

 






IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1632-11


PAUL KRAJCOVIC, Appellant

v.


THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS

DENTON COUNTY



 Meyers, J., delivered the opinion of the Court in which Keller, P.J.,
and Price, Womack, Keasler, Hervey, Cochran, and Alcala, JJ., joined. 
Price, J., filed a concurring opinion.  Johnson, J., concurred.

O P I N I O N


	Appellant, Paul Krajcovic, was charged with a murder committed on or about
August 28, 2007.  A jury found him guilty and sentenced him to fifty-five years'
confinement.  He appealed, arguing that the trial court erred in refusing to grant his
request for a jury instruction on the Castle Doctrine, which went into effect on September
1, 2007.  The court of appeals reversed the trial court's judgment and remanded the case
for a new trial.  Krajcovic v. State, 351 S.W.3d 523 (Tex. App.-Fort Worth 2011).  We
granted the State's petition for discretionary review to address the following two grounds
for review: 
	(1) Whether the Court of Appeals' panel majority improperly applied the
law on defensive instructions where there was no evidence that supported a
rational inference that the requested defensive instruction on the "Castle
Doctrine" applied to the case.

	(2) Whether the Court of Appeals' panel majority erred by holding the lack
of the requested instruction was harmful where there was no evidence
whatsoever of "retreat," or even the possibility thereof, and where a self-defense claim would have failed regardless of whether Appellant was
legally required to retreat or not. 

