Q. What are you thinking at this point?

 

A. Trying to keep her - - trying to keep my vehicle from hitting her's, and I'm still expecting my [motorcycle] to come through the back of the Suburban.

 

Q. What are you thinking, in terms of danger?

 

A. At that time I believe I am being set up for something. [H.T.'s] vehicle has just left me, now this vehicle comes back into the picture again. Not only has she slammed on her brakes, but now she's traveling at 15 miles an hour.

 

Q. All right.

 

A. I tell my wife I can run faster than this.

 

Q. All right. Talk to them.

 

A. Yes. I tell my wife I can run faster than this. At that time, I reach into my console and pull my weapon out.

 

Q. Why do you think you're being - - what does that mean when you say I think I am being set up at that point?

 

A. I felt for sure I was being set up at that point for something.

 

Q. By who?

 

A. What, I don't know. Between the [H.T.] vehicle and this one. Being set up for what? At that time I didn't know. I didn't even really try to search through my mind to try to figure out what was going on, other than I knew I was being set up for something. This vehicle traveling 15 miles an hour gives the [H.T.] vehicle enough time, he knows the area, I don't, possibility for him to jump up in front of her and catch me in a bad way further on down the roadway. As I stated before, at that time I took my weapon out of the console, stuck it up underneath my leg so that I'm at ready. I instruct my wife, I don't know what is going to happen, you've got your seat belt on, stay there. I don't care what happens, stay in the vehicle, do not get out of the vehicle for any reason. You stay right there.

 

Q. Is that police training also?

 

A. Yes.

 

Q. All right. Go ahead. What next?

 

A. She acknowledged she understood that. At that time we were coming up on the other intersection.

 

Q. That would be East Martin?

 

A. This intersection.

 

Q. Okay. East Martin intersection?

 

A. Yes, sir.

 

Q. You're coming up on that intersection and what do you do?

 

. . . .

 

A. Yes.

 

We're coming up on - - we're coming up on this intersection and the lady [H.L.], the person driving the vehicle, activated her left turn signal. We're running on 15 miles an hour and all of a sudden we're going to turn into a perfect driver and activate her left turn signal.

 

Q. What did that tell you?

 

A. That told me she was about to turn down this road.

 

Q. Now, where is it that [H.T.] went?

 

A. He went down Ford Road.

 

Q. Did he go left or did he go right?

 

A. He went left.

 

Q. And now she's going to go this direction?

 

A. Right. She's coming down here and she's going to make a left turn here.

 

Q. So both of them would have been going left?

 

A. Yes. Now - -

 

Q. At that point, in order for you to do something, you would have had to have turned left again?

 

A. Sure.

 

Q. And you didn't want to do that, did you?

 

A. No, sir.

 

Q. Why didn't you want to turn left?

 

A. Well, to follow them?

 

Q. What is over the railroad track?

 

A. Darkness. But the thought of following them - - at that time I knew I was being set up for something and I wanted to stop it. I wanted it to all stop.

 

. . . .

 

So as we approach this intersection, she activates her left turn signal. And I don't want her going down this road, because I don't know if the [H.T.] vehicle or another one, still another one, would come back up somewhere later on.

 

Q. Right. So what do you do?

 

A. And I'm tired of this already. So I pulled my vehicle across the corner and blocked her escape.

 

Q. Did you go behind the pole?

 

A. No, sir, couldn't go behind the pole.

 

. . . .

 

Q. How come you didn't go behind the pole?

 

A. Well, I've got a $42,000 Suburban, $32,000 [motorcycle] behind me.

 

. . . .

 

As I cut the [H.L.] vehicle off here with my Suburban and trailer - -

 

Q. Are you concerned for your safety at that point?

 

A. At that point, I'm scared to death for mine, but even more so for my wife.

 

Q. To what degree? Are you afraid they are going to hijack you, kill you; what are you afraid of?

 

A. Basically afraid of the unknown. I don't know what is coming next.

 

Q. Was that reasonable, in your opinion?

 

A. It is to me as a police officer, yes, sir, very reasonable.

 

Q. Even today?

 

A. Yes, sir, yes, sir.

 

Q. All right. Go ahead.

 

A. Everything here worked out luckily in my favor. Because whenever I pulled in across here, the [H.L.] vehicle simply made a half moon and pulled directly in to the convenience store.

