Texas Department of Public Safety v. Marvin Todd McDonald--Appeal from 1st District Court of Jasper County

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Laws-info.com » Cases » Texas » 9th District Court of Appeals » 2004 » Texas Department of Public Safety v. Marvin Todd McDonald--Appeal from 1st District Court of Jasper County

State: Texas

Court: Texas Northern District Court

Docket No: 09-03-00587-CV

Case Date: 02/12/2004

Plaintiff: Texas Department of Public Safety

Defendant: Marvin Todd McDonald--Appeal from 1st District Court of Jasper County

Preview:Daren Laterre Jones v. The State of Texas--Appeal from 371st District Court of Tarrant County
IN THE TENTH COURT OF APPEALS

No. 10-05-00038-CR Daren Laterre Jones, Appellant v. The State of Texas, Appellee

From the 371st District Court Tarrant County, Texas Trial Court No. 0852004D MEMORANDUM Opinion

A jury convicted Daren Laterre Jones of capital murder. The State waived the death penalty, and Jones was sentenced to life imprisonment. Jones contends in three issues that: (1) the evidence is legally insufficient to disprove beyond a reasonable doubt that he acted in self defense; (2) the court erred by submitting an instruction on provoking the difficulty; and (3) the court abused its discretion by overruling his Batson challenge. We will affirm. Self Defense Jones contends in his first issue that the evidence is legally insufficient to disprove beyond a reasonable doubt that he acted in self defense. Section 9.31(a) of the Penal Code provides in pertinent part, [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 2003). The version of section 9.32 in effect in 1993 when this offense was committed provided: 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 of this code;

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(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 immediately 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. Act of May 29, 1983, 68th Leg., R.S., ch. 977, 5, 1983 Tex. Gen. Laws 5311, 5316-17 (amended 1993) (current version at Tex. Pen. Code Ann. 9.32 (Vernon 2003)). When we review the legal sufficiency of the evidence to support a jury s rejection of a self-defense claim, we determine 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 murder beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991); Miller v. State, 177 S.W.3d 177, 183 (Tex. App. Houston [1st Dist.] 2005, pet. ref d); Vasquez v. State, 2 S.W.3d 355, 358 (Tex. App. San Antonio 1999, pet. ref d). The offense occurred after Jones chased a vehicle from his apartment complex around 2:30 in the morning because he thought the occupants had burglarized his car. Jones pulled alongside the other car. There were four men in the car, two of whom were fatally shot by Jones. An off-duty security guard who was walking his dog at the time witnessed the shooting. According to this witness, he heard between five and twelve gunshots which came from only Jones s car. After the shooting, the victims car glided downhill, jumped a curb, and crashed into a fence. The guard testified that onlookers who appeared thereafter accused the occupants of breaking into cars because they saw that one or more of the occupants had screwdrivers, which several witnesses testified were an essential tool for vehicle burglaries. A man who was entering his apartment at the time heard nine or ten gunshots. It sounded to him as though only one firearm was involved. He later heard one of the occupants of the victims car say they were only stealing hubcaps. Another off-duty security guard testified that he heard about six shots, but he could not say whether they were fired back and forth between the cars or came from only one car. However, it sounded to him as though two different guns were involved because the first shot sounded different than the others. After the victims car crashed, he noticed someone leave the scene carrying something shiny, which he thought could have been a gun, and tossing the shiny object to someone on the other side of a fence. He was not certain whether the person who did this was an occupant of the car or whether he returned to the scene afterward. A crime scene detective testified that she found ten bullet holes in the victims car. She recovered eleven 9 millimeter casings near the curb and one .380 casing a good distance from the others. She also recovered a lug nut near the casings. She noted that one of the deceased had a screwdriver in his pocket. One of the two survivors, Alfred King, testified that they had been stealing and burglarizing cars on the evening in question. However, he denied that they burglarized Jones s car. King testified that, when they left Jones s apartment complex, Jones was following them at a high rate of speed. Jones flashed his lights at them then pulled alongside. King testified that the driver of the car he was riding in, Antoine Drennon, said that he recognized Jones s car. According to King, Jones asked them What s up? then started shooting. King recognized the shooter as a man he knew with the street name Scooby. He identified Jones at trial as the shooter. King conceded on cross-examination that he himself was armed with a .380 on the occasion in question. However, King insisted that he did not have time to draw his weapon and shoot. King also testified that he is a convicted felon. The other survivor, Raeford McLane, testified that they were driving in the parking lot of Jones s apartment complex looking for cars to burglarize. According to McLane, Jones drove toward them in the parking lot and almost hit their car before blocking an exit. After they left through another exit, Jones came after them then pulled alongside. McLane

