No. 05-09-00182-CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT DALLAS, TEXAS 5th Court of Appeals FILED: 03/12/2012 14:00 Lisa Matz, Clerk JOSE MANUEL MORALES, Appellant v. THE STATE OF TEXAS ON APPEAL IN CAUSE NO. F07-59841-WX FROM CRIMINAL DISTRICT COURT NUMBER SIX OF DALLAS COUNTY, TEXAS BEFORE THE HONORABLE JEANINE HOWARD, PRESIDING JUDGE APPELLANT S SUPPLEMENTAL BRIEF ON REMAND JOHN H. HAGLER State Bar No. 08696000 P.O. Box 12243 Dallas, Texas 75225-0243 Telephone: (214) 265-0846 haglerj@flash.net ATTORNEY FOR APPELLANT
TABLE OF CONTENTS INDEX OF AUTHORITIES... ii APPELLANT S RESPONSE NUMBER ONE ON REMAND... 2 (Germane to Appellant s Issue Number Two) THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN THE JURY WAS CHARGED ON THE GENERAL DUTY TO RETREAT. (RR5: 3-11) APPELLANT S RESPONSE NUMBER TWO ON REMAND... 5 (Germane to Appellant s Issue Number Three) THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY THAT THE APPELLANT S BELIEF THAT DEADLY FORCE WAS IMMEDIATELY NECESSARY IS PRESUMED TO BE REASONABLE UNDER CERTAIN CIRCUMSTANCES. PRAYER FOR RELIEF... 13 CERTIFICATE OF SERVICE... 13 i
INDEX OF AUTHORITIES CASES: Almanza v. State 686 S.W.2d 157 (Tex.Crim.App. 1985)... 3, 12 Arline v. State 721 S.W.2d 348 (Tex.Crim.App. 1986)... 3 Hughes v. State 719 S.W.2d 560 (Tex.Crim.App. 1986)... 8 Morales v. State No. 05-09-00182-CR, 2010 WL 1965889 (Tex.App.-Dallas April 14, 2010) (not designated for publication)... passim Morales v. State 357 S.W.3d 1 (Tex.Crim.App. 2011)... passim Warner v. State 245 S.W.3d 458 (Tex.Crim.App. 2008)... 3 TEXAS PENAL CODE: TEX. PENAL CODE 2.05(b)... 6, 12 TEX. PENAL CODE 9.32... 6 TEX. PENAL CODE 9.32(a)... 4 TEX. PENAL CODE 9.32(b)... 5, 12 TEX. PENAL CODE 9.32(c)... 4 TEX. PENAL CODE 9.32(d)... 4 TEX. PENAL CODE 9.33... 5 ii
NO. 05-09-00182-CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT DALLAS, TEXAS JOSE MANUEL MORALES, Appellant v. THE STATE OF TEXAS TO THE HONORABLE COURT OF APPEALS: Appellant, Jose Manuel Morales, respectfully submits this supplemental brief on remand in the above-styled and numbered cause. The Appellant re-urges the arguments and authorities set forth in his initial brief and, with the issuance of the opinion of the Texas Court of Criminal Appeals, would supplement those arguments and authorities with the following: 1
ARGUMENTS APPELLANT S RESPONSE NUMBER ONE ON REMAND (Germane to Appellant s Issue Number Two) THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN THE JURY WAS CHARGED ON THE GENERAL DUTY TO RETREAT. (RR5: 3-11) In reversing this Court s judgment, the Texas Court of Criminal Appeals ruled that the trial court erred in charging the jury regarding the general duty to retreat. Morales v. State, 357 S.W.3d 1 (Tex.Crim.App. 2011). [The citation to this Court s decision is Morales v. State, No. 05-09-00182-CR, 2010 WL 1965889 (Tex.App.-Dallas April 14, 2010) (not designated for publication) will be referred to as Morales I. The decision handed down by the Texas Court of Criminal Appeals will be referred to as Morales II. ] That Court held that, as the result of 2007 amendment to the self-defense statute, the general duty to retreat was removed from TEX. PENAL CODE 9.32(a), and, therefore, the the unauthorized inclusion of the instruction [i.e., the general duty to retreat] constitutes a comment on the weight of the evidence. Morales II, at *5. The Court then remanded the case back to this Court with the instructions that [i]t may address singly, or in combination, any error or harm issue(s) that would logically dispose of the case. Morales II, at *8. The sole remaining issue is whether the erroneous jury charge constituted 2
harmful, reversible error. Because the Appellant objected to the erroneous jury instructions, the conviction must be reversed if the Appellant suffered some actual harm. Arline v. State, 721 S.W.2d 348 (Tex.Crim.App. 1986), and Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985) In Arline the Court stated: the presence of any harm, regardless of degree, which results from preserved charging error, is sufficient to require a reversal of the conviction. Id. at 351 (emphasis in original.) Furthermore, there is no burden of proof or persuasion on either party in a harm analysis. See Warner v. State, 245 S.W.3d 458, 464 (Tex.Crim.App. 2008) Reversible error was committed in this case when the jury was instructed to determine whether the Appellant reasonably believed that a person in Juan Carlos Morales [the Appellant s brother s] situation would not have had a duty to retreat before using deadly force in his own defense because such a charge was not authorized by statute and amounted to a comment on the weight of the evidence. Morales II, at *3, *5. In its opinion, the Court of Criminal Appeals identified the error, as follows: Instead of asking the jury to determine whether a reasonable person would not have retreated, the instructions asked the jury to determine whether a person would not have had a duty to retreat. Morales II, at *6. Also, in its opinion, the Court held that retreat might still be a relevant evidentiary issue in the prosecution and that the failure to retreat, under certain circumstances, could be a relevant factor in determining the defendant s mental 3