 

Q. Is that what you wanted her to do?

 

A. Yes, sir. And as she did that, I pulled directly in behind her here. Actually, the end of my trailer was sitting on the shoulder of the road out here.

 

. . . .

 

Q. All right. When I say "at that time," at the point where you were blocking East Martin, did you see a white van?

 

A. There were no other vehicles at that time.

 

. . . .

 

Q. So you pulled in right behind her?

 

A. Yes, sir. She came to a stop, I came to a stop immediately and did not wait on anything. I bailed out of my vehicle out of fear.

 

Q. Okay.

 

A. I had my badge in my left hand.

 

Q. What were you afraid of?

 

A. The unknown. I was expecting the other vehicle or other vehicles to come back into the picture.

 

Q. All right.

 

A. As far as I knew right then, I was still being set up and I was stopping everything right there.

 

Q. How would you describe your emotions?

 

A. Scared to death.

 

. . . .

 

Anyway, I bailed out of my vehicle, my badge in my left hand, gun in my right. The same badge I showed the jury a minute ago.

 

Q. What type of weapon did you pull?

 

A. Para-Ordinance P-14, .45 automatic.

 

Q. How big is it?

 

A. Very large gun.

 

Q. If you put your hand up, is it bigger than your hand?

 

A. Very much so. It's one of the larger weapons that's made. I have got a pretty good sized grip. I'm able to handle it.

 

. . . .

 

Q. (By [King's counsel]) So what happens next?

 

A. I start yelling out loudly, very loudly.

 

. . . .

 

Q. Do you even know if this is a male or a female?

 

A. At that time, I don't. The idea of male/female doesn't even come into the picture, basically, because we've been trained time and time again females or males will kill a cop. Makes no difference.

 

. . . .

 

At that time, the white van - - I caught a glimpse of this white van moving very slowly on the other side of her vehicle. It was over on the roadway approaching the convenience - -

 

Q. To her right or to her left?

 

A. It would have been to her right.

 

. . . .

 

And at the time I did not know the white van was not part of the set up.

 

Q. Because of the speed?

 

A. The van was moving extremely slowly. I remember a male subject watching me. At that time, I still had my badge up; my gun was at ready.

 

Q. Is your finger on the trigger?

 

A. I was indexed.

 

Q. What does that mean?

 

A. My finger was laying alongside the trigger guard to the left. It was not on the trigger.

 

Q. Why is that significant?

 

A. This is training. This is what we do.

 

Q. And why are you trained that way?

 

A. This particular method is used so that we know we don't put our finger on the trigger until you are ready to engage. At that time I was prepared, but not ready to engage.

 

. . . .

 

Q. And this is called what? What is this called? Indexing?

 

A. Yes, yes.

 

Q. That's in an effort to notify who?

 

A. Well, automatically she's on notification. She already looks up an [sic] sees the gun.

 

Q. Now, what - - how does she know that? Does she turn her head?

 

A. Yes, she turned around, yeah, and she actually looks and I have - - she's looking at me. I have a badge here, I have a weapon here, and I'm yelling, police officer, police officer, show me your hands and put your hands on the steering wheel.

 

. . . .

 

I - - I drop my stance, very small amount, to look into the back seat and make sure the back seat is clear, and I can see there is a child in the back seat.

 

Q. Okay. What do you do?

 

A. At that time I tell her I need to see some driver's license. I want to know who I am talking to. At that time, I took about a half a step back.

 

Q. Why do you do that?

 

A. The threat has diminished very slightly at that point.

 

Q. All right. You step back at that point and what do you do?

 

A. I holster my weapon. I see she's not got a weapon there. But the weapon is not locked in, I'm still prepared. I'm still looking around expecting, at least, one other vehicle to come in to assist her.

 

Q. Are you still concerned for your life?

 

A. I'm still scared to death. I'm trying to watch her, look for another vehicle, watch the white van and make sure nobody is getting to my wife.

