Jon Benoit Guilbeau v. State

Opinion issued April 23, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00038-CR

____________

JON BENOIT GUILBEAU, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 975831

MEMORANDUM OPINION

Appellant, Jon Benoit Guilbeau, appeals a judgment that sentences him to 20

years in prison and a $10,000 fine for the second-degree felony of manslaughter. See

Tex. Penal Code Ann. § 19.04 (a) (Vernon 2003). Appellant pleaded not guilty to

the jury. The jury found appellant guilty and determined his sentence. In three

issues, appellant contends the trial court erred by commenting on the weight of the

evidence in its instructions to the jury, admitting evidence of extraneous offenses in

the guilt stage of trial, and making an affirmative finding of a deadly weapon in the

judgment and sentence. We conclude the trial court properly instructed the jury and

made an affirmative finding of a deadly weapon in the judgment. We also conclude

appellant waived his complaint about the admission of extraneous offenses by failing

to object at trial on the same grounds asserted in this appeal. We affirm.

Background

The deceased, Galen "Sparky" Sczech, and Patrick Smoley, a friend, were

walking toward their car at around two in the morning after drinking at a bar. As

Sczech and Smoley were walking through the parking lot, appellant began to quickly

back his car out of its parking spot, nearly hitting Sczech and Smoley, who were

behind appellant's car at the time. Sczech and Smoley each jumped to one side of

appellant's car to avoid being hit and slapped the side of appellant's car with an open

palm to get appellant's attention. Smoley used an obscenity towards appellant and

told him to pay attention.

According to Smoley, he and Sczech walked away from appellant after

slapping his car, but appellant stepped out of his car. Appellant yelled, "Don't hit my

car. Don't hit my car." Sczech turned to walk back toward appellant. Smoley tried

to stop Sczech, but Sczech pushed Smoley away. Sczech had his hands to his sides

as he walked a couple of feet toward appellant at a "regular" pace. At that point,

appellant pointed a gun at Sczech. As appellant stood about five to eight feet from

Sczech, appellant fired the gun once, causing Sczech to fall. Smoley explained that

he and Sczech were unarmed and made no threats toward appellant.

Appellant gave a different version of the events. According to appellant, after

Sczech and Smoley slapped appellant's car, Sczech followed appellant as appellant

walked back to his car. Sczech told appellant, "You're a dead man walking." Sczech

used his finger to "stab" at appellant's chest. Sczech yelled obscenities at appellant,

then Smoley led Sczech away from appellant. After a short period of time, appellant

heard someone yell an obscenity and saw Smoley and Sczech coming toward him.

Appellant pulled out a gun that he had in his pocket. Appellant pointed the gun at

them, but Sczech was undeterred and he continued to come towards appellant.

Appellant explained he shot Sczech in self-defense because he feared he would

receive serious bodily injury.

After appellant testified, the State made a proffer of the rebuttal extraneous

offense evidence it intended to introduce, and appellant objected to the admission of

the rebuttal evidence on various grounds. Appellant objected to testimony from

Hunter Cage on the grounds that no evidence showed appellant was the aggressor

against Cage and no criminal charges were filed against appellant for the incident

with Cage. Appellant objected to testimony from Grant Johnson, asserting the

testimony was based on hearsay, appellant was not the first aggressor, appellant only

threw soda water, and no assault charges were filed. Appellant objected that

testimony from Steven Solis was speculative because Solis never saw a gun placed

to Solis's back and appellant said the object was a flask. Appellant objected to all of

these witnesses by claiming the evidence was speculative, overly prejudicial, and

lacked any probative value. The trial court ruled it would admit the extraneous

evidence. Cage, Solis, and Johnson then testified in the rebuttal phase of trial

concerning extraneous offenses committed by appellant. The trial court granted

appellant's request for a limiting instruction and gave the limiting instruction when

the evidence was admitted and again in the written instructions to the jury.