state and the reasonableness of his conduct. Morales II, at *5-6. However, after the 2007 amendment to TEX. PENAL CODE 9.32(a) and the enactment of TEX. PENAL CODE 9.32(c) and (d), the failure to retreat now is to be considered only in determining whether a defendant reasonably believed that his conduct was immediately necessary to defend himself or a third person. Those two additional provisions to TEX. PENAL CODE 9.32 read, as follows: (c) A person who has a right to be present at the location where the deadly force was used, who has not provoked the person against whom the deadly force was used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section. (d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat. Also, it should be noted that these two provisions simply state the circumstances when a person does not have a duty to retreat. Morales II, at *5. (emphasis in original) In the present case, the error was harmful because the general duty to retreat is no longer a component part of the law of self-defense as it existed prior to 2007. With the 2007 amendment to TEX. PENAL CODE 9.32, retreat is now simply a factor or possibly a relevant evidentiary issue in the prosecution as to whether the defendant s conduct really was immediately necessary. Morales II, at 5. Harmful, reversible error was committed when the jury charge made retreat a 4
component part of the law of self-defense. The jury instructions improperly focused the jury on the retreat evidence when retreat was no longer an element of the defense. At most, the retreat evidence was simply relevant to the issue of whether the Appellant reasonably believed that Juan Carlos Morales was not required to retreat. In the instant case, defense of a third person was the only defense. See TEX. PENAL CODE 9.33. The addition of a component element of retreat to the law of self-defense in the application part of the jury charge improperly focused the jury s attention on the retreat issue and allowed the State to defeat the Appellant s defense of justification to use deadly force to protect a third person. Accordingly, the Appellant suffered some actual harm and reversible error was committed. APPELLANT S RESPONSE NUMBER TWO ON REMAND (Germane to Appellant s Issue Number Three) THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY THAT THE APPELLANT S BELIEF THAT DEADLY FORCE WAS IMMEDIATELY NECESSARY IS PRESUMED TO BE REASONABLE UNDER CERTAIN CIRCUMSTANCES. Next, the Appellant has urged that the trial court failed to charge the jury regarding a statutory presumption, as set out in TEX. PENAL CODE 9.32(b), that the Appellant s belief that deadly force was immediately necessary is presumed to be reasonable under certain circumstances. In addition, the Appellant has argued that the trial court was required, but failed, to instruct the jurors regarding the 5
application of the law of presumption, as set out in TEX. PENAL CODE 2.05(b), to the statutory presumption concerning the use of deadly force. In 2007, the Legislature amended TEX. PENAL CODE 9.32 by adding the following provision that reads, in pertinent part: (b) The actor s belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor: (1) knew or had reason to believe that the person against whom the deadly force was used: (C) was committing or attempting to commit an offense described by Subsection (a)(2)(b); (2) did not provoke the person against whom the force was used; and (3) was not otherwise engaged in criminal activity at the time the force was used. In turn, TEX. PENAL CODE 2.05(b)(1) [captioned Presumption ] requires that a presumption that favors the defendant be submitted to the jury if there is sufficient evidence of the facts that give rise to the presumption unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact. See Morales II, at *7. In overruling this issue, this Court held: Because there was insufficient evidence to establish Juan was entitled to the presumption that the use of deadly force was reasonable, appellant was not entitled to an instruction on the presumption. Morales I, at *9. This Court reached such conclusion after stating 6