 

. . . .

 

Q. Okay. Go ahead.

 

A. At that time I have got to decide - - find out where I'm at, because I still don't know where I'm at. Watching her I am looking around, watching her, watching the van, watching the wife, looking for different vehicles and trying to find signs, something to tell me where I am at so I can make a phone call, get law enforcement officers out there. Out of the corner of my eye, I cast a reserve officer, which I did not know he was there at the time. He was standing out behind me. He was on the telephone.

 

Q. What did you do?

 

A. I yelled at him and asked him, are you on the telephone to the police department. He advised me, yes, and I said, good.

 

Q. Did you identify yourself to him?

 

A. Yes.

 

. . . .

 

Q. (By [King's counsel]) Then what happens?

 

A. I held the scene. [H.L.] advised me she wanted her driver's license back. I told her, no, the other officer would give it to her. I held on to them until the other officers got there.

 

Q. When you approached her vehicle with your gun drawn, was your intention to arrest her?

 

A. At that time it was a detention, fine line between arrest and detention, yes, sir.

 

Q. She was in custody for - -

 

A. She was in custody for investigation purposes at that time.

 

Q. All right. And you were out of your jurisdiction?

 

A. Yes.

 

Q. What is one of the responsibilities you have that the code provides for off-duty officers who are out of their jurisdiction? What is the thing they have to do?

 

A. We have to get law enforcement officers with jurisdiction in that area on the scene and the scene is turned over to those officers.

 

Q. Would you consider her conduct that evening to have been a breach of the peace?

 

A. Oh, yes.

 

Q. Would you have considered her conduct to be reckless driving?

 

A. Yes.

 

The State did not contest the fact that King was a licensed peace officer nor that he was employed with the City of LaPorte Police Department. The State's evidence did focus, however, on the element of recklessness in King's actions on the evening in question and on establishing the fact that a reasonable peace officer presented with similar facts and circumstances would not have acted as King did while not on duty and outside his jurisdiction, while in his personal vehicle with his family, and when not faced with imminent serious bodily injury or death. King's direct examination testimony that H.L. had engaged in reckless driving and a breach of the peace was impeached during cross-examination by use of his hand-written statement completed on the evening in question in which King fails to mention his encounter with H.L. beginning on Loop 494 as described in his testimony quoted above.

Paragraphs three and four of the jury charge contain the defensive instructions. King does not complain of these instructions on appeal. The defensive instructions appear in the record as follows:

III.

"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. [See Tex. Pen. Code Ann. 9.01(3) (Vernon 2003).]

 

It is the duty of every peace officer to preserve the peace within the officer's jurisdiction. To effect this purpose, the officer shall use all lawful means. [See Tex. Code Crim. Proc. Ann. art. 2.13(a) (Vernon 2005).]

 

A peace officer who is outside his jurisdiction may arrest, without warrant, a person who commits an offense within the officer's presence or view, if the offense is a felony, or a breach of the peace. A peace officer making an arrest shall, as soon as practicable after making the arrest, notify a law enforcement agency having jurisdiction where the arrest was made. [See Tex. Code Crim. Proc. Ann. art. 14.03(d) (Vernon 2005).]

 
IV.

The threat of force is justified when the use of force is justified. A threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force; if: [See Tex. Pen. Code Ann. 9.04 (Vernon 2003).]

1. A peace officer is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to make or assist in making an arrest if the actor reasonably believes the arrest or search is lawful, and before using force, the actor manifests his purpose to arrest or search and identifies himself as a peace officer or as one acting at a peace officer's direction, unless he reasonably believes his purpose and identity are already known by or cannot reasonably be made known to the person to be arrested, AND, [See Tex. Pen. Code Ann. 9.51(a)(1), (2) (Vernon 2003).]

2. A peace officer is justified in using deadly force against another when and to the degree the peace officer reasonably believes the deadly force is immediately necessary to make an arrest. Use of deadly force is justified when the actor reasonably believes the conduct for which arrest is authorized included the use or attempted use of deadly force; or the actor reasonably believes there is a substantial risk that the person to be arrested will cause death or serious bodily injury to the actor or another if the arrest is delayed. [See Tex. Pen. Code Ann. 9.51(c)(1), (2), . . . .]

