Opinion filed December 31, 2018




                                       In The


        Eleventh Court of Appeals
                                    __________

                              No. 11-17-00020-CR
                                  __________

                  DONALD BLAINE DAVIS, Appellant
                               V.
                   THE STATE OF TEXAS, Appellee

                     On Appeal from the 91st District Court
                           Eastland County, Texas
                         Trial Court Cause No. 24475


                     MEMORANDUM OPINION
       After the jury found Donald Blaine Davis guilty of the offense of murder and
after it found an enhancement paragraph to be true, it assessed his punishment at
confinement for 99 years; it also assessed a fine of $7,500. We affirm.
      Appellant does not dispute that the evidence sufficiently proves that he shot
and killed Bobby Glenn Blair, his one-time friend. However, Appellant does
challenge the trial court’s refusal to charge the jury as requested by Appellant. In
four issues on appeal, Appellant complains that (1) the trial court erred when it
refused to charge the jury on the issue of the lesser included offense of manslaughter,
(2) the trial court committed error when it refused to charge the jury on the issue of
self-defense, (3) the trial court erred when it declined to charge the jury on the issue
of apparent danger, and (4) the trial court should have given the jury a charge on the
issue of justification.
       Sometime before the night that Appellant shot and killed Blair, they were
friends and neighbors. During that time, Blair lived with Bobbie Jo Johnson’s
mother. Johnson was Blair’s former girlfriend. When Blair was living with
Johnson’s mother, Appellant and Blair spent time together, drank together, and
smoked methamphetamine together. At some point, Johnson ceased to be Blair’s
girlfriend, and Blair moved out.
       Appellant and Blair’s friendship waned after Appellant, among other things,
accused Blair of stealing some tires from him. Additionally, Appellant had used
social security disability benefits to hire Johnson as his home healthcare provider.
As a further catalyst to the breakup of the friendship with Blair, Appellant fired
Johnson.
       There is considerable evidence in the record that Blair and Appellant each
verbally threatened the other in various ways. These threats ran the gamut from
threats made by Blair to Appellant, with accompanying hand gestures, that “I’m
going to get you,” to statements by Appellant to third parties that “I can’t whip him,
so I’m going to kill him”; “[I will] shoot his f-----g a-s”; and “[I will] blow [Blair’s]
a-s away.”
       Johnson and her mother lived across the alley from Appellant’s residence. On
the day of the killing, Blair texted Johnson to ask her if he could come to her house
to get some of his clothing. He texted her again on the night of the killing, but
Johnson was talking on her phone to a friend and did not take Blair’s call. Soon
thereafter, she received a text from Blair in which Blair told Johnson that he was
“here.” Then, she heard a gunshot; she went to see what had happened. She saw
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that Blair’s pickup was idling in the driveway, that the driver’s door was open, and
that Blair’s body was lying next to the pickup. She asked Appellant, “Did you do
this?” Appellant answered, “I told you if he came back over I was going to shoot
his f-----g a-s.”
       Appellant’s neighbor, Eric Edward Perkins, also heard the gunshot. Just
before he heard it, he heard someone say: “What are you going to do, shoot me, m-
----f----r?” Later, he saw Blair’s body lying in a utility easement area. The easement
area was located beside Appellant’s residence.
       Diane Mary Rodriguez, Appellant’s girlfriend, lived with Appellant. On the
evening of the killing, she was in the kitchen cooking supper when Appellant came
into the house then went back out again. He apparently came in to get the shotgun
that he used to shoot Blair. He later identified the shotgun as the one he used to kill
Blair. After Appellant had gotten the shotgun and had gone back outside, Rodriguez
heard Appellant say: “Bob, you’re not supposed to be here.” Then, she heard a loud
“boom.”
       On the night of the killing, Charles Wayne Parker, an officer with the Ranger
Police Department, went to the scene. While there, he talked with Appellant.
Appellant told Officer Parker that Blair had been threatening him, that they had had
previous troubles, that Blair had charged at him, that he had tried to get Blair to stop,
and that he had shot Blair.
       Lancer Shane Morrow, a Texas Ranger, also investigated the circumstances
surrounding the shooting. Ranger Morrow talked to Appellant and examined the
scene. He testified that the facts he discovered were not consistent with Appellant’s
claim that Blair charged Appellant. Appellant did not testify.
       After Appellant shot Blair, Appellant came back into his residence and told
Rodriguez to press his “Lifeline” button. He then removed his belt and handed it
and his wallet to Rodriguez and told her: “I may have to go to jail for a little while.”
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      At trial, Appellant asked the trial court to include a charge on the lesser
included offense of manslaughter; the trial court denied the request. We employ a
two-part test when we determine whether the trial court should have charged the jury
on a lesser included offense. Mathis v. State, 67 S.W.3d 918, 925 (Tex. Crim. App.
2002). We must first determine whether the requested charge concerns an offense
that is a lesser included offense of the charged offense. Rice v. State, 333 S.W.3d
140, 144 (Tex. Crim. App. 2011). Manslaughter is a lesser included offense of the
offense of murder. Mathis, 67 S.W.3d at 925. Therefore, it remains only for us to
determine whether there is some evidence that would permit a jury to rationally find
that the accused is guilty only of the lesser included offense. Id.
      Appellant argues that the trial court should have given the instruction because
there was at least a scintilla of evidence that rationally supported an inference that
Appellant acted recklessly in the moments before he killed Blair. We do not agree.
      The Texas Penal Code provides, in part, that 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 commits the offense of
manslaughter if he “recklessly causes the death of an individual.” Id. § 19.04(a). “A
person acts recklessly, or is reckless, with respect to circumstances surrounding his
conduct or the result of his conduct when he is aware of but consciously disregards
a substantial and unjustifiable risk that the circumstances exist or the result will
occur.” Id. § 6.03(c).
      A determination of whether a person acts recklessly is directed “at the moment
he fired the shots,” not at some other time. Cavazos v. State, 382 S.W.3d 377, 385
(Tex. Crim. App. 2012) (emphasis added). Appellant wants us to focus our attention
on Appellant’s actions in recklessly going to get the shotgun. Even if we were to
agree that it was reckless to go get the shotgun as he did, that is no evidence that