When both sides rested, the trial court's charge allowed the jury to find

appellant guilty of murder, guilty of manslaughter, or not guilty. The charge

instructed the jury to find appellant not guilty if it determined he reasonably believed

that his use of deadly force was immediately necessary to protect himself against

Sczech's use or attempted use of unlawful deadly force. The trial court limited the

deadly force instruction by telling the jury that the defendant's use of force against

another was not justified if the defendant sought an explanation from or discussion

with the other person concerning the defendant's differences with the other person

while the defendant was carrying a weapon in violation of the law.

Neither the guilt nor punishment phase of trial contained a special issue asking

the jury to separately determine whether appellant used or exhibited a deadly weapon

during the commission of the offense. However, in accordance with the jury's

finding that appellant shot Sczech with a deadly weapon, namely a firearm, the trial

court made an affirmative finding of a deadly weapon in the judgment.

Limitation on the Right of Self-Defense

In his first issue, appellant contends the instruction on the right to arm himself,

which limited the self-defense charge, was a comment on the weight of the evidence.

Appellant contends "the jury could not have disregarded the trial [c]ourt's charge,

since it effectively negated the very real elements of fear and the danger of the use of

deadly force by two large men that the Appellant felt, and undercut completely the

charge of self-defense generally." Appellant asserts the limitation on self-defense

"has the exact same effect as to deny the Appellant a charge on self-defense

altogether, because it focuses the jury on his action, not the apparent danger he was

in" and "because the jury is asked to focus its deliberations on whether the Appellant

should or should not have and [sic] a gun at all, not whether he was justified in using

it."

When reviewing charge errors, an appellate court must first determine whether

error actually exists in the charge. Middleton v. State , 125 S.W.3d 450, 453 (Tex.

Crim. App. 2003). Only if the court finds error do we proceed to the second step that

requires examination of harm resulting from the error. Id.

The trial court may not issue an instruction that by its very nature is a comment

on the weight of the evidence. See Brown v. State , 122 S.W.3d 794, 798 (Tex. Crim.

App. 2003). Article 36.14 of the Code of Criminal Procedure requires the trial judge

to give the jury:

a written charge distinctly setting forth the law applicable to the case;

not expressing any opinion as to the weight of the evidence, not

summing up the testimony, discussing the facts or using any argument

in his charge calculated to arouse the sympathy or excite the passions of

the jury.

Id. at 797 (quoting Tex. Code Crim. Proc. art. 36.14). "Texas courts are forbidden

from instructing the jury on any presumption or evidentiary sufficiency rule that does

not have a statutory basis." Id . at 799.

The penal code provides that a defendant is justified in using deadly force

when he has a reasonable belief that it is immediately necessary to protect himself

from another person's use of deadly force. See Tex. Penal Code Ann. §§ 9.31 (a),

9.32(a) (Vernon Supp. 2008). An exception to self-defense applies when the

defendant "sought an explanation from or discussion with the other person

concerning the [defendant's] differences with the other person while the [defendant]

was carrying a weapon in violation of Section 46.02." (1) Id. § 9.31(b)(5)(B). A charge

limiting a defendant's right to self-defense is properly given when (1) self-defense is

an issue; (2) there are facts in evidence that show that the defendant sought an

explanation from or discussion with the victim concerning their differences; and

(3) the defendant was unlawfully carrying a weapon. Lee v. State , 259 S.W.3d 785,

789 (Tex. App.--Houston [1st Dist.] 2008, pet. ref'd). If there is evidence raising the

issue, an instruction should be submitted. See Bumguardner v. State , 963 S.W.2d

171, 175 (Tex. App.--Waco 1998, pet. ref'd) (citing Matthews v. State , 708 S.W.2d

835, 838 (Tex. Crim. App. 1986)).

