Donald Sparks v. State

Opinion issued January 27, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-03-00761-CR

NO. 01-03-00762-CR

DONALD SPARKS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 155th District Court

Waller County, Texas

Trial Court Cause Nos. 02-02-11063, 02-02-11064

O P I N I O N

In separate indictments, appellant, Donald Sparks, was charged with the felony

offenses of murder of Deborah Lauren Alexander (Lauren), and aggravated assault

of Samuel Keith Thompson (Sammy).

Appellant pleaded not guilty to the charges

before a single jury, which found him guilty of both offenses. The jury sentenced

appellant to 75 years in prison and a $10,000 fine for the murder of Lauren, and 10

years in prison and a $5,000 fine for the aggravated assault of Sammy, and the trial

court ordered that the sentences run concurrently.

In two issues, appellant contends that the trial court erred by (1) allowing the

jury to propound questions to a testifying witness, (2) denying appellant’s requested

jury charge of defense of property, and (3) denying appellant’s requested jury charge

of his right to self-defense against both Lauren and Sammy. The State did not file an

appellate brief for either conviction. We conclude that the trial court erred by failing

to properly instruct the jury on the law of self-defense and defense of property and

that appellant was harmed by the error; and thus, we reverse for a new trial on both

offenses.

Background

In 2002, appellant was 70 years of age, retired, and a widower. Lauren and

appellant had been friends for three years; they did not have an intimate relationship,

although he allowed her to live with him at his trailer house for about a month. On

January 4, 2002, both appellant and Lauren smoked crack cocaine during the daytime.

That night, appellant gave Lauren a ride to an icehouse after giving her some money.

Appellant waited in his parked car while she went into the icehouse. When she

returned to appellant’s car, her friend, Sammy, joined them. Sammy and appellant

had been strangers before that evening.

Lauren, Sammy, and appellant went to various places for short lengths of time

of approximately 15 minutes at each location. Ultimately, appellant left Lauren and

Sammy at “Scott’s” trailer without a ride when appellant departed alone for his house.

Sammy and Lauren, however, found a ride to appellant’s trailer, which was about

eight miles away.

After Sammy and Lauren smoked some crack cocaine, they approached

appellant’s trailer and were allowed into the trailer by appellant. Appellant said that

he had no money to purchase gasoline that night, but that he would cash a check at

a bank the next day when the banks opened at 9 a.m., get gasoline, and take Sammy

and Lauren to Sammy’s residence in Hempstead.

At approximately 3:00 a.m., a man and woman appeared at appellant’s trailer

house. The woman, an acquaintance of appellant, asked to borrow money from him.

Lauren became angry with the woman and argued and fought with her. While

holding scissors in her hand, Lauren pulled the woman’s hair, but the fight stopped

when appellant exhibited a sawed-off .410 shotgun. After the man and woman left

appellant’s trailer house, Sammy and Lauren slept on opposite sides of appellant’s

couch, while appellant lay on his bed. From that point on, appellant’s and Sammy’s

versions of the events are starkly different concerning appellant’s use of the sawed-off .410 shotgun and a .22 rifle.

Sammy’s Testimony

Sammy testified as follows. Appellant lay on his bed with a .22 rifle next to

him as Sammy and Lauren slept on the sofa. When they all rose at about 9:00 a.m.,

appellant and Lauren started arguing again. Appellant retrieved his .22 rifle, pointed

it at Lauren, and ordered her to gather her clothes and leave. As she gathered her

belongings, Lauren told appellant that he could not call her names and that she wasn’t

scared of him or the gun. Appellant shot Lauren in the face with the .22 rifle.

Appellant then turned to Sammy and pointed the .22 rifle at him. After Sammy

ducked behind a chair, he rushed at appellant and grabbed the end of the .22 rifle’s

barrel with his left hand, causing the gun to discharge a bullet that struck Sammy’s

left thumb. Sammy took possession of the .22 rifle. As Sammy tried to unlock the

door to leave the trailer, appellant, now armed with a .410 shotgun, shot at Sammy,

but missed him. Sammy opened the door and ran outside. Appellant shot at Sammy

again with the .410 shotgun, but missed him again. Sammy then heard another

muffled gunshot that sounded as if it came from inside the trailer house. Sammy ran

to a garden nursery nearby and called for police and an ambulance.