that, because Juan participated in a riot, the presumption was not applicable. Morales I, at *9. More specifically, this Court stated: However, the evidence was undisputed that more than seven persons, including Juan, were involved in the fight. Further, it was undisputed that some participants in the fight were using weapons. Celis testified without contradiction that the fighters were throwing rocks at his apartment. Also without contradiction, Ortiz testified Perez threw a bat that hit her sign, and Brenda testified a piece of metal almost hit her mother. Perez testified he was hit with a bat and that he tried to hit other fighters with a bat. The evidence was undisputed the conduct of the participants in the riot, including Juan, created an immediate danger of damage to property or injury to persons. Morales I, at *9. However, the Texas Court of Criminal Appeals subsequently stated: The court of appeals pointed to several acts that showed Juan s participation in the riot: fighting Lopez, pulling baseball bats out of a car, and participating with seven to nine other individuals in beating Lopez. But while the court of appeals says that Juan s involvement in the riot was undisputed, it does not say whether his commission of all of these acts was undisputed. Morales II, at *7. The Court of Criminal Appeals then stated that the some of the evidence appears to be disputed and that [w]e merely note the possibility of inconsistency and leave it to the court of appeals to address on remand (if necessary) whether there is an actual conflict in the evidence. Morales II, at *7. The Court also held: We conclude that the court of appeals s analysis on whether appellant was entitled to a presumption charge was incomplete. Morales II, at *8. 7
FURTHER ANALYSIS At the outset, it should be noted that, in its earlier opinion, this Court misstated the proper focus of the appellate review by holding that, because Juan was not entitled to the presumption, the Appellant likewise was not entitled to the submission of the presumption. Morales I, at *9. Instead, the Court of Criminal Appeals correctly held the following: We also point out that the focus of the defense-of-third-persons defense is upon what the actor reasonably believes concerning the situation of the third person. If appellant reasonably believed that Juan s participation in the riot was limited to legitimately defending himself, then appellant would be entitled to the presumption, even if appellant s belief was actually incorrect. Morales II, at *8. The Appellant would further note that such assessment of the facts is made from the appellant s standpoint. Hughes v. State, 719 S.W.2d 560 (Tex.Crim.App. 1986) In its analysis of the facts, this Court first erred by simply reviewing the facts to determine whether a riot had occurred. However, the contested issue was never whether a riot occurred; instead, the issue was whether the Appellant reasonably believed that Juan s involvement in the riot was limited to legitimately defending himself. Secondly, this Court erred in failing to review the evidence to determine whether a factual issue was raised as to the Appellant s reasonable belief that Juan s involvement in the riot was so limited. 8
FACTS This Court summarily concluded that the evidence was undisputed that Juan Morales participated in the riot and that, therefore, the Appellant was not entitled to the submission of the presumption to the jury. Morales I, at *9. However, a review of the trial testimony reveals that conflicting evidence on this issue appears in the record. 1. Norma Ortiz, the manager of the apartment complex near the fight scene, testified that she saw the Appellant s brother Juan Morales who was being beaten by the complainant [Enil Lopez] and his brother Kevin Perez. (RR4: 73, 77) The manager said that Perez had ran to fight Juan. (RR4: 86) The manager stated that she saw the complainant hit Juan Morales about four times in the back with a red pipe. (RR4: 86-87) The manager stated that Juan would have got killed if his brother [i.e., the Appellant] didn t help him because he [i.e., the complainant] was hitting real hard. (RR4: 78) The manager also testified: They would have killed him. I m serious, because they were hitting him hard. (RR4: 82) Within not even one second, the manager heard the gunshots. (RR4: 80) 2. Jetzabel Soria, the mother of Eric Cortez, testified that she saw Kevin Perez holding a bat, cursing, and challenging others to fight. (RR4: 96, 108) Soria said that she also saw the complainant cross the street with the pipe to hit them. (RR4: 106) Next, Soria saw the complainant use the red pipe to beat Juan 9
