Opinion filed January 24, 2014




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-11-00338-CR
                                     __________

              JAMES CHRISTOPHER NORTH, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 350th District Court
                             Taylor County, Texas
                         Trial Court Cause No. 9790-D



                      MEMORANDUM OPINION
      The jury found James Christopher North guilty of the murder of Austin Dale
David, and it assessed his punishment at confinement for seventy years and a fine
of $10,000. The trial court sentenced him accordingly. We affirm.
      Appellant contends in two issues on appeal that the trial court (1) incorrectly
charged the jury as to the law of self-defense and (2) abused its discretion when it
refused to give the jury a “presumption of reasonableness” instruction. 1
      The grand jury indicted Appellant for murder after he shot and killed Austin
with a .40 caliber Glock pistol. A person commits the offense of murder if he
intentionally or knowingly causes the death of an individual. TEX. PENAL CODE
ANN. § 19.02(b)(1) (West 2011). A person also commits the offense of murder if
he intends to cause serious bodily injury and commits an act clearly dangerous to
human life that causes the death of an individual. Id. § 19.02(b)(2).
      Appellant does not challenge the sufficiency of the evidence. However, we
provide an outline of the evidence presented at trial to provide context for our
analysis of Appellant’s claims.
      Austin and his girlfriend, Stephanie Molina, were in her Ford Mustang.
Austin was driving, and they were headed south on Sayles Boulevard in Abilene.
They were on the way to a meeting of Stephanie’s college soccer team. Stephanie,
who was in the front passenger seat, testified that she was late for her meeting but
that Austin was neither driving recklessly nor in excess of the speed limit. Other
witnesses, however, testified that Austin was driving in a dangerous and reckless
manner and at speeds up to double the speed limit.
      As Austin and Stephanie traveled down Sayles, Appellant drove his pickup
in the same lane as, and came up behind, Stephanie’s Mustang. As Appellant’s
pickup approached the rear of the Mustang, Austin abruptly applied the brakes.
Stephanie testified that Appellant then drove around them and that Austin “was
flipping [Appellant] off.” After Appellant passed the Mustang, and when he came
to the stoplight at Sayles and 14th, he abruptly stopped in front of the Mustang.
Austin quickly applied the brakes to avoid hitting Appellant’s pickup from behind.
      1
       See TEX. PENAL CODE ANN. §§ 9.31, 9.32 (West 2011).

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       There were more than a dozen witnesses who saw both Appellant and Austin
stop their vehicles at the stoplight. Several eyewitnesses testified that the Mustang
did not hit the rear of Appellant’s pickup. Other witnesses testified that they heard
or assumed the Mustang had collided with Appellant’s pickup, but no witnesses
testified that they saw a collision. A surveillance video from a Shell gas station at
the corner of 14th and Sayles captured these initial events, and the video does not
show that the Mustang collided with Appellant’s pickup.
       After Appellant stopped his pickup, he immediately got out and walked
toward Austin and Stephanie, who were sitting in the Mustang behind Appellant’s
pickup. Several eyewitnesses testified that Appellant threw his arms in the air and
was angry, aggressive, and threatening toward Austin and Stephanie. No one
testified that Appellant stopped and checked his pickup for damage. Several
eyewitnesses thought that there would be a fight and that Appellant would attack
Austin; they also said they would have felt threatened by Appellant’s actions.
Appellant, who was 5'10" tall and weighed approximately 215 pounds, was larger
than Austin, who was 5'8" tall and weighed less than 150 pounds. Stephanie
testified that she felt very threatened by Appellant as he approached Austin and
her.
       As Appellant walked toward Stephanie and Austin, he stopped at the front of
the Mustang when Austin got out and pointed a nine millimeter, semiautomatic
Ruger handgun at Appellant. With the handgun raised, Austin yelled at Appellant
to get back in his pickup and leave. Appellant went back to his pickup and got in;
Austin got back into the Mustang. Stephanie testified that Austin put his handgun
back where it was originally kept in the vehicle. Witnesses differed on whether
Austin remained standing next to the Mustang with the handgun pointed at
Appellant until Appellant got back in his pickup or whether Austin walked
Appellant back to the pickup with the handgun pointed at Appellant. Several
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eyewitnesses testified that the encounter was over after Appellant got in his pickup
and Austin got in the Mustang.