Appellant’s Testimony

Appellant testified as follows. At around 3 a.m., when the woman who had

fought with Lauren left his trailer, he asked the woman to call police because “Lauren

was just totally out of control, and I . . . was afraid that they was gonna [sic] rob me

or kill me.” Appellant went to the restroom, and, upon returning to his bedroom, he

noticed that his .410 shotgun was missing, which caused him to continue to fear for

his life. As Sammy and Lauren slept, appellant sat upright on the bed holding the .22

rifle across his lap throughout the night.

At about 9:00 a.m., when everyone rose, appellant offered to give Lauren a ride

to Sammy’s house or into town. He told Lauren that she had to get her clothes and

leave his trailer because there was a warrant for her arrest. Lauren asked him for $50

so that she could pay Sammy part of the $225 that she owed him, but appellant

refused.

Lauren stabbed appellant three times in the arm with a pair of scissors, but

appellant “really didn’t think Lauren would hurt [him.]” Sammy, who had hidden

appellant’s .410 shotgun inside his jacket, pulled out the .410 shotgun, pointed it at

appellant and said, “I have to have my money cause [sic] my wife will kill me if I

don’t get it,” which caused appellant to fear for his life. In a sudden reverse of

emotion, Lauren switched the focus of her aggression to Sammy and attacked him in

an attempt to protect appellant.

As Lauren fought Sammy to assist appellant, appellant thought, “[H]e is gonna

kill us both.” Appellant retrieved his .22 rifle from the bedroom and pointed it at

Sammy, who was on top of Lauren, beating her with his hands and with the sawed-off

.410 shotgun. After appellant “nudged” Sammy in the side and told him to quit,

Sammy “brought up the shotgun, and turned around real slow” and then grabbed

appellant’s .22 rifle, which discharged, shooting Lauren. Sammy grabbed appellant,

slung him around like a “rag doll,” and tried to shoot him with the .22 rifle, but it

would not fire. When Sammy pointed the .410 shotgun under appellant’s chin,

appellant used all of his strength to push the .410 shotgun off, which caused it to fire,

shooting Lauren a second time. Sammy threw down the .410 shotgun, picked up the

.22 rifle, and ran out the door.

Earlier that evening, appellant had told Sammy that the .410 shotgun was a

“single shot shotgun.” Appellant stated that he believed that was why Sammy

discarded the .410 shotgun before leaving the house. Appellant picked up the .410

shotgun, discarded the empty shell, reloaded a shell, and went outside. When Sammy

fell down outside appellant’s trailer, appellant shot at him, striking the side of the car

that was parked nearby. As he ran from the trailer, Sammy fired the .22 rifle back

towards appellant’s trailer. Appellant then called police from a nearby neighbor’s

house. Denial of Jury Charges

In his second issue, appellant contends that the trial court erred by denying his

requested jury charges. Although appellant requested a defense-of-property jury

instruction by submitting proposed written jury instructions, the trial court refused to

instruct the jury on that defense. Additionally, the trial court refused to include jury

instructions on appellant’s right to use self-defense against both Lauren and Sammy

for both the murder and the aggravated assault charges. Instead, the trial court

instructed the jury, in the application paragraph for the murder charge, that appellant

had a right to self-defense as to Lauren only and instructed the jury, in the application

paragraph for the aggravated assault charge, that appellant had a right to self-defense

as to Sammy only.

By obtaining adverse trial court rulings on his proposed written instructions,

appellant preserved error on his complaints concerning the denial of his requested

charges. See Tex. Code Crim. Proc. Ann. Art. 36.14 (Vernon 1999) (defendant

must distinctly specify each ground of objection to charge); see Chapman v. State ,

921 S.W.2d 694, 695 (Tex. Crim. App. 1996) (holding that defendant preserves error

if request is specific enough to put trial court on notice of omission or error in charge;

requested charge need not be “in perfect form,” but only sufficient enough to call

error to trial court’s attention) ; see Vasquez v. State , 919 S.W.2d 433, 435 (Tex. Crim.

