Wall v. State

JUSTIN LEE WALL, Appellant v. THE STATE OF TEXAS

No. 02-18-00065-CR

Court of Appeals Second Appellate District of Texas at Fort Worth

May 9, 2019

On Appeal from the 213th District Court Tarrant County, Texas

Trial Court No. 1427734D

Before Sudderth, C.J.; Gabriel and Wallach, JJ.¹

Memorandum Opinion by Justice GabrielMEMORANDUM OPINION

Appellant Justin Lee Wall appeals from his conviction for the murder of Steven Scott. In two issues, he argues that the trial court abused its discretion by excluding impeachment evidence and that he was egregiously harmed by the trial court's failure to properly charge the jury on his justification defense of self-defense. We conclude that Wall was egregiously harmed by the error in the jury charge; thus, we reverse the trial court's judgment and remand for a new trial.

I. BACKGROUND

Carl Christian, Scott, Scott's wife, and the Scotts' two children lived in Christian's grandmother's house. On August 31, 2015, Wall was at the house drinking alcohol and smoking marijuana with Christian and Scott. Wall had a gun with him, which he showed several times throughout the day, and he argued loudly with Scott at one point. After Wall, Scott, and Christian went to a back room of the house, Wall continued to brandish his gun. Christian told Wall to leave, but Scott said Wall could stay because "it would be all right." Christian never saw Scott try to tie Wall up or keep him from leaving, but he heard Scott tell Wall that they should start their own gang and that Wall would have to get his "Aryan tattoos" removed. Shortly after Christian left the room, he heard gunshots. Scott's wife also heard gunshots. Christian ran back into the room and saw that Scott was lying on the floor between the bedroom door and a dresser, bleeding heavily, and that Wall was gone. Scott diedfrom the gunshots, which Wall (who was two inches shorter than Scott) had fired from approximately one foot away in a downward trajectory.

After Wall fled, he called his grandmother to pick him up. Wall then called 911, but immediately disconnected the call. When 911 called Wall's number, Wall, apparently believing that his grandmother was calling him, answered: "Go ahead, come around, I'm at Carl's house." When the operator told Wall that it was 911 calling, Wall responded, "Someone's trying to kill us" before hanging up.

When Wall's grandmother arrived at Christian's house, Wall was "crying, sobbing, carrying on," and he told her, "Oh, grandma, I had to shoot Steve." On their way back home, Wall told his grandmother to pull over so he could drop his gun in a storm drain. The next morning, Wall's mother took him to a hospital because of his mental state. Wall told his mother that he had shot Scott in self-defense. When the police arrived at Wall's mother's home that afternoon, she told them that he was still at the hospital. When Wall was discharged, he was arrested for Scott's murder. Wall waived his rights, admitted to the officers that he had shot and killed Scott, and showed the officers where to find his gun; but he again asserted that he had shot Scott in self-defense. Wall told the officers that when Christian left the room, Scott told Wall that he was in a gang, that several gang members wanted Wall dead, that Wall was his "insurance policy," and that he would take Wall to have a meeting with a gang member. Wall asserted that Scott would not let him leave and came at him, saying that he would "[s]nap [Wall's] neck," in an attempt to tie Wall up and forcibly takehim to the meeting. Before Scott could do so, Wall shot him once. When Scott kept moving forward, Wall "continued to fire [multiple] rounds at Mr. Scott."²

Wall was indicted with Scott's murder and represented himself at trial with standby counsel. See Tex. Code Crim. Proc. Ann. art. 1.051(f).³ Because Wall admitted to killing Scott, the only contested issue for the jury was self-defense. The jury found Wall guilty of Scott's murder, and the trial court sentenced him to 45 years' confinement. Wall's motion for new trial was deemed denied. See Tex. R. App. P. 21.8(c).