Morales who was on the ground. (RR4: 97-98, 99, 103) Soria said that Juan tried to cover himself, but he fell down. (RR4: 98) Soria said that the complainant hit Juan Morales close to the face, and all over his body and that the beating occurred in front of her apartment by the curb. (RR4: 101) 3. Brenda Cortez, the sister of Eric Cortez, testified that she witnessed the attack from a second floor balcony. (RR4: 108, 110-111) Brenda Cortez stated that she observed the complainant repeatedly and violently strike Juan Cookie Morales with a metal-like, shiny object while Juan was on the ground. (RR4: 111, 112, 119) Brenda Cortez stated that the complainant was shot only after attempts were unsuccessful in getting the complainant off Juan Morales. (RR4: 113-114) 4. Rosio Garcia said that she saw Juan Morales and Eric Cortez get some bats out of the trunk of a car. (RR3: 160-161, 164, 168) However, prior to the time that the bats were taken from the trunk, Garcia saw the complainant come out of the apartment complex carrying an object that appeared to be thin and blue and was similar to a broomstick. (RR3: 160, 192) The complainant then crossed the street and approached a group of men, and the fight commenced. (RR3: 160, 191-192) SUMMARY At a minimum, conflicting testimony was presented as to whether Juan Morales was a knowing participant in the rioting. The State offered testimony that 10
Juan hit the complainant with a bat while the complainant was on the ground. (RR3: 161) However, this testimony was in direct conflict with defense testimony that the complainant struck Juan with a pipe while Juan was on the ground and that Juan tried to cover himself but was unable to defend himself. (RR4: 82, 98) Furthermore, even if Juan had obtained a bat, this was only after the complainant had obtained a broom-like weapon and crossed the street to confront the crowd. (RR3: 160-161) Accordingly, the obtaining of the bat was consistent with selfdefense. First, the trial testimony established that the Appellant reasonably believed, as viewed from his standpoint, that the complainant was attempting to bludgeon to death Juan Morales when the complainant repeatedly and violently hit Juan Morales on the head and body with a metal object or pipe. (RR4: 97, 112) Secondly, testimony was presented that Juan Morales did not provoke the complainant and, in fact, the complainant was the person who had something in his hand when he crossed the street to confront the gang members on the other side of the street. (RR3: 159-160; RR4: 90) The Appellant would urge that a fact issue was raised as to whether the Appellant reasonably believed that Juan s participation in the riot was limited to legitimately defending himself. The presumption raised in this case was the Appellant s belief that deadly force was immediately necessary was reasonable. 11
Error was committed because the trial court could not have found that the evidence as a whole clearly precluded a finding beyond a reasonable doubt of such presumed fact. See TEX. PENAL CODE 2.05(b)(1). In the present case, there was sufficient evidence to give rise to the presumption and, therefore, the trial court was required by statute to submit the issue to the jury. Accordingly, the failure to charge the jury on Sections 2.05(b) and 9.32(b) of the Texas Penal Code constituted error. HARM ANALYSIS Because no objection was voiced to the failure of the jury charge to include the instructions of the presumption, the charging error is subject to an egregious harm analysis. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) Errors that result in egregious harm are those which affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. Almanza v. State, 686 S.W.2d at 172 (citations omitted). In the present case, the Appellant suffered egregious harm when the jury was not instructed on the favorable presumption that supported the legal justification of defense of third person. Again, the presumed fact in this case was the Appellant s belief that deadly force was immediately necessary was reasonable. Again, this was the core issue in the case. Such presumption dealt with the very basis of the case and the vitally affect[ed] a defensive theory 12
and, consequently, reversible error was committed. PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, there being reversible error appearing in the record of the trial of this case, the Appellant moves the Court to reverse the conviction and remand the case to the trial court for further proceedings. Respectfully submitted, JOHN H. HAGLER State Bar No. 08696000 P.O. Box 12243 Dallas, Texas 75225-0243 Telephone: (214) 265-0846 haglerj@flash.net ATTORNEY FOR APPELLANT CERTIFICATE OF SERVICE The undersigned attorney hereby certifies that a true and correct copy of the foregoing brief has been mailed to the Office of the Criminal District Attorney for Dallas County, Frank Crowley Criminal Courts Building, 133 North Riverfront Blvd., 11th Floor, Dallas, Texas 75207, and sent by e-mail attachment to Michael R. Casillas, Chief Prosecutor, Appellate Division of the Dallas County Criminal District Attorney s Office, on the day of March, 2012. JOHN H. HAGLER 13