	We hold that the court of appeals erred in failing to consider whether the evidence
supports a rational inference that the Castle Doctrine applies to this case.  We will
reverse. 
FACTS
	On September 6, 2007, Appellant's father and sister went to the police to report
that Appellant had told them that he had shot someone in his home.  Officers went to
Appellant's house to investigate and smelled a strong "odor of death" from outside the
house.  When they went inside, they discovered the body of Jerrod Deshun "Shawn"
Scales on the floor of the master bathroom.  Shawn and Appellant were known drug users
and dealers who often worked together. (1)  Because Shawn was found in front of the toilet
with his pants on, his penis out of the fly of his boxers, and the toilet seat raised, officers
investigating the scene concluded that the murder occurred as Shawn was using the
bathroom.  According to the officers, there was no evidence of a break-in or a scuffle and
no evidence that the body had been moved and placed in the bathroom.  The medical
examiner testified that the cause of death was a gunshot wound to the head from a small-caliber weapon.  The body was "markedly decomposed," and there were maggots
covering his face and flies present at the scene.  The medical examiner could not
determine the exact time of death but testified that it was at least 36 hours before the time
that the body was discovered and that the body was well past rigor mortis.  
	The day after the body was found, Appellant provided a written statement stating
that he accidently shot Shawn during a struggle.  Appellant claimed that Shawn was
threatening to kill him and his son because Appellant owed Shawn $200 and that he
fought Shawn in order to save his and his child's lives.  Appellant stated that the gun
went off during the scuffle, and Shawn fell onto the bed.  Appellant said he then got his
son and left the house. 
	Appellant's 10 year-old son, DK, testified that, on the last night he stayed with his
father, they were in the bedroom when they heard glass break.  DK hid under the covers,
and Appellant left the room to go see what caused the noise.  DK said he heard a gunshot,
then his father came back and got him, and they left the house.  DK said that he did not
remember the date of the incident, only that it was prior to his starting school that year. (2) 
	Shawn's friend Darin Robinson testified at trial that the last time he saw Shawn 
was the last week of August.  He said he remembered when it was because it was two
days after he found out that his mother had cancer and a week before his birthday, which
was on September 3rd.  Darin testified that he went to Appellant's house at around 1 a.m.
to get a cigarette and stayed for about an hour smoking crack with Appellant and Shawn. 
He said that they asked him to leave at a little after 2 a.m. because they had some girls
coming over.  He said that it was on a Tuesday, and he guessed that it was the 25th or
26th of August.
	Another friend, Wayne Shoffner, testified that the last time he had seen Shawn 
was on a Monday, but that the Monday could have been in August, September, or
October. (3)  He further testified that it had been the same day that Darin had gone to
Appellant's house to get a cigarette. (4) 
	A narcotics officer who was watching Appellant's house stated that the last time
he had seen Shawn was at around 5:30 p.m. on August 28th when Appellant and Shawn
entered Appellant's house.  The officer testified that he had not conducted further
surveillance on the residence after that time and did not go back to the house until the day
Shawn's body was found.  
	Shawn's mother testified that Shawn usually called her if he was not going to be
home by 10 p.m., but he failed to do so after August 27th.  She stated that Shawn's
brother was looking for him on August 28th but he was not home and was not at work. 
As a result, she attempted to file a missing persons report on August 28th but was
instructed by the police to wait three days before filing.
	Objecting to the court's proposed jury charge, Appellant stated, "We believe the
charge should also contain the Castle Law Doctrine where Mr. Krajcovic had no duty to
retreat in his own home in protecting his own home or his son or himself."  The trial court
denied the request and instructed the jury that a person is justified in using deadly force
against another "if a reasonable person in defendant's situation would not have retreated."PROCEDURAL HISTORY
 A jury convicted Appellant of murder and assessed his punishment at fifty-five
years' confinement.  On appeal, Appellant argued that the trial court erred in submitting
to the jury a "charge that improperly limited it to finding that an offense occurred prior to
September 1, 2007."  Before September 1, 2007, deadly force under Texas Penal Code
Section 9.32(a) was justified only "if a reasonable person in the actor's situation would
not have retreated."  The Castle Doctrine was made effective on September 1, 2007.  It
relieves a person of the duty to retreat when he is justified in using deadly force against
another if (1) he has a right to be present at the location where the deadly force is used,
(2) he has not provoked the person against whom the deadly force is used, and (3) he is
not engaged in criminal activity at the time that the deadly force is used.  See TEX.
PENAL CODE §9.32(c).  Appellant argued that the trial court presumed that the date of
death was in August and erred in instructing the jury on the law only as it stood prior to
September 1, 2007.  The court of appeals initially affirmed the decision of the trial court
and held that there was no error in the jury instructions.  The court of appeals reasoned
that there was no affirmative evidence that the offense occurred after August 28, 2007
that would mandate a jury issue on which version of the self-defense law applied to the
case.  Krajcovic v. State, No.2-09-020-CR, 2010 Tex. App. LEXIS 6168 (Tex. App.-Fort
Worth July 29, 2010) (not designated for publication).
	Appellant filed a motion for en banc reconsideration.  The court of appeals denied
the motion, but withdrew the original opinion and judgment and substituted a new
opinion reversing the trial court's judgment and remanding the case for a new trial.  Upon
reconsideration, the court of appeals held that there was no "clear-cut" date of death and
that the trial court erred in refusing to give the instruction.  Krajcovic, 351 S.W.3d at 530. 
The court of appeals stated that if any evidence from any source raised a defense, it must
be given, regardless of the strength of the evidence, and that it is not the court's function
to determine the credibility or weight of the evidence.  Id. at 528-29.  The court concluded
that Appellant was harmed by the failure to give the Castle Doctrine instruction because
the only self-defense instruction given to the jury was about whether a reasonable person
would not retreat.  Id. at 530.  The court reasoned that, because there was no evidence of
retreat and no evidence that a reasonable person would not have retreated, the jury may
have convicted Appellant due to his failure to retreat when it is possible that he had no
duty to retreat.  Id. 
	The State filed a petition for discretionary review, which we granted to consider
whether the court of appeals improperly applied the law on defensive instructions where
there was no evidence that supported a rational inference that the requested defensive
instruction on the Castle Doctrine applied to the case, and whether the court of appeals
erred by holding that the lack of the requested instruction was harmful.ARGUMENTS OF THE PARTIES
	The State argues that there is no evidence that would support a rational inference
that the requested instruction on the Castle Doctrine applies to this case.  The State agrees
that a jury instruction should be given when the accused presents affirmative evidence
