Benavides v. State

¶1Motion for Rehearing of En Banc Opinion

¶2This case was argued before a panel consisting of Justices Cohen, Andell, and O’Connor. Justices Andell and O’Connor voted to reverse. However, no panel opinion was ever issued. The only opinion that issued in this case was issued by the en banc court, with Justices Andell and O’Connor dissenting.

¶3The appellant filed a motion for rehearing arguing the Court improperly considered this case en banc before the panel issued its opinion. The appellant contends the proper time for submission of a case for en banc consideration, with or without a motion, is after the original panel has issued its opinion and the parties are notified of the en banc submission. If the Court had notified the appellant that the case would be considered en banc, the appellant says he would have moved to recuse two of the justices who were not members of the original panel.

¶4The majority of the en banc court considered his point of error as a motion to recuse and denied recusal. The en banc court then overruled the motion for rehearing without addressing the issue in point of error one: may a court consider a panel case en banc without notice to the parties and before the panel issues an opinion?

¶5Texas Rule of Appellate Procedure 47.1 requires the courts of appeals to address every issue raised and necessary to the final disposition of the appeal. Johnson v. State, 938 S.W.2d 65, 65 (Tex.Crim.App.1997) (vacating court of appeals’ judgment and remanding for consideration of issue raised, but not addressed); see also Bushell v. Dean, 803 S.W.2d 711, 712 (Tex.1991) (reversed because court of appeals did not address all points that affected the judgment). If the Court of Criminal Appeals grants a petition for discretionary review on this issue, it will reverse and *534remand the cause back to this Court for our consideration of the appellant’s point of error one; thus, prolonging an already old case.

¶6The issue whether the full court may consider the merits of a case before a panel issues its opinion and without notice to the appellant is an important one. It is particularly important in a fact-intensive case such as this. The reporter’s record in this case consists of 28 volumes; the briefs were long and complicated. Only three justices read all the briefs before oral argument, participated in a conference before oral argument, heard oral argument, and participated in a post-submission conference.

¶7The issue is also important to the jurisprudence of the state. The clerk of the court of appeals is required to send the parties 21 days notice of, among other things, the names of the justices on the panel who will consider the case. Tex. R.App. P. 39.9(d). Rule 39.9(d) provides that the notice is “subject to change by the court.” If a court can consider a panel case en banc, without notice to the parties, careful litigants must preemptively move to recuse any justice on the court who the litigant believes should be recused, even if the justice is not on the panel assigned to the case. I believe the Court should respond to the appellant’s point of error one. The Court did not satisfy Rule 47.1 when it denied recusal.

¶8Sufficiency of the Evidence

¶9In points of error three and four, the appellant contends the evidence is insufficient to support his conviction for murder because he acted in self-defense.

¶10The State has the burden of persuasion in disproving evidence of self-defense. Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App.1991); Wilkerson v. State, 920 S.W.2d 404, 406 (Tex.App.—Houston [1st Dist.] 1996, no pet.). This is not a burden of production, te., one which requires the State affirmatively to produce evidence refuting the self-defense claim. Rather, it is a burden requiring the State to prove its case beyond a reasonable doubt. Saxton, 804 S.W.2d at 913-914; Wilkerson, 920 S.W.2d at 406.

¶11The evidence relating to the elements of self-defense is as follows.

¶121. Did the appellant know Officer Early was a peace officer? The only evidence supporting the verdict in this regard is that several officers yelled “Police” and that the police had raided the compound three months earlier. Considering that fake police raided the compound in July, the officers in the November raid were heavily camouflaged, the raid took place at 5:30 a.m., was conducted a military or terroristic fashion, and the appellant had approximately three seconds-2 to respond after being awakened by flash-bang distraction devices, I would hold that no rational trier of fact could find the appellant knew Officer Early was a peace officer.

¶132. Would a reasonable person in the appellant’s position have retreated? Even viewing the evidence in the light most favorable to the prosecution, there is no evidence in the record that the appellant could have retreated. He was in a bedroom and the police were blocking the only door.

¶143. Did the appellant reasonably believe that the use of deadly force was immediately necessary? As with the second element, there is no evidence supporting the jury’s implied finding.