App. 1996) (holding that preservation of error relating to defensive issue in jury

charge is made by objection or submission of requested charge to court) .

A trial court must charge the jury on any defensive issue raised by the

evidence, “regardless of its substantive character.” Brown v. State , 955 S.W.2d 276,

279 (Tex. Crim. App. 1997). A defendant is entitled to an affirmative defensive

instruction on every issue raised by the evidence regardless of whether it is strong,

feeble, unimpeached, or contradicted, and even if the trial court is of the opinion that

the testimony is not entitled to belief. Id . (quoting Williams v. State , 630 S.W.2d 640,

643 (Tex. Crim. App. 1982)). The jury alone decides whether to accept or reject a

properly raised defensive theory. See Woodfox v. State , 742 S.W.2d 408, 410 (Tex.

Crim. App. 1987) (holding that trial judge who refuses to give instruction on

defensive issue because evidence supporting it is weak or unbelievable effectively

substitutes his judgment on weight of evidence for that of jury). In determining

whether the testimony of the accused raises an issue of self-defense, the truth of the

accused’s testimony is not at issue. Rodriquez v. State , 544 S.W.2d 382, 383 (Tex.

Crim. App. 1977).

Defense of Property

Our laws provide that a person may use non-deadly force to defend property

under certain circumstances. S ection 9.41 of the Penal Code states the following:(a) A person in lawful possession of land or tangible, movable property

is justified in using force against another when and to the degree the

actor reasonably believes the force is immediately necessary to prevent

or terminate the other’s trespass on the land or unlawful interference

with the property. (b) A person unlawfully dispossessed of land or

tangible, movable property by another is justified in using force against

the other when and to the degree the actor reasonably believes the force

is immediately necessary to reenter the land or recover the property if

the actor uses the force immediately or in fresh pursuit after the

dispossession and; (1) the actor reasonably believes the other had no

claim of right when he dispossessed the actor; or (2) the other

accomplished the dispossession by using force, threat, or fraud against

the actor.

Tex. Pen. Code Ann. § 9.41 (Vernon 2004). Our Penal Code further provides that

a person is justified in using deadly force to defend property under certain

circumstances, as follows:

A person is justified in using deadly force against another to protect land

or tangible, movable property: (1) if he would be justified in using force

against the other under Section 9.41; and (2) when and to the degree he

reasonably believes the force is immediately necessary: (A) to prevent

the other’s imminent commission of arson, burglary, robbery,

aggravated robbery, theft during the nighttime, or criminal mischief

during the nighttime; or (B) to prevent the other who is fleeing

immediately after committing burglary, robbery, aggravated robbery, or

theft during the nighttime from escaping with the property; and (3) he

reasonably believes that: (A) the land or property cannot be protected or

recovered by any other means; or (B) the use of force other than deadly

force to protect or recover the land or property would expose the actor

or another to a substantial risk of death or serious bodily injury.

Tex. Pen. Code Ann. § 9.42 (Vernon 2004).

According to appellant, Sammy pointed the .410 shotgun at him and demanded

his money, which caused him to fear for his life. Appellant testified that, in response

to this aggravated robbery, he armed himself with the .22 rifle and struggled with

Sammy, who used the sawed-off .410 shotgun to beat Lauren. Appellant further

testified that his .22 rifle discharged, when Sammy grabbed it, and shot Lauren.

Without regard to its credibility, appellant’s testimony was sufficient to raise the issue

of his right to use deadly force to defend his property from aggravated robbery by

Sammy. The trial court erred, therefore, by denying a defense-of-property instruction

concerning appellant’s right to use deadly force to defend his property from Sammy

for both the murder and aggravated assault offenses, and we sustain that portion of

appellant’s complaint on appeal.