      However, although Appellant returned to his pickup, after a few seconds, he
put his pickup in reverse and accelerated backward into the Mustang; Austin and
Stephanie were still sitting in the Mustang. The Shell station video also recorded
this action.   Witnesses testified that Appellant “floored” the accelerator and
“slammed” his pickup into the front of the Mustang. Appellant’s pickup pushed
the Mustang north on Sayles, in the opposite direction of traffic, and caused the
Mustang to collide with a van behind it.
      As Appellant pushed the Mustang and the van backward on Sayles, the van
became dislodged from the Mustang. Appellant continued to push Austin,
Stephanie, and the Mustang until Austin turned the steering wheel and the Mustang
turned, went up onto the median, and came to a stop facing west. Appellant also
backed his pickup onto the median and came to a stop facing southwest. Appellant
had pushed Austin, Stephanie, and the Mustang approximately 172 feet from the
intersection where he had initially “rammed” into the Mustang.
      When Appellant’s pickup came to rest, he immediately got out with his
Glock .40 caliber semiautomatic handgun drawn. Appellant walked toward the
Mustang and shot Austin in the head. Austin died as a result of the gunshot
wound.
      There were numerous witnesses to the events that occurred after the point in
time when Appellant backed into the Mustang and pushed it down Sayles, but their
testimony differed as to the exact details of what they recalled. Except as the
evidence relates specifically to Appellant’s issues on appeal, and in the absence of
a sufficiency of the evidence challenge, we do not find it necessary to detail the
testimony of each individual witness but, rather, will generally summarize the
evidence.
                                           4
      Several witnesses testified that, after the vehicles came to a stop in the
median, Appellant got out of his pickup first. Others testified that Appellant and
Austin got out of their vehicles at approximately the same time.         All of the
witnesses, except one, testified that, when Appellant shot Austin, Austin had not
fully exited the Mustang but still had one leg inside it. One witness testified that
Austin was the first to exit a vehicle.
      There were witnesses who testified that Austin had his handgun drawn as he
was getting out of the Mustang; others said that Austin did not have time to raise
the handgun before Appellant shot and killed him. One witness testified that,
before Appellant shot Austin, he told Austin to “put the gun down.” No other
witnesses testified that they heard Appellant say anything until after Appellant shot
Austin.
      There was a dispute as to the number of gunshots that were fired. Some
witnesses said that they definitely heard two shots; some thought that the sound of
the second shot was an echo; and others said that they heard only one shot. No one
testified that Austin fired his handgun, and although inconclusive, forensic tests
indicated that Austin had not fired his handgun.
      Stephanie testified that, after Appellant shot Austin, Appellant walked up to
Austin’s body, smiled, and said, “[N]ext time learn not to pull a gun on someone.”
Other witnesses testified that Appellant was calm and that his demeanor surprised
them. Still other witnesses testified that Appellant appeared to be “in a fog” or “in
shock.” Additionally, there were witnesses who testified that Appellant put his
handgun back in his pickup; lit a cigarette; walked across the street; and said, “You
saw him pull that gun, you saw him.” “[H]e pulled the gun out first.”
      Appellant requested that the trial court instruct the jury on the law of self-
defense and on the presumption of reasonableness as provided by Sections 9.31
and 9.32 of the Texas Penal Code. Although the trial court did give a self-defense
                                          5
instruction to the jury, Appellant takes the position that the instruction that the trial
court gave was erroneous because it focused only upon Austin’s viewpoint of the
encounter. The trial court did not give a presumption of reasonableness instruction
to the jury.
       The State urges us to first determine whether there was one continuous
confrontation or whether there were two separate confrontations or encounters on
that fateful day at Sayles and 14th.       It is the State’s position that the initial
encounter was over at the point in time when both Appellant and Austin got back
into their respective vehicles. The second encounter began when Appellant backed
his pickup into the Mustang and pushed it backward some 172 feet on Sayles. The
State contends that, because there were two distinct and separate events, the
question should focus on the second encounter and that the inquiry becomes
whether Appellant was justified in using deadly force against Austin at the point in
time that he “[rammed] his [pickup] into [Austin’s] car.” At that point in time
during the second encounter, Austin had not used any force, deadly or otherwise,
against Appellant. Therefore, the argument goes, the only proper inquiry was
whether Austin was justified when he got his pistol and started to get out of the
Mustang. And, the State posits, that is the focus of the jury instruction that the trial
court actually gave to the jury.