 

If you believe the Defendant's use or attempted use of force or deadly force was justified or, if you have a reasonable doubt thereof, you will find the Defendant not guilty. [See Tex. Pen. Code Ann. 9.02 (Vernon 2003).]

 

In the instant case, the jury as trier-of-fact, by finding King guilty, implicitly rejected all of his defenses. See Adelman, 828 S.W.2d at 422; Saxton, 804 S.W.2d at 914. King produced evidence admitting to the offense but also attempted to demonstrate that his actions in committing the offense were legally justified. See Tex. Pen. Code Ann. 9.02. The jury could have rationally concluded that under the circumstances he was not acting as a peace officer "to preserve the peace." See Tex. Code Crim. Proc. Ann. art. 2.13(a). (3) The remaining defensive instructions required the jury to find, among other things, that King's use of force against H.L. was justified because King's subjective beliefs of the facts and circumstances he was perceiving at the time were "reasonable."

A reasonable belief is one that would be held by an ordinary and prudent person in the same circumstances as the actor. Tex. Pen. Code Ann. 1.07(a)(42) (Vernon Supp. 2006). Generally, whether a defendant was prompted to act by a reasonable belief is a question for the trier of fact. See Sanders v. State, 707 S.W.2d 78, 79-80 (Tex. Crim. App. 1986), limited on other grounds, Willis v. State, 790 S.W.2d 307, 314 (Tex. Crim. App. 1990)(en banc). In the instant case, King produced very little evidence for the jury as to any immediate threat to him or his wife posed by H.L. necessitating King's pulling his handgun and pointing it directly at H.L. By his own testimony, King's only problem with H.L. stemmed from the purported brakes-slamming incident on Loop 494 just prior to H.L.'s attempted left turn onto East Martin. King's testimony on this point was seriously undermined by the testimony of Cassidy and Thomas Mishler, the occupants of the white van who were eyewitnesses to the events in question, and who testified that their van was between King's vehicle and H.L.'s vehicle at the time King swerved his Suburban across Loop 494 and onto East Martin to prevent H.L. from turning left onto East Martin. However, the most striking detail to which neither King nor any of his witnesses provided an adequate explanation was why King did not simply break off the encounter previously while still on Highway 59 as he and his wife were returning home to LaPorte. The evidence establishes that it was King who pursued both H.T. and H.L., and that King had the ability to forgo either pursuit at his discretion. It has been observed that the availability of legal alternatives may be relevant when analyzing the reasonableness of an actor's conduct. See Pennington v. State, 54 S.W.3d 852, 859 (Tex. App.--Fort Worth 2001, pet. ref'd); see also Arnwine v. State, 20 S.W.3d 155, 160 (Tex. App.--Texarkana 2000, no pet.) (citing Smith v. State, 874 S.W.2d 269, 273 (Tex. App.--Houston [14th Dist.] 1994, pet. ref'd), abrogated on other grounds by Clewis v. State, 922 S.W.2d 126, 129 n.1 (Tex. Crim. App. 1996). Based upon all of the facts and circumstances presented during the trial, there is both legally and factually sufficient evidence in the record to support a rational jury in concluding King's conduct on the evening in question was not reasonable, thereby rejecting each of King's defensive issues.

Therefore, viewing all the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt and could have found against King on all his defensive issues beyond a reasonable doubt. Examining all the evidence in a neutral light, we find the State's evidence, taken alone, is neither too weak to support the jury's guilty verdict and rejection of King's defensive issues, nor is the State's proof of King's guilt against the great weight and preponderance of the evidence. We overrule King's first issue. (4)

King's second issue is multifarious in complaining of the admissibility of deposition testimony from two State's witnesses, and complaining that certain cross-examination testimony of these same witnesses was erroneously excluded by the trial court. King initially contends that there was no statutory provision for taking depositions to preserve testimony in a criminal case, and that the State failed to make a good-faith effort to otherwise secure the deposed witnesses for trial. King does not direct our attention to the place in the record where these particular complaints were raised before the trial court. See Tex. R. App. P. 33.1(a)(1); Tex. R. Evid. 103(a)(1). Indeed, the State correctly points out that the record reflects King was unopposed to the State's pretrial motion to depose the Mishlers. As such, King has failed to preserve this part of issue two for appellate review. See Tex. R. App. P. 33.1(a)(1).