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Appellant was engaged in any reckless behavior at the time that he pulled the trigger
and shot and killed Blair.
      The evidence here does not support a finding of recklessness, and it does not
rise to a level that would permit a rational jury to find that, if Appellant is guilty, he
is guilty of only the lesser included offense. In the absence of some evidence that
Appellant was acting recklessly when he pulled the trigger, the trial court was not
required to submit the lesser included offense of manslaughter, and it did not err in
failing to do so. We overrule Appellant’s first issue on appeal.
      In his second, third, and fourth issues on appeal, Appellant maintains,
respectively, that the trial court erred when it refused to charge the jury on the law
of self-defense, on the law of apparent danger, and on the law of justification. We
first determine whether it was error for the trial court to refuse those charges. Only
if we find error do we then proceed to determine whether harm resulted from the
error such as would require us to reverse. Kirsch v. State, 357 S.W.3d 645, 649 (Tex.
Crim. App. 2012).
      The trial court must give a requested instruction on every defensive issue
raised by the evidence. Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. Crim. App.
2013). That is true regardless of the source of the evidence, the strength of the
evidence, or the credibility of the evidence. Id. A defense is raised by the evidence
when there is some evidence on every element of the defense that, if it is 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).
      We will first examine Appellant’s requested issue on self-defense. Except in
some circumstances not relevant here, a person is justified in using force against
another when and to the degree that the actor reasonably believes that the force is
immediately necessary to protect the actor against the other’s use or attempted use
of unlawful force. PENAL § 9.31.
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      A person is entitled to use deadly force “when and to the degree the actor
reasonably believes the deadly force is immediately necessary . . . to protect the actor
against the other’s use or attempted use of unlawful deadly force.”                    Id.
§ 9.32(a)(2)(A). To be entitled to a self-defense instruction involving deadly force,
there must be some evidence that Appellant reasonably believed that deadly force
was immediately necessary to protect himself or others from Blair’s use or attempted
use of deadly force. See id. A “reasonable belief” is “a belief that would be held by
an ordinary and prudent [person] in the same circumstances as the actor.” Id.
§ 1.07(a)(42) (West Supp. 2018). “Deadly force” is “force that is intended or known
by the actor to cause, or in the manner of its use or intended use is capable of causing,
death or serious bodily injury.” Id. § 9.01(3).
      The evidence here shows that Blair had made verbal threats against Appellant.
Verbal provocation alone does not justify the use of deadly force against another.
Id. § 9.31(b)(1). There is no evidence that Blair was using or attempting to use any
kind of force, deadly or otherwise, when Appellant shot and killed him. There is
nothing in the record to support the contention that Appellant reasonably believed
the immediate use of deadly force was necessary to protect himself against Blair.
      Because there is nothing in the record to support a finding that Appellant
reasonably believed that the immediate use of deadly force was necessary, he was
not entitled to a self-defense instruction. The trial court properly denied Appellant’s
request for an instruction on self-defense. We overrule Appellant’s second issue on
appeal.
      Because Appellant was not entitled to an instruction on self-defense, neither
was he entitled to an instruction on apparent danger as set out in the properly refused
self-defense instruction. We overrule Appellant’s third issue on appeal.
      In his fourth issue on appeal, Appellant urges us to find error in the trial court’s
refusal to charge the jury on the issue of justification as it relates to Rodriguez.
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Appellant would have been justified in using force or deadly force against Blair to
protect Rodriguez if, under the circumstances as Appellant reasonably believed them
to be, he would have been justified under the Penal Code in using force or deadly
force to protect himself against the unlawful force or unlawful deadly force that he
reasonably believed to be threatening Rodriguez. Further, Appellant must have
reasonably believed that his intervention was immediately necessary to protect
Rodriguez. See id. § 9.33.
        There is no evidence that Appellant could have reasonably thought that
Rodriguez was in any danger; she was inside the residence cooking dinner when the
shooting took place in an easement area beside Appellant’s residence. There is no
evidence to support the submission of the justification issue to the jury. Therefore,
the trial court did not err when it refused to submit the issue. We overrule
Appellant’s fourth issue on appeal.
        We have overruled all of Appellant’s issues on appeal, and we affirm the
judgment of the trial court.