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testified that Drennon said he knew the driver of the other car (Jones). McLane identified Jones at trial as the shooter. According to McLane, Jones asked them What s up with my rims?, which McLane construed as an accusation that they had stolen the rims from Jones s car. When McLane asked Jones what he was talking about, Jones began shooting. McLane testified that no shots were fired from the victims car. He too is a convicted felon. Jones testified that he heard a noise outside his apartment and opened the door to investigate. He saw two men breaking into his car. One was in the front seat, and the other was crouched near a back tire. He shouted at them, and they ran away. Jones inspected his car and saw that the radio had been forcibly removed from the dash. He also noticed that two lug nuts had been removed from the back tire where one of the men was crouched. Jones ran inside, dressed, grabbed his 9 millimeter handgun, then returned to his car to give chase. He saw the two men running along the apartment complex fence. He then saw a car leaving the complex with the two men and two others in it. He followed. The car stopped, and he pulled alongside. He rolled down his window and asked the men in the car about his radio. They did not respond to this question but asked Jones about some females they had seen in his apartment complex. They talked for about one and one-half minutes. Jones asked them to follow him to a nearby store so he could call the police and have them resolve the matter. He testified that the front passenger then told the driver to duck and displayed a handgun. A passenger in the back seat also displayed a handgun and fired a shot at Jones. Jones stated that he then picked up his gun, started shooting at the other car, and drove away. He testified that he shot at them because he was in fear for his life. Jones did not report the incident to the police. He testified that he is known by the nickname Scooby. Like King and McLane, Jones is a convicted felon. Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that Jones intentionally or knowingly killed the two victims by shooting them. See Miller, 177 S.W.3d at 184; Vasquez, 2 S.W.3d at 358. With regard to self-defense, the critical issue is whether the jury believed that the men in the victims car displayed firearms and fired a shot at Jones first. This is supported by: (1) the testimony of the security guard who believed two firearms were involved and who testified that one of the occupants of the victims car ran from the scene and threw away what the guard thought to be a gun; (2) King s testimony that he was carrying a .380 handgun; (3) Jones s testimony; and (4) the crime scene investigator s testimony that she recovered a .380 casing. However, the jury could have refused to believe Jones s testimony, could have discounted the security guard s opinion about the number of firearms involved, could have attributed other reason(s) for one of the occupants to have thrown away a gun, and could have concluded that the .380 casing was not related to the occurrence in question. Instead, the jury could have chosen to believe the testimony of the other two civilian witnesses that all the shots were fired from one car and King s and McLane s testimony that Jones shot at them without provocation. Therefore, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt against Jones on the self-defense issue. See Saxton, 804 S.W.2d at 914; Miller, 177 S.W.3d at 184; Vasquez, 2 S.W.3d at 358. Accordingly, we overrule Jones s first issue. Provoking The Difficulty Jones contends in his second issue that the court erred by submitting an instruction on provoking the difficulty, which is a limitation on a self-defense claim. Section 9.31(b)(4) provides that the use of force against another is not justified: if the actor provoked the other s use or attempted use of unlawful force, unless: (A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he