The three circumstances are present here. First, the jury charge instructs the

jury on the law of self-defense, stating that a person is justified in using force against

another when he reasonably believes the force is immediately necessary to protect

himself against another person's use of unlawful force. The charge also states that

if the jury finds the defendant acted reasonably, they must find him not guilty and any

doubt should be resolved in favor of the defendant. The charge then explains the law

of provocation, stating that if the defendant intended to bring on the difficulty with

the victim, the jury should find the defendant guilty of murder. The charge then

limits the deadly force instruction, as follows:

You are further instructed as part of the law of this case, and as a

qualification of the law on self-defense, that the use of force by a

defendant against another is not justified if the defendant sought an

explanation from or discussion with the other person concerning the

defendant's differences with the other person while the defendant was

carrying a weapon in violation of the law. A person commits an offense

if he intentionally, knowingly, or recklessly, carries on or about his

person a handgun. "Handgun" means any firearm that is designed,

made, or adapted to be fired with one hand.

The second factor, which asks whether there are facts in evidence that show

that the defendant sought an explanation from or discussion with the victim

concerning their differences, is also met. Some evidence raises the issue that

appellant was unlawfully carrying a weapon at the time he claims he acted in self-defense. Smoley testified that he and Sczech walked away from appellant after they

slapped appellant's car. As they walked away, appellant, while holding a firearm,

yelled at Sczech and Smoley, telling them not to "hit" his car. Smoley's testimony

shows appellant, while armed with the firearm, pursued a discussion with Smoley and

Sczech about their having slapped appellant's car.

Concerning the third factor, appellant's testimony did not provide any lawful

basis for him to carry a weapon. The jury could reasonably conclude the appellant

was carrying the weapon in violation of the penal code. Based on the evidence

admitted at trial, the trial court did not err by instructing the jury that it should find

against appellant on his claim of self-defense if it found, beyond a reasonable doubt,

that deadly force was used by appellant when he was seeking a discussion while

unlawfully carrying a weapon. See Lee , 259 S.W.3d at 790-91 (holding evidence

raised issue that Lee had prior dispute with Alexander, and some evidence existed

that Lee was seeking a discussion with Alexander when he shot Alexander because

Lee walked up and spoke to Alexander about subject of their disagreement while

unlawfully carrying weapon); Fink v. State , 97 S.W.3d 739, 741, 743 (Tex.

App.--Austin 2003, pet. ref'd) (holding that trial court did not err by instructing jury

on seeking explanation when evidence showed that Fink went to his apartment after

verbal altercation with victim and immediately returned to scene armed with firearm

"to see if the guy was coming after [him]") ; Bumguardner , 963 S.W.2d at 175-76

(holding evidence raised issue that Bumgaurdner sought explanation from victim

because evidence existed that showed Bumguardner had differences with victim,

demanded to know where his wife was, and yelled at victim while unlawfully

carrying weapon, and self-defense was submitted to jury). Because there was

evidence raising the issue and the jury charge conformed to the statutory requirements

in the penal code, the instruction was not a comment on the weight of the evidence.

See Brown , 122 S.W.3d at 802 (holding instruction was impermissible comment on

weight of evidence because instruction "fail[ed] to clarify the law for the jury"). We

overrule appellant's first issue.

Extraneous Offenses

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

extraneous offenses during the guilt or innocence phase of trial because "the 'false

impressions' which supposedly needed to [b]e rebutted were created by the State on

cross-examination of the defendant ." The State responds that error is waived because

appellant never asserted that objection to the evidence to the trial court.

"As a general rule, the defensive theory that the State wishes to rebut through

the use of extraneous offense evidence must be elicited on direct examination by the

defense and may not by elicited by 'prompting or maneuvering' by the State."

Wheeler v. State , 67 S.W.3d 879, 885 (Tex. Crim. App. 2002) (citing Shipman v.

State , 604 S.W.2d 182, 185 (Tex. Crim. App. 1980) (stating that State "may not rely

on its own questioning" to get into collateral matters, extraneous offenses, and bad

acts that "would otherwise be inadmissible")).