II. JURY CHARGE

Wall asserts that although he did not object to the jury charge, he was egregiously harmed by the charge's (1) failure to instruct the jury that a reasonable doubt on self-defense required acquittal, (2) failure to explain the State's burden regarding Wall's defense, and (3) inclusion of a converse application paragraph on the defense that instructed the circumstances under which the jury could reject Wall's defense. See Vega v. State, 394 S.W.3d 514, 515-16 (Tex. Crim. App. 2013) (holding "when a trial judge instructs on [an unrequested] defensive issue, he must do socorrectly; thus any error in the charge actually given is subject to review" for egregious harm); see also Mendez v. State, 545 S.W.3d 548, 553 (Tex. Crim. App. 2018) (applying Vega).

A. ERROR ANALYSIS

In our review of unpreserved jury-charge error, we first determine whether error occurred; if not, our analysis ends. See Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). Here, the State concedes that the charge contained error because it did not "properly instruct the jury on the issue of self-defense." Indeed, the application instructions on Wall's defense were erroneous as a matter of law. See Tex. Penal Code Ann. § 2.03(d); Alonzo v. State, 353 S.W.3d 778, 781 (Tex. Crim. App. 2011); Barrera v. State, 982 S.W.2d 415, 416 (Tex. Crim. App. 1998); Fennell v. State, 424 S.W.2d 631, 632 (Tex. Crim. App. 1968) (op. on reh'g). See generally Comm. On Pattern Jury Charges, State Bar of Texas, Texas Criminal Pattern Jury Charges: Criminal Defenses PJC 32.2-.3 (2018) (pattern charges for self-defense involving deadly force to protect against deadly force by another and for self-defense involving deadly force) (hereinafter cited as "PJC: Criminal Defenses").

B. EGREGIOUS-HARM ANALYSIS

Accordingly, our question becomes whether the identified errors in the charge egregiously harmed Wall. See Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013); Oursbourn v. State, 259 S.W.3d 159, 180 (Tex. Crim. App. 2008). Egregious harm is a "high and difficult standard" to meet, and such a determination must be"borne out by the trial record." Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015). Egregious harm occurs if the error was calculated to injure Wall's rights, if Wall did not have a fair and impartial trial, or if the error vitally affected a defensive theory. See Tex. Code Crim. Proc. Ann. art. 36.19; State v. Ambrose, 487 S.W.3d 587, 597 (Tex. Crim. App. 2016). To make this determination, we consider the entire charge; the state of the evidence, including contested issues and the weight of the probative evidence; the parties' jury arguments, including any statements made to the jury by the State, Wall, or the trial court during trial; and any other relevant information in the record. See Arrington v. State, 451 S.W.3d 834, 840, 844 (Tex. Crim. App. 2015); Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). We look not for theoretical harm but for actual harm. See Arrington, 451 S.W.3d at 840, 844; Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011).

1. The Entire Charge

As Wall recognizes, the charge "defined self-defense in the abstract and laid out general definitions":

Upon the law of self-defense, you are instructed that 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 person's use or attempted use of unlawful force. The use of force against another is not justified in response to verbal provocation alone.

A person is justified in using deadly force against another if he would be justified in using force against the other in the first place, as above set out, and when he reasonably believes that such force is immediately necessary to protect himself against the other person's useor attempted use of unlawful deadly force, and if a reasonable person in Defendant's situation would not have retreated.

"Reasonable belief," as used herein, means a belief that would be held by an ordinary and prudent person in the same circumstances as the Defendant.

The person's belief that the deadly force was immediately necessary as described above is presumed to be reasonable if the person knew or had reason to believe that person against whom the deadly force was used unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment; unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or was committing or attempting to commit an offense other than a Class C Misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

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

A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is 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.

See Tex. Penal Code Ann. §§ 1.07(a)(42); 9.01(3); 9.31(a)-(b); 9.32(a), (c). However, the application paragraph applying those general principles to the specific facts was, as Wall states, a "converse application instruction" that informed the jury that it was required to "find against" Wall's defense if it found beyond a reasonable doubt that Wall's beliefs relevant to the defense were unreasonable or that a reasonable person would have retreated:

If you find from the evidence beyond a reasonable doubt: (1) that at the time

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