Affirmed and Memorandum Opinion filed July 31, 2018.




                                         In The

                       Fourteenth Court of Appeals

                                 NO. 14-17-00080-CR

                        ELIAS RAMON MORIN, Appellant
                                           V.
                         THE STATE OF TEXAS, Appellee

                      On Appeal from the 149th District Court
                             Brazoria County, Texas
                         Trial Court Cause No. 80363-CR

                    MEMORANDUM OPINION

      A jury found appellant Elias Ramon Morin guilty of murder and assessed
punishment at sixty-five years’ confinement. In a single issue, appellant contends that
the trial court erred by denying his request for the jury charge to include an instruction
on self-defense. We affirm.

I.    Legal Principles for Self-Defense Instruction

      A defendant is entitled to a jury instruction on self-defense if the issue of self-
defense 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. Gamino v. State, 537 S.W.3d 507, 510 (Tex. Crim. App.
2017) (quotation and alteration omitted). A trial court errs by denying a self-defense
instruction if there is some evidence, from any source, when viewed in the light most
favorable to the defendant, that will support the elements of self-defense. Id.

      A person is justified in using deadly force against another when and to the extent
that he reasonably believes that deadly force is immediately necessary to protect
himself from the other’s use or attempted use of unlawful deadly force. Gonzales v.
State, 474 S.W.3d 345, 349 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d); see
also Tex. Penal Code §§ 9.31, 9.32; Gamino, 537 S.W.3d at 510. “A person has the
right to defend himself from apparent danger to the same extent he would if the danger
were real.” Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App.1996). Thus, a
defendant is entitled to a self-defense instruction if the defendant “reasonably perceives
that he is in danger, even though that perception may be incorrect.” Id. But, the mere
fact that the defendant believed the decedent might attack, without evidence that would
lead the defendant to reasonably believe he was in danger, is insufficient to entitle the
defendant to an instruction on self-defense. Preston v. State, 756 S.W.2d 22, 25 (Tex.
App.—Houston [14th Dist.] 1988, pet. ref’d). A reasonable belief is one that would be
held by an ordinary and prudent person in the same circumstances as the defendant.
See Tex. Penal Code § 1.07(42).

II.   Purported Evidence of Self-Defense

      As support for his argument that there is some evidence to raise the issue of self-
defense, appellant relies solely on the testimony of one of several eyewitnesses to the
offense. The eyewitness testified that he went to appellant’s house to encourage
appellant to spend more time with appellant’s daughter. During the conversation,



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appellant was fidgeting with a pocketknife that had a four- or five-inch blade. The knife
concerned the eyewitness and “weirded [him] out.”

      The eyewitness also knew one of the other occupants at the house—the
decedent’s girlfriend. The girlfriend testified that she and the decedent had been staying
at the house for about a week and were planning to leave on the day of the murder. The
eyewitness testified that appellant invited the eyewitness inside to say hello to the
girlfriend. The eyewitness wanted to check on the girlfriend because he heard that she
had recently “died” from a heroin overdose—that she wasn’t breathing and was “gone
for a moment or two.” The eyewitness testified that he was aware of appellant being
mad at the decedent because the decedent had been the person who injected the
girlfriend with the heroin.

      Appellant and the eyewitness went to a room where the decedent and the
girlfriend had been taking a nap. The eyewitness testified that appellant sat in a chair
in the room. The eyewitness shook the decedent’s hand, said hello, and began talking
with the girlfriend. As the eyewitness was talking with the girlfriend, the decedent
“pulled out a big—a big knife from beside the bed.” The decedent asked the eyewitness
what the eyewitness thought about the knife. The eyewitness responded, “Man, that’s
a big knife. What are you going to—what are you going to do with that? Fillet AJ’s or
amberjack?” The decedent just “wield[ed] it around a little bit.” The eyewitness
testified, “He wasn’t threatening me with it. He was showing it to me, and I was kind
of shocked by it because it was—it was such a large knife.” The eyewitness reiterated
that he “didn’t take it as a threat.” The eyewitness testified that the decedent sat down
on the bed and put the knife away between the wall and the mattress. The decedent
“didn’t have it in his hand anymore.”

      While the eyewitness and the girlfriend were talking, appellant walked up to the
sitting decedent and stabbed the decedent in the chest, though at the time the eyewitness

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thought that appellant had only punched the decedent. The eyewitness did not see
anything in appellant’s hand but did see blood on appellant’s hand. After the attack,
appellant put his hands together like he was closing a pocketknife or folding a blade.
The eyewitness heard someone scream or “squeal” to call 911 for an ambulance. The
eyewitness immediately left the scene.

III.   Analysis

       On appeal, appellant contends that the eyewitness’s testimony raises the issue of
self-defense because the decedent had been “wielding around a very large knife.” The
State contends that this evidence is not evidence showing that the decedent caused
appellant to reasonably believe that deadly force was immediately necessary to protect
himself. We agree with the State.

       The facts presented above are not comparable to the evidence of apparent danger
in Hamel. See 916 S.W.2d at 492–94 (holding that the defendant was entitled to a self-
defense instruction when the defendant stabbed the complainant after the complainant
had said he was going to his car to get a gun to shoot the defendant’s father; the
complainant started walking toward the car; and the defendant testified that he believed
his actions were necessary to defend his life). There is no evidence that the decedent
made any threats against appellant, either by words or by gesture. Nor did appellant
testify or otherwise present any evidence of a subjective intent to use self-defense at
the time of the murder. Cf. Gonzales, 474 S.W.3d at 349 (error to omit self-defense
instruction when police officers testified that the defendant ran out of the decedent’s
room screaming, “He has a gun! It was self-defense!”).

       Under the circumstances described by the eyewitness—that the decedent had
shown the knife in a non-threatening manner and then put it away—no ordinary and
prudent person in appellant’s position could have believed that deadly force was
immediately necessary to protect himself from the decedent’s use or attempted use of
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unlawful deadly force. See Barree v. State, 621 S.W.2d 776, 778–79 (Tex. Crim. App.
[Panel Op.] 1980) (op. on reh’g en banc) (no error to omit self-defense instruction
because there was no evidence that the defendant’s use of force was immediately
necessary to protect himself from the complainant; the complainant testified that the
complainant had “pulled out his pocket knife” and told the defendant to back up, so
there was “undisputed evidence that the complainant had a pocket knife, but the record
is void of evidence that the complainant ever attempted to use the knife or even
threatened to use the knife”); see also Graves v. State, 452 S.W.3d 907, 910–11 (Tex.
App.—Texarkana 2014, pet. ref’d) (no error to omit self-defense instruction when the
decedent attempted to forcibly and violently enter the defendant’s home, and when the
defendant pushed the decedent back outside, the decedent said he was going to “come
back and shoot the whole house up”; the defendant shot the decedent as the decedent
was backing away).

      The trial court did not err by denying the requested instruction on self-defense.
Appellant’s sole issue is overruled.

IV.   Conclusion

      Having overruled appellant’s sole issue on appeal, we affirm the trial court’s
judgment.




                                       /s/       Ken Wise
                                                 Justice


Panel consists of Justices Boyce, Donovan, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).



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