To preserve a complaint for appellate review, a defendant must make a timely,

specific objection to the trial court. Tex. R. App. P. 33.1(a); see Wilson v. State , 71

S.W.3d 346, 349 (Tex. Crim. App. 2002). An objection stating one legal basis may

not be used to support a different legal theory on appeal. See Heidelberg v. State , 144

S.W.3d 535, 537 (Tex. Crim. App. 2004). A complaint on appeal that does not

comport with an objection made at trial does not preserve appellate review of the

complaint. Wilson , 71 S.W.3d at 349 ; Goff v. State , 931 S.W.2d 537, 551 (Tex. Crim.

App. 1996); Flores v. State , 125 S.W.3d 744, 747 (Tex. App.--Houston [1st Dist.]

2003, no pet.).

Appellant never asserted any complaint at trial that the State created, through

its own questioning, the theory that it later sought to rebut with extraneous evidence.

At trial, appellant objected only under Rule 404(b) to the extraneous offense

evidence. Tex. R. Evid. 404(b) (extraneous evidence must have probative value

beyond character conformity). Because appellant failed to object to the evidence on

the ground on which he asserts on appeal, error is waived. See Heidelberg , 144

S.W.3d at 537 . We overrule appellant's second issue.

Deadly Weapon Finding

In his third issue, appellant contends the trial court's judgment and sentence

should be reformed to reflect that there was no affirmative finding on the use of a

deadly weapon. Appellant objects to the finding because the jury never expressly

made that finding in the guilt or punishment phase.

An affirmative finding of a deadly weapon is properly made when the record

shows (1) the indictment alleges "a deadly weapon: to wit, a firearm"; (2) the jury

charge application paragraph for the lesser-included offense of manslaughter requires

a finding, beyond a reasonable doubt, that the defendant used "a deadly weapon:

to-wit, a firearm"; and (3) the jury's verdict finds the defendant guilty of the

lesser-included offense of manslaughter, with the express finding that he used a

firearm, which is a deadly weapon per se, to cause the complainant's death. Lafleur

v. State , 106 S.W.3d 91, 99 (Tex. Crim. App. 2003). The requirement for an "express

finding" of a deadly weapon is satisfied "by looking to the explicit requirements of

the application paragraph as well as to the indictment and verdict form." Id. at 98 .

In Lafleur , the Court of Criminal Appeals held the trial court properly made an

affirmative finding of a deadly weapon in the judgment based on a record that showed

Lafleur was indicted for murder for shooting Walker with "a deadly weapon, to-wit:

a firearm"; there was no dispute at trial that Lafleur shot and killed Walker with a

firearm; the jury charge application paragraph allowed the jury to find Lafleur guilty

for recklessly causing the death of Walker by shooting Walker with a deadly weapon,

to-wit: a firearm; and the jury found Lafleur guilty of manslaughter. See id. at 99 .

The conditions for making an affirmative finding of a deadly weapon are

satisfied here. See id. The first factor is satisfied by the indictment that pleads

appellant committed murder with "a deadly weapon, namely a firearm." The second

factor is met by the instructions in the jury application paragraph for the

lesser-included offense of manslaughter that require a finding, beyond a reasonable

doubt, that appellant caused the death of Szcech by shooting him with "a deadly

weapon, namely a firearm." The third factor is satisfied by the verdict form that

shows the jury found appellant guilty of manslaughter under the terms described in

the jury instructions, which require a finding that appellant shot Szcech with a deadly

weapon, namely a firearm. See id. Moreover, there was no dispute that appellant

shot Szcech with a firearm, which is per se a deadly weapon; the dispute was whether

Szcech was acting in defense of himself at the time of the shooting. Because the

record shows the jury found appellant used a deadly weapon, namely a firearm, the

trial court properly made an affirmative finding of a deadly weapon in the judgment.

See id. We overrule appellant's third issue.

Conclusion

We affirm the judgment of the trial court.

Elsa Alcala

Justice

Panel consists of Chief Justice Radack, and Justices Alcala and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).

1. Section 46.02 of the Texas Penal Code states, "A person commits an offense if he

intentionally, knowingly, or recklessly carries on or about his person a handgun,

illegal knife, or club . . . ." Tex. Penal Code Ann. § 46.02 (a) (Vernon Supp. 2008).