       The State’s position is, in essence, an argument that, because Austin had not
used any force, deadly or otherwise, against Appellant when Appellant attacked
Austin with his pickup and commenced the second encounter, Appellant was not
entitled to a charge on self-defense in the first place. The State also argues that, if
the events constituted but one encounter and Appellant was entitled to a self-
defense instruction, then the instruction was simply incomplete but was neither
erroneous nor harmful. Thus, we must determine whether Appellant was entitled
to a charge on self-defense. And if we determine that Appellant was entitled to a
                                           6
charge on self-defense, then we determine whether the charge given by the trial
court was erroneous and, if so, whether the error was harmful and necessitates
reversal.
      When we review a claim of jury charge error, we engage in a two-step
process. First, we determine whether error exists, and then we “determine whether
sufficient harm resulted from the error to require reversal.” Abdnor v. State, 871
S.W.2d 726, 731–32 (Tex. Crim. App. 1994); Almanza v. State, 686 S.W.2d 157,
171 (Tex. Crim. App. 1985).
      Our law provides that the trial court shall “deliver to the jury . . . a written
charge distinctly setting forth the law applicable to the case [and] not expressing
any opinion as to the weight of the evidence.” TEX. CODE CRIM. PROC. ANN.
art. 36.14 (West 2007). Our law further provides that a trial court is required to
instruct the jury on statutory defenses, affirmative defenses, and justifications
when they are raised by the evidence. Walters v. State, 247 S.W.3d 204, 208–09
(Tex. Crim. App. 2007).
      Self-defense is a justification for conduct that would otherwise be criminal.
See PENAL §§ 9.02, 9.31, 9.32. “A defendant is entitled to an instruction on self-
defense if the issue is raised by the evidence, whether that evidence is strong or
weak, unimpeached or contradicted, and regardless of what the trial court may
think about the credibility of the defense.” Ferrel v. State, 55 S.W.3d 586, 591
(Tex. Crim. App. 2001). The record must contain some evidence, when viewed in
the light most favorable to the defendant, that will support the claim. Id. “[A]
defense is supported (or raised) by the evidence if there is some evidence, from any
source, on each element of the defense that, if believed by the jury, would support
a rational inference that that element is true.” Shaw v. State, 243 S.W.3d 647, 657–
58 (Tex. Crim. App. 2007). A defensive issue is “raised by the evidence” if there
is sufficient evidence to permit a reasonable jury to find in the defendant’s favor on
                                          7
the issue. Ferrel, 55 S.W.3d at 592 (citing Mathews v. United States, 485 U.S. 58,
63 (1988)). A defendant need not testify for a defensive issue to be sufficiently
raised. Smith v. State, 676 S.W.2d 584, 585–87 (Tex. Crim. App. 1984); Johnson v.
State, 271 S.W.3d 359, 362 (Tex. App.—Beaumont 2008, pet. ref’d).                The
testimony of any witness, even one called by the State, may raise a defensive issue.
Johnson, 271 S.W.3d at 362. But “if the evidence, viewed in the light most
favorable to the defendant, does not establish self-defense, the defendant is not
entitled to an instruction on the issue.” Ferrel, 55 S.W.3d at 591.
      Under Section 9.32 of the Texas Penal Code, as applied to cases like this
one, a defendant is justified in using deadly force (1) if he would be justified in
using force under Section 9.31 and (2) when and to the degree that the defendant
reasonably believed that the deadly force was immediately necessary to protect
himself from the other’s use or attempted use of unlawful deadly force or to
prevent the other’s imminent commission of, among other things, murder. See
PENAL § 9.32(a).     Under Section 9.31 of the Texas Penal Code, with some
exceptions not applicable here, “a person is justified in using force against another
when and to the degree the actor reasonably believes the force is immediately
necessary to protect the actor against the other’s use or attempted use of unlawful
force.” See PENAL § 9.31(a).
      We do agree with the State that there were two separate and distinct
encounters in this deadly road-rage event. The first ended when Appellant and
Austin got back in their respective vehicles at the intersection of Sayles and 14th.