¶15The State’s entire argument under point three consists of the following:

Here, the jury had sufficient evidence so that they could reasonably conclude that the appellant did not act with reasonableness in using deadly force to defend himself or his property. When *535viewed in the light most favorable to the prosecution, the facts show that the appellant was awake when he was confronted by Officer Early. That is, the noise of the burglar bar door being forcibly removed, the flash and band from the distraction devices, and the SWAT team members yelling “police” were certainly sufficient to awaken him had he been asleep. Moreover, the evidence concerning the August raid showed that the appellant was familiar with SWAT team tactics and distractions devices. The fact that the appellant was not shot shows that the appellant likely shot first at Officer Early. Trial testimony showed that Officer Early was an experienced officer and SWAT team member armed with a semi-automatic weapon. He would not likely have missed the appellant had he been the first aggressor.

¶16The State’s argument is that, because Early was an experienced officer, the fact that he was shot (and not the appellant) proves that the appellant knew he was shooting a police officer. That is simply not evidence. Worse, it is piling inference upon inference, something that we are not permitted to do. Christopher v. State, 833 S.W.2d 526, 531 (Tex.Crim.App.1992); Richardson v. State, 834 S.W.2d 535, 537 (Tex.App.—Houston [1st Dist.] 1992, pet. ref’d). To adopt the State’s argument is to assume that all police officers are more accomplished marksmen than their defendant counterparts. We cannot assume that in a shoot-out in the dark between the police and a defendant, when the officer is shot (not the appellant), the appellant must have known he was shooting a police officer. The appellant could have shot blindly in the dark and fortuitously wounded the officer.

¶17I would hold the evidence is insufficient to support the jury’s murder verdict.

¶18Voluntary Manslaughter

¶19In point of error five, the appellant contends the trial court erred in refusing to instruct the jury on voluntary manslaughter.

¶20The en banc opinion holds that the evidence was sufficient to submit the charge on voluntary manslaughter. I agree with that part of the resolution of point of error five. I disagree with the en banc court that the refusal to submit the charge helped — not harmed — the appellant. I also disagree with the en banc court’s classification of the appellant’s defense of voluntary manslaughter as merely “an incidental theory of defense.” Voluntary manslaughter was not an incidental theory of defense. Only by classifying it as an incidental defense is the en banc court able to decide the error was harmless error; nay, even helpful error.

¶21Because Code of Criminal Procedure article 36.19 provides for a harmless-error analysis for charge error, we do not apply Texas Rule of Appellate Procedure 44.2(b). Tex.Code Crim. P. art. 36.19. Article 36.19 states:

Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.16, 36.17 and 36.18 has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. All objections to the charge and to the refusal of special charges shall be made at the time of the trial.

¶22Tex.Code Crim. P. art. 36.19.

¶23The Court of Criminal Appeals’ major interpretations of article 36.19 are found in Arline v. State and Almanza v. State. Arline, 721 S.W.2d 348 (Tex.Crim.App.1986); Almanza, 686 S.W.2d 157 (Tex.Crim.App.1984). In Almanza, the Court of Criminal Appeals observed that if the trial court’s charge error was subject to a timely objection at trial, “then reversal is required if the error is ‘calculated to injure the rights of the defendant’ which means no more than that there must be some harm to the accused from the error.” Almanza, 686 S.W.2d at 171. Essentially, this pronouncement means that under the “some *536harm” analysis, “[a]n error which has been properly preserved by objection will call for reversal as long as the error is not harmless.” Id.

¶24In Arline, the Court of Criminal Appeals explained the “some harm” analysis in Almanza. The Court said that the defendant must have suffered “ ‘some’ actual, rather than theoretical, harm from the error.” Arline, 721 S.W.2d at 351. “[T]he presence of any harm, regardless of degree, which results from preserved charging error, is sufficient to require a reversal of the conviction. Cases involving preserved charging error will be affirmed only if no harm has occurred.” Id.We determine the actual degree of harm “in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at 171.

¶25From this record, I would say it is obvious the appellant sustained some harm from the trial court’s refusal to submit a charge on voluntary manslaughter because the jury could have convicted him on that lesser included offense. Accordingly, I would sustain point of error five.