Although, according to appellant’s testimony, Lauren had previously stabbed

appellant after he refused to give her more money, appellant clearly stated that, when

he armed himself with the .22 rifle that morning when Lauren was shot, Lauren was

in the course of defending appellant from Sammy’s threats with the .410 shotgun, and

he “really didn’t think Lauren would hurt [appellant.]” The trial court did not err,

therefore, by denying the defense-of-property instruction concerning Lauren, who,

by appellant’s own testimony was assisting him and not attacking or robbing him

when appellant acted to defend his property. We overrule the portion of appellant’s

complaint on appeal concerning denial of his request for a defense-of-property

instruction concerning Lauren.

Self-Defense

Our Penal Code provides that a person may use non-deadly force in self-defense under certain circumstances, as follows:

Except as provided in Subsection (b),

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.

Tex. Pen. Code Ann. § 9.31(a) (Vernon 2004). However, to be justified in using

self-defense through the use of deadly force, our Penal Code provides :

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 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.

Tex. Pen. Code Ann. § 9.32 (a) (Vernon 2004).

Although appellant testified that he had feared for his life as to Lauren the

night before she was killed, and that Lauren had stabbed him earlier that morning

after he refused to give her more money, he also clearly stated that, when he armed

himself with the .22 rifle on the morning that Lauren was shot, Lauren was in the

course of defending appellant from Sammy’s threats with the .410 shotgun, and

appellant “really didn’t think Lauren would hurt [him.]” The trial court did not err,

therefore, by refusing to instruct the jury on appellant’s right to self-defense as to

Lauren on the aggravated assault charge,

and we overrule that portion of appellant’s

complaint on appeal.

According to his own testimony, appellant armed himself when Sammy pointed

the .410 shotgun at him and demanded his money, which caused appellant to fear for

his life. As Sammy beat Lauren with his hands and the .410 shotgun, appellant

“nudged” Sammy in the side and told Sammy to quit. Appellant’s .22 rifle discharged

and shot Lauren when Sammy grabbed at the .22 rifle. This testimony is sufficient

to raise the issue of appellant’s right to use deadly force in self-defense against

Sammy for both the murder charge and the aggravated assault charge.

W e conclude

that the trial court erred by failing to submit an instruction on self-defense as to

Sammy for the murder charge and sustain that portion of appellant’s issue on appeal.

Because the aggravated assault offense charge contained an application paragraph

concerning appellant’s right to use self-defense against Sammy, no error concerning

the self-defense instruction occurred in that charge .

Harm Analysis

Having concluded that the trial court erred by failing to instruct the jury on

appellant’s right to use deadly force to defend his property as to Sammy for both the

murder and the aggravated assault offenses, and by failing to instruct the jury on

appellant’s right to use deadly force in self-defense as to Sammy for the murder

offense, we must determine whether the error harmed appellant. See Payne v. State ,

11 S.W.3d 231, 232 (Tex. Crim. App. 2000); Almanza v. State , 686 S.W.2d 157, 171

(Tex. Crim. App. 1984). Because appellant properly preserved the error by objecting

to the charge and by submitting his proposed jury instructions, we must reverse the

conviction and order a new trial if appellant suffered any actual harm, regardless of

degree. See Hutch v. State , 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (citing

Almanza , 686 S.W.2d at 171 ). To determine if there is any harm, we must weigh the

degree of harm in light of the entire jury charge, state of the evidence, counsel’s

arguments, and any other relevant information revealed by the trial record as a whole.

See Almanza , 686 S.W.2d at 171 .

1. The Jury Charge

We begin our harm analysis by analyzing the jury charge itself. See id.

Although the jury charge for the murder offense contained the law concerning self-defense generally, the application paragraph of the charge limited appellant’s right

to self-defense as against Lauren only—who, by appellant’s admission, was coming

to his aid when appellant armed himself. Appellant thus received no charge on his

right to use self-defense against the only attacker, Sammy.