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cannot safely abandon the encounter; and (B) the other nevertheless continues or attempts to use unlawful force against the actor. Tex. Pen. Code Ann. 9.31(b)(4) (Vernon 2003). An instruction on provocation should only be given when there is evidence from which a rational jury could find every element of provocation beyond a reasonable doubt. Smith v. State, 965 S.W.2d 509, 514 (Tex. Crim. App. 1998); accord Fink v. State, 97 S.W.3d 739, 742 (Tex. App. Austin 2003, pet. ref d). Those elements are: (1) that the defendant did some act or used some words which provoked the attack on him, (2) that such act or words were reasonably calculated to provoke the attack, and (3) that the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other. Smith, 965 S.W.2d at 513; Fink, 97 S.W.3d at 742. We examine the evidence supporting these elements in the light most favorable to giving the instruction. Smith, 965 S.W.2d at 514; Fink, 97 S.W.3d at 742. Here, Jones himself testified that he armed himself with the 9 millimeter handgun and gave chase to the car occupied by men whom he believed had burglarized his car. King testified that Jones displayed his weapon and started firing almost immediately after pulling alongside them. McLane testified that Jones accused them of stealing his rims, then began to shoot. This constitutes evidence from which a rational juror could find that Jones acted and spoke in a manner which provoked the alleged attack on him. See Smith, 965 S.W.2d at 514-15; Fink, 97 S.W.3d at 742. An act is reasonably calculated to cause an attack if it is reasonably capable of causing an attack, or if it has a reasonable tendency to cause an attack. Some provoking acts or words can by their own nature be legally sufficient to support a jury finding. Smith, 965 S.W.3d at 517. Viewing the evidence in the light most favorable to giving the instruction, a rational juror could find that Jones s acts and words were reasonably calculated to provoke the alleged attack or had a reasonable tendency to do so. See Smith, 965 S.W.3d at 517-18; Fink, 97 S.W.3d at 742. The defendant s intent may be inferred from his words and acts before, during, and after the occurrence in question. See Smith, 965 S.W.2d at 518. Viewing the evidence in the light most favorable to giving the instruction, a rational juror could have found from the circumstances surrounding the shooting that Jones s acts and words were intended to create a pretext for inflicting harm on the victims. See Smith, 965 S.W.2d at 518-19; Fink, 97 S.W.3d at 742. Therefore, after viewing the evidence in the light most favorable to giving the instruction on provocation, we conclude that the court did not err by submitting the instruction. Accordingly, we overrule Jones s second issue. Batson[1] Challenge Jones contends in his third issue that the court abused its discretion by overruling his Batson challenge. A Batson challenge based on race[2] involves a three-step inquiry: (1) the defendant must make a prima facie showing that a venire member was peremptorily excluded because of race; (2) the State must provide race-neutral reasons for the challenged peremptory strike; and (3) the defendant must rebut the State s explanations. See Tex. Code Crim. Proc. Ann. art. 35.261(a) (Vernon 1989); Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003). Here, Jones s issue concerns the State s exercise of a peremptory challenge against venire member number 39, an African-American male. The State concedes in its brief that Jones made a prima-facie showing that this potential juror was struck because of his race. In response, the State offered three reasons for striking him: (1) he indicated on a juror questionnaire that he considered rehabilitation to be the most important consideration when assessing punishment; (2) he indicated that he

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has a cousin who is an attorney; and (3) he has the same last name as the defendant. We accept these as race-neutral explanations. See Adanandus v. State, 866 S.W.2d 210, 224-25 (Tex. Crim. App. 1993) (preference for rehabilitation a valid, race-neutral reason); Victor v. State, 995 S.W.2d 216, 222 (Tex. App. Houston [14th Dist.] 1999, pet. ref d) (same); Umoja v. State, 965 S.W.2d 3, 9-10 (Tex. App. Fort Worth 1997, no pet.) (same); United States v. Kelley, 140 F.3d 596, 606-07 (5th Cir. 1998) (fact that juror had last name similar to defendant s a valid, race-neutral reason). In response, Jones did not rebut the last two explanations. He challenged the State s assertion that it struck the juror because of his preference for rehabilitation because the State did not strike another juror who made the same response on her juror questionnaire. However, the State observed that there were eight members of the venire panel who responded in this manner on their questionnaires, and the State struck all but one of them. Therefore, the court s ruling on Jones s Batson challenge is supported by the record and is not clearly erroneous. See Simpson, 119 S.W.3d at 268. Accordingly, we overrule Jones s third issue. We affirm the judgment. FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna ( Chief Justice Gray provides a Special Note to clarify his participation in this case. ) Affirmed Opinion delivered and filed February 8, 2006 Do not publish [CRPM]

[1] Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). [2] Batson challenges may also be based on gender or ethnicity. See J.E.B. v. Alabama, 511 U.S. 127, 146, 114 S. Ct. 1419, 1430, 128 L. Ed. 2d 89 (1994); Hernandez v. New York, 500 U.S. 352, 370-72, 111 S. Ct. 1859, 1872-73, 114 L. Ed. 2d 395 (1991); Guzman v. State, 85 S.W.3d 242, 245 (Tex. Crim. App. 2002); Splawn v. State, 160 S.W.3d 103, 114 (Tex. App. Texarkana 2005, pet. ref d). However, article 35.261 applies only to race-based peremptory challenges. See Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon 1989).

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