The second began when Appellant rammed into the Mustang and pushed it
backward on Sayles. However, we cannot agree with the State that Appellant’s
action when he backed into the Mustang is the deadly conduct with which we are
concerned in the self-defense aspect of this case. The focus of our inquiry is upon
the point in time when Appellant got out of his pickup, went toward the Mustang,
                                          8
and shot and killed Austin. Is there evidence to raise the issue that Appellant, at
that point in time, reasonably believed that force was immediately necessary to
protect him against Austin’s use or attempted use of unlawful force? Further,
because this case involves deadly conduct, is there further evidence to raise the
issue that Appellant, at that point in time, reasonably believed that deadly force
was immediately necessary to protect him against Austin’s use or attempted use of
unlawful deadly force or to prevent Austin from committing murder?             We
conclude that there was no reasonable belief by Appellant that force, much less
deadly force, was immediately necessary to protect himself from Austin.
      A “reasonable belief” is a belief that is held by an ordinary and prudent
person in the same or in similar circumstances as the actor. See TEX. PENAL CODE
ANN. § 1.07(42) (West Supp. 2013). “It is well settled that self-defense is viewed
from a reasonable-person standard. The test assumes that a defendant may act on
appearances as viewed from his standpoint, but ‘the test also assumes the “ordinary
prudent man test of tort law.”’” Moreno v. State, No. 11-11-00098-CR, 2012 WL
6582556, at *7 (Tex. App.—Eastland Dec. 13, 2012, no pet.) (mem. op., not
designated for publication) (quoting Werner v. State, 711 S.W.2d 639, 645 (Tex.
Crim. App. 1986)); see also Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App.
1984) (citing Jones v. State, 544 S.W.2d 139 (Tex. Crim. App. 1976)).
      While at the stoplight, Appellant returned to his pickup, but did not
immediately get his gun and go back to the Mustang; there was no need because
Austin had lowered the handgun and had returned to the Mustang. No one testified
that Austin kept the handgun pointed at Appellant’s pickup after Appellant got
back inside his pickup. Stephanie testified that, once Austin was back in the
Mustang, he returned the handgun to its original location. Thus, when Appellant
was seated in his pickup, there was no threat of any force, much less deadly force,
from Austin. Appellant could have had no reasonable belief that deadly force was
                                         9
immediately necessary at that point in time. Viewing the evidence in a light most
favorable to Appellant, he failed to produce some evidence that he had a
reasonable belief that deadly force was immediately necessary to respond to Austin
at the intersection. Appellant was not entitled to an instruction on self-defense in
connection with the first encounter at the intersection of Sayles and 14th because
there was no threat of deadly force and because there was no evidence as to
Appellant’s belief that his use of deadly force was immediately necessary to
respond to Austin’s asserted use of deadly force.
      The same is true of the second encounter. The record contains no evidence
of what Appellant did or did not reasonably believe at the time that he shot and
killed Austin. As the State comments in its brief, we cannot know from the
evidence “what was in Appellant’s thoughts.”
      Appellant cites Bennett v. State, 726 S.W.2d 32 (Tex. Crim. App. 1986), and
Kolliner v. State, 516 S.W.2d 671 (Tex. Crim. App. 1974), as support for his
position that he was entitled to a correct charge on self-defense. In each of those
cases, however, the defendant testified as to what he reasonably believed. We are
well aware that the evidence needed to raise defensive issues or justification issues
does not have to come from a defendant personally. But it has to come from
somewhere; we are of the opinion that there is no evidence in this record to support
a self-defense instruction. For that same reason, we cannot hold that the trial court
commented on the evidence when it gave the self-defense instruction that it did.
Appellant’s first issue on appeal is overruled.
      In his second issue on appeal, Appellant argues that he was entitled to a
presumption of reasonableness instruction and that the trial court erred when it
refused to give one. Section 9.32(b) of the Penal Code provides that a defendant’s
belief that force is immediately necessary to protect him from the other’s use or
attempted use of unlawful force is presumed to be reasonable under certain
                                          10
conditions. As we have held, there is no evidence in this record as to what
Appellant did and did not believe. Therefore, he is not entitled to an instruction
that his belief was reasonable. The trial court did not abuse its discretion when it
refused to give an instruction on the presumption. Appellant’s second issue on
appeal is overruled.
      We affirm the judgment of the trial court.




                                                   MIKE WILLSON
                                                   JUSTICE


January 24, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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