In the second part of issue two, King complains that his constitutional rights to effective representation, to confrontation, and to present a defense were violated by the trial court's "refusing to allow the follow-up questions and answers of defense counsel to be admitted before the jury." The witnesses in question were Thomas David Mishler and Cassidy Mishler. The Mishlers, husband and wife, were traveling in the white van on Loop 494 when the instant offense occurred, and witnessed certain events involving King and H.L. At the time of trial, the Mishlers had relocated to the State of Alaska, and did not plan to return to Texas.

We review a trial court's ruling admitting or excluding evidence under an abuse of discretion standard. See Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). The ruling must be upheld if it was correct under any theory of law applicable to the case in light of what was before the trial court at the time the ruling was made. Id. Our examination of the excluded cross-examination responses indicate King was most often attempting to elicit opinions from the Mishlers, either based upon hypothetical fact questions or on questions that mixed law and fact. King contends the trial court's error denied the jury the opportunity to hear the complete testimony from the Mishlers, thereby leaving the jury with "a false impression that the witnesses believed Officer King acted improperly, and denied defendant's right to effective presentation of his defense."

The record indicates that King began cross-examination of both Thomas and Cassidy by establishing that neither of them had any training or education in law enforcement. From all indications, the State sought the Mishlers' testimony solely as lay witnesses who happened to have observed the events in question. In Osbourn v. State, 92 S.W.3d 531 (Tex. Crim. App. 2002), the Court explained the scope of "opinion" testimony in the following manner:

Both lay and expert witnesses can offer opinion testimony. Rule 701 covers the more traditional witness -- one who "witnessed" or participated in the events about which he or she is testifying -- while Rule 702 allows for a witness who was brought in as an expert to testify. A witness can testify in the form of an opinion under Rule 701 if the opinions or inferences are (a) rationally based on his or her perceptions and (b) helpful to the clear understanding of the testimony or the determination of a fact in issue. Fairow v. State, 943 S.W.2d 895, 898 (Tex. Crim. App. 1997). Perceptions refer to a witness's interpretation of information acquired through his or her own senses or experiences at the time of the event (i.e., things the witness saw, heard, smelled, touched, felt, or tasted). Since Rule 701 requires the testimony to be based on the witness's perception, it is necessary that the witness personally observed or experienced the events about which he or she is testifying. Id. at 898. Thus, the witness's testimony can include opinions, beliefs, or inferences as long as they are drawn from his or her own experiences or observations. This also incorporates the personal knowledge requirement of Rule 602 which states that a witness may not testify to a matter unless he or she has personal knowledge of the matter. Bigby v. State, 892 S.W.2d 864, 889 (Tex. Crim. App. 1994). There is, however, a provision in Rule 602 for opinion testimony by expert witnesses which allows a person testifying as an expert under Rule 702 to base his or her opinion on facts and data that are of a type reasonably relied upon by experts in the field. Tex. R. Crim. Evid. 703. Thus, expert testimony serves the purpose of allowing certain types of relevant, helpful testimony by a witness who does not possess personal knowledge of the events about which he or she is testifying.

 

Id. at 535-36 (footnote omitted). Because the Mishlers were lay witnesses, any opinion testimony from them had to be rationally based on their own experiences or senses and had to aid in the understanding of their testimony or in the determination of a fact in issue. According to King, the excluded testimony was highly pertinent to his justification defense related to his purported duty as a peace officer. Of course, a defendant's meaningful right to present a complete defense is not unlimited. "A defendant has a fundamental right to present evidence of a defense as long as the evidence is relevant and is not excluded by an established evidentiary rule." Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001) (citing Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)). To be relevant, evidence must fulfill two conditions: first, materiality, and second, probativeness. Miller, 36 S.W.3d at 507. As the Miller Court explained:

For evidence to be material it "must be shown to be addressed to the proof of a material proposition, i.e., 'any fact that is of consequence to the determination of the action.' 'If the evidence is offered to help prove a proposition which is not a matter in issue, the evidence is immaterial.'" 1 STEVEN GOODE ET AL., TEXAS PRACTICE: GUIDE TO THE TEXAS RULES OF EVIDENCE: CIVIL AND CRIMINAL 401.1 (2d ed. 1993 & Supp. 1995). If the proponent establishes that the proffered evidence is material, Rule 401 also requires that the proponent establish the evidence is probative, i.e., the proffered evidence must tend to make the existence of the fact "more or less probable than it would be without the evidence." Id. The proffered evidence is relevant if it has been shown to be material to a fact in issue and if it makes that fact more probable than it would be without the evidence.

 

Id.

In the instant case, King had already established the fact that neither of the Mishlers had any law enforcement training or education. Therefore, any questions attempting to elicit their opinions on King's duty or authority as a peace officer, whether off-duty and/or outside his jurisdiction, failed to meet the requirements of Rule 701 (personal perception or knowledge) and of Rule 401 (relevance requiring both materiality and probativeness). Additionally, the hypothetical questions formulated by King's trial counsel had little, if any, evidentiary basis. See Pyles v. State, 755 S.W.2d 98, 118 (Tex. Crim. App. 1988) ("The assumptions of the hypothetical must be based on facts within the personal knowledge of the witness, or facts assumed from common or judicial knowledge, or facts supported by evidence.") Because the excluded questions and answers were neither relevant nor representative of the witnesses' personal perception or knowledge, there was no abuse of discretion on the trial court's part in excluding them from the jury's consideration. Issue two is overruled.

King's last issue again presents a multifarious complaint; error by the trial court in "allow[ing]" an inmate in jail-clothing to abruptly appear in the courtroom in the presence of the jury, and in permitting the State to admit King's book-in photograph. The record indicates that early in the trial during the direct testimony of H.L., an inmate appears to have wandered into the courtroom, with the trial judge seemingly as surprised as anyone, as is indicated by the following portion of the record:

Q.(By [The State]) When you turned in down to the store, what did the defendant do?

 

A.[H.L.] He pulled in the store - -

 

THE COURT: Excuse me, ma'am.

 

Mr. Webb, can I get you to escort the prisoner outside.

 

Ladies and gentlemen, that has nothing to do with this case. It is a completely different case. I have to see him today. He was arrested because he didn't pay fines and court cost in another case. It has nothing to do with this case. But he has to be brought over immediately upon his arrest. So that's why he's here. I just want y'all to know that. Thank you.

 

[The State]: May I proceed, Your Honor?

 

THE COURT: You may.

 

As the record indicates, the trial court immediately explained to the jury that the inmate's sudden presence in the courtroom was absolutely unrelated to King's prosecution. Additionally, King made no objection with regard to this incident. Thus, he has failed to preserve this issue for review. Tex. R. App. P. 33.1(a). Additionally, we find the trial court's sua sponte explanation to function as an instruction to disregard. See Archie v. State, 221 S.W.3d 695, 698 (Tex. Crim. App. 2007). The inmate's inopportune appearance was harmless to King's substantial rights. See Tex. R. App. P. 44.2(b). This part of issue three is overruled.

With regard to the book-in photograph, the record indicates that during her deposition, Cassidy Mishler used a photograph of King provided by the State to identify him as the perpetrator of the acts she witnessed on the evening in question. It is not clear from the record that the photograph Cassidy used to identify King is the same photograph as is State's Exhibit 7, the book-in photograph admitted at trial. King had no objection to the photograph used by Cassidy during her deposition. At trial, King objected to State's Exhibit 7 on the grounds that King has "an angry look on his face. . . . This picture doesn't do anything but aggravate the circumstances. It has no probative value." The trial court apparently determined that, because Cassidy identified King by his photograph, State's Exhibit 7 was admissible.