In assessing whether appellant was harmed by the erroneous jury charge, we

also consider the appellate presumption that the jury is presumed to have understood

and followed the court’s charge, unless there is evidence to the contrary. See Hutch ,

922 S.W.2d at 172 . Under this presumption, we must presume that the jury followed

the erroneous instruction in the murder charge, which authorized the jury to take

Lauren’s, but not Sammy’s, actions into account. See id. Moreover, the erroneous

murder charge was contained in the application paragraph, the portion of the charge

that authorizes the jury to act. See id. It is not sufficient for the jury to receive an

abstract instruction on the law. Id . An abstract charge does not inform the jury of

what facts, if found by it, would permit the jury’s consideration of the contested

evidence. Id . at 173. Nothing in the record suggests that the jury did not understand

or follow the court’s charge, and we must presume that it is possible that appellant

was convicted by a jury that may have wanted to, but was not allowed to, take into

account Sammy’s actions when considering appellant’s self-defense claim to the

murder charge. See id. at 172 .

Furthermore, both the murder and aggravated assault charges completely

exclude any defense-of-property instruction. Thus, both charges ignore appellant’s

right to assert his defense that Sammy unlawfully attempted to take appellant’s

property at gunpoint.

Once a defendant has produced sufficient evidence to raise a defense, the State

is required to disprove the defense beyond a reasonable doubt. Boget v. State , 40

S.W.3d 624, 626 (Tex. App.—San Antonio 2001), aff’d , 74 S.W.3d 23 (Tex. Crim.

App. 2002). The State was not required here to disprove the defense-of-property

defense beyond a reasonable doubt because the jury charges did not instruct the jurors

that the State had the burden of persuasion on the issue. Even if the jury had a

reasonable doubt about whether appellant was justified in using deadly force to

defend his property from Sammy, the charge did not allow the jury to acquit on that

basis.

2. The Evidence

We examine next the state of the evidence, including contested issues and the

weight of the probative evidence. See Almanza , 686 S.W.2d at 171 . The jury heard

two eyewitness accounts of the events. In Sammy’s version, appellant was the

aggressor. In appellant’s version, Sammy was the aggressor. The evidence from the

autopsy report stated that Lauren’s cause of death was a “gunshot wound and shotgun

wound to the head.” Because the medical examiner testified that there was no way

to know which wound Lauren received first, the physical evidence could be

consistent with either appellant’s or Sammy’s version of events, depending on whom

the jury believed. The deputy sheriff for the Waller County Sheriff’s Department

testified that he overheard appellant state that “two people had tried to rob him, that

he had shot one, and had killed the girl in his house.” The Sheriff’s testimony is

generally consistent with appellant’s trial testimony.

3. Counsel’s Argument

We next examine the arguments of counsel. See id. It is clear from the record

that appellant’s entire defense was that he was acting to defend himself from the use

of deadly force by Sammy. Appellant’s counsel referred to self-defense and defense-of-property during voir dire, and argued these defenses in his opening statement, in

his closing arguments, and by eliciting testimony from appellant. In his closing

arguments to the jury, the prosecutor also repeatedly referred to appellant’s claims of

self-defense and defense-of-property in response to a threatened robbery by Sammy.

4. Other Relevant Information

Lastly, we address any other relevant information revealed by the record of the

trial as a whole. See id. The record contains no information on the jury’s deliberation

or length of time of their deliberation. The record reveals no other relevant

information to assist us concerning our harm analysis.

The trial court’s refusal to instruct the jury on appellant’s right to assert

defense-of-property as to Sammy on both the murder and aggravated assault offenses,

and appellant’s right to self-defense from Sammy as to the murder offense harmed

appellant because the trial court’s refusals denied appellant the opportunity of

requiring the jury to find against these defenses before assessing his guilt for the

charged offenses. The jury here was not instructed on justifications that would have

required acquittal if the jury resolved these factual issues in appellant’s favor. See

Boget, 40 S.W.3d at 627 . We conclude that the error in the denial of these jury

instructions actually harmed appellant. We sustain appellant’s second issue. Conclusion

The judgments of the trial court are reversed, and we remand for a new trial.

Elsa Alcala

Justice

Panel consists of Chief Justice Radack and Justices Keyes and Alcala.

Publish. Tex. R. App. P. 47.2.