December 31, 2018                                                     JIM R. WRIGHT
Do not publish. See TEX. R. APP. P. 47.2(b).                          SENIOR CHIEF JUSTICE
Panel consists of: Gray, C.J., 10th Court of Appeals 1;
Simmons, F.J. 2; and Wright, S.C.J. 3
(Chief Justice Gray dissents. A separate opinion will not issue. He provides the
following note)**

Bailey, C.J., and Willson, J., not participating.

        1
         Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment
to the 11th Court of Appeals.
        2
         Rebecca Simmons, Former Justice, Court of Appeals, 4th District of Texas at San Antonio, sitting
by assignment.
        3
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
                                                      7
        ** There had been a number of times that Davis and Blair had some type of
confrontation. Their friendship went south because Davis thought Blair had stolen
from him. I think it is a fair characterization that the nature of the relationship
spiraled downward until Davis was concerned enough to seek a criminal trespass
warning against Blair. It appears that it had been issued but had not been served on
Blair because he had not been located by the persons attempting to serve him. This
puts Davis’s statement, “Bob, you are not supposed to be here” in its proper context.
Also, there was evidence that Blair was larger than Davis and that Davis had
expressed his fear of being beaten by Blair when he is reported to have stated
something to the effect: “I can’t whip him, so I’m going to kill him.” There was also
the evidence that Blair had charged towards Davis after Davis had obtained the
shotgun. And, while it does not appear that Blair was yet on Davis’s property, he
was closer to Davis’s property than he was to his own pickup. There really is no
explanation for why Blair would have left his pickup and headed towards Davis and
it is clear that Blair was aware that Davis was already in possession of the shotgun
when he made the statement: “What are you going to do, shoot me,” or words to that
effect. With that as the factual basis, I next turn to the legal basis for a self-defense
instruction. It does not take much evidence to entitle a defendant to the self-defense
instruction; “some evidence” is all it takes. It does not even have to be credible
evidence. Clearly, the officer that testified that Davis said Blair had charged him,
did not believe Davis. The officer gave his opinion to the jury and explained why
he thought the physical evidence was to the contrary of Davis’s claim. But the
officer does not get to make the ultimate call. The jury does. But the jury must be
guided about the law and how to use the evidence by a proper instruction. Based
upon this evidence in addition to that recited in the opinion, I believe there is some
evidence, including reasonable inferences, that would have allowed a reasonable
juror to conclude that Davis was in fear of being beaten, if not killed, by Blair if
Blair ever got his hands on Davis. Davis had the ability and the means to prevent
what he feared could be a life-altering, if not life-ending, beating by a larger
aggressor, and Davis defended himself. I am not saying that is what I think
happened. What I think happened is not the issue. What a jury could conclude if
properly instructed on the law of self-defense, including that in a proper application
that there is no duty to retreat, is the issue. There is plenty here for a good lawyer to
make an argument for self-defense, but only if there is an instruction on self-defense
in the charge. I would hold that the trial court erred in failing to give a self-defense
instruction. Davis objected to the trial court’s failure. Thus, if we find some harm,
the judgment must be reversed and remanded for a new trial. Davis was deprived of
his strongest defense: it was him or me that was likely to survive and I chose me.
The jury was certainly in a position to reject the defense and had evidence upon
which to reject it. But the jury never had the option of considering it as a defense.
                                           8
Having been deprived of his strongest defense, I cannot conclude that Davis did not
suffer some harm from the error. Accordingly, I would not reach any of the other
issues, and would reverse and remand the proceeding for a new trial. Because the
Court affirms the trial court judgment, I respectfully dissent.




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