We will construe King's objection to be that the photograph lacked relevance and that its probative value was substantially outweighed by unfair prejudice. See Tex. R. Evid. 401, 403. King did not object at trial to, nor does he now complain of, an improperly suggestive photographic identification procedure by the State. See Barley v. State, 906 S.W.2d 27, 33-34 (Tex. Crim. App. 1995). Admissibility of a photograph is within the sound discretion of the trial court. See Paredes v. State, 129 S.W.3d 530, 539 (Tex. Crim. App. 2004). The deposition testimony was taken out of King's presence thus necessitating the use of his photograph so that proper identification of the perpetrator by the Mishlers could be established. Therefore, State's Exhibit 7 was relevant as identity is an essential element in any criminal offense. As the State points out, Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. See Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). In the instant case, the basis of the objection -- that King had an "angry look" -- is highly subjective. The photograph is not prejudicial in the traditional sense as it contains no markings and does not present King in any jail clothing or holding an identification slate with his name and inmate number, nor does it indicate it was obtained from a prior offense. See Hollis v. State, 219 S.W.3d 446, 466 (Tex. App.--Austin 2007, no pet.). That the photograph is unflattering to King is not the issue; it must be unfairly prejudicial to him, i.e., evidence that has a "'tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.'" See Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (opinion on rehearing)(quoting Advisory Committee's Note to Fed R. Evid. 403). In the instant case, we find the trial court's ruling on King's photograph to be well "within the zone of reasonable disagreement." Id. at 391. It was not error to admit State's Exhibit 7. Id. King's third issue is overruled. The judgment of the trial court is affirmed. AFFIRMED.

__________________________________

CHARLES KREGER

Justice

Submitted on April 17, 2007

Opinion Delivered October 31, 2007

Do not publish

 

Before Gaultney, Kreger, and Horton, JJ.

1. King also appears to argue that his actions were justified under a theory of self-defense pursuant to Tex. Pen. Code Ann. 9.32 (Vernon 2003). However, the jury was not given such a defensive instruction and we find no indication in the record where King made such a request. Therefore, our opinion focuses only on the defensive issues provided to the jury and properly argued by King on appeal. Tex. R. App. P. 33.1(a).

2. Current version at Tex. Pen. Code Ann. 2.05(a)(2)(B) (Vernon Supp. 2006). The trial court in the instant case properly instructed the jury under section 2.05 thereby avoiding a "mandatory presumption" issue. See Brown v. State, 122 S.W.3d 794, 799 n.17 (Tex. Crim. App. 2003); see also Guzman v. State, 188 S.W.3d 185, 193 (Tex. Crim. App. 2006) (Statutory presumption is not an element of an offense because it is not part of the statutory definition of the crime.).

3. Additionally, at the time the offense took place, November 18, 2003, the Texas Code of Criminal Procedure authorized only peace officers who were Texas Rangers and Troopers with the Texas Department of Public Safety to make extra-territorial arrests for violations of the "Rules of the Road" set out in the Texas Transportation Code. See State v. Kurtz, 152 S.W.3d 72, 77 (Tex. Crim. App. 2004). The offense of "Reckless Driving" is a violation of the "Rules of the Road." See Tex. Transp. Code Ann. 545.401 (Vernon 1999). Section 545.401 is part of subchapter I, which is titled "Rules of the Road;" subchapter I is part of Title 7, titled "Vehicles and Traffic." As King was outside his jurisdiction at the time he encountered H.L., he had no authority to effectuate a detention of H.L. even if she had committed the offense of "reckless driving" in King's presence. See Kurtz, 152 S.W.3d at 79-80.

4. King urges that we examine his defensive issues in light of the analysis conducted by the court of appeals in Volosen v. State, 192 S.W.3d 597 (Tex. App.--Fort Worth 2006, pet. granted). The Court of Criminal Appeals reversed the court of appeals' decision, finding that the defendant had failed in his burden of production to demonstrate the statutory defense upon which he relied was applicable in Tarrant County at the time of his trial. See Volosen v. State, 227 S.W.3d 77, 81-82 (Tex. Crim. App. 2007). At the time King filed his appellate brief, he did not have the benefit of this review of Volosen by the Court of Criminal Appeals.