that supports a defense, but says that here there was no evidence upon which a rational
jury could have based a belief that the murder took place in September.  The State argues
that Appellant was not harmed by the trial court's failure to instruct the jury on the Castle
Doctrine because no evidence related to the concept of retreat was raised at trial.  The
State says that whether Appellant had a duty to retreat had no bearing on the verdict
because the jury clearly rejected the idea that the killing was self-defense.  According to
the State, the evidence did not support self-defense because the victim was not shot at
close range, there were no victim fingerprints on the gun, and there was no evidence of a
struggle.
	Appellant argues that a defendant is entitled to an instruction on every defensive
issue raised by the evidence, even if it is controverted or conflicts with other evidence. 
Appellant says that the jury should decide the credibility of the evidence and should
decide whether to accept or reject a properly raised defensive theory.  According to
Appellant, a determination of which self-defense law applied to this case was a fact issue
for the jury.  Appellant says that the evidence presented by witnesses was enough to
warrant an instruction on the post-September 1, 2007 self-defense law.  Because the
evidence raised a fact issue as to the date of the offense, the jury should have been given
the opportunity to determine which of the disputed facts to use in applying the law. 
Instead, the jury was forced to decide the issue of self-defense under the old doctrine that
required retreat.  Appellant says that the court of appeals properly concluded that it was
error for the trial court to refuse to instruct the jury on the post-September 1, 2007 law on
self-defense. 
ANALYSIS 
	Texas Penal Code Section 2.03(c) states, "The issue of the existence of a defense
is not submitted to the jury unless evidence is admitted supporting the defense."  We have
said that a judge must give a requested instruction on every defensive issue raised by the
evidence without regard to its source or strength, even if the evidence is contradicted or is
not credible.  Juarez v. State, 308 S.W.3d 398, 404-05 (Tex. Crim. App. 2010); Shaw v.
State, 243 S.W.3d 647, 657-58 (Tex. Crim. App. 2007).  In Shaw we explained that even
a minimum quantity of evidence is sufficient to raise a defense as long as the evidence
would support a rational jury finding as to the defense.  Id.  We stated that "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." (5) Id.  While the evidence may be weak or contradicted, there must be
at least some evidence to support the defense as a rational alternative to the defendant's
criminal liability.
	In its most recent opinion, the court of appeals held that because it was not "clear-cut" when the murder was committed, Appellant was entitled to receive the Castle
Doctrine version of the self-defense instruction.  Krajcovic, 351 S.W.3d at 530.  The
court of appeals said that Penal Code Section 2.03(c) was satisfied upon a showing of
"any evidence from any source" that the Castle Doctrine applied.  However, the court of
appeals did not consider whether there was affirmative evidence to support a jury finding
regarding the defense.  See Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App.
2012) (indicating that a lesser-included offense instruction requires affirmative evidence
that both raises the lesser-included offense and rebuts or negates an element of the greater
offense); Goad v. State, 354 S.W.3d 443, 447-48 (Tex. Crim. App. 2011) (concluding that
there was affirmative evidence directly germane to whether the defendant lacked intent);
Mays v. State, 318 S.W.3d 368, 387 (Tex. Crim. App. 2010) (failing to give lesser-included offense instruction was not error because there was no affirmative evidence to
show that the appellant was reckless or negligent).  See also Bufkin v. State, 207 S.W.3d
779, 782 (Tex. Crim. App. 2006) (noting that we treat lesser-included offense and
requested defensive instructions the same); Druery v. State, 225 S.W.3d 491, 512-13
(Tex. Crim. App. 2007) (Keller, P.J., concurring) (stating that a lesser-included offense
instruction is a kind of defensive issue).
	Here, there was no affirmative evidence that the offense was committed on or after
September 1st.  At trial, the defense did question the date of the offense.  When asking
witnesses about the offense, the defense sometimes referred to the shooting as being in
September and sometimes referred specifically to August 28th.  The defense asked one
witness, "Was that August? September? November? July?" and the witness responded,
"That was the end of August."  However, when the defense requested the Castle Doctrine
instruction, the State replied that the change in the law was September 1, 2007, and that
the jury charge already covered self-defense in great detail.  The defense did not respond
further and did not present the trial court with any evidence or argument that the Castle
Doctrine applied to this case.  
	On appeal, Appellant claims that because the medical examiner could only
determine that the victim died at least 36 hours before the body was found, the murder
could have been committed in September.  Appellant asserts that when he told the police
on September 7th that the shooting was "a week ago" he could have meant that "a week"
was five days.  However, Appellant also states in his brief that in his September 7th
statement to police, he said that the incident occurred "last Tuesday, 2:00 am Wednesday
morning" and later clarified that it occurred "last Wednesday morning, a week," which
would mean that the offense was on August 29th.  Although evidence to support a
defense may be contradicted, it must be affirmative evidence and cannot be based on
speculation or hypothetical "what if" scenarios.  Appellant also points to Wayne's
testimony that the last time he saw Shawn could have been in August, September, or
October.  Testimony that the witness may have seen the victim in October is not
affirmative evidence that the murder was committed on or after September 1st given that
the body was found in September.  And a witness's statement that he does not know or
does not remember when he last saw the victim is not affirmative evidence that the
murder was committed on or after September 1st.  
	The evidence raised at trial governs what is included in the charge, and here there
is no affirmative evidence to support a rational inference that the murder was committed
on or after September 1st.  Because there was no evidence to support the defense, the trial
court did not err in failing to give the instruction. 
CONCLUSION
	The court of appeals erred in applying the law on defensive instructions where
there was no evidence to support a rational inference that the requested instruction
applied to this case.  Because the trial court did not err in failing to instruct the jury on the
Castle Doctrine, we need not consider the State's second ground for review regarding the
court of appeals's harm analysis.  We reverse the court of appeals and affirm the
judgment of the trial court.
 


Delivered: March 6, 2013
Publish

1. Throughout the trial and appeal, the victim and witnesses have been referred to by their
first names.  We too will refer to them by their first names for the sake of consistency.
2. There was testimony that although school started in late August, Appellant failed to
enroll DK in school, and he missed the beginning of the school year. 
3. Wayne's testimony was:
Q: Now, specifically talking about the last time you saw Shawn, do you remember about what
day that was?
A: I knew it was on a Monday.  I couldn't tell you what the date was, but it was on a Monday.
Q: Was that in late August?
A: It might have been, yeah.
Q: Do you remember if --
A: It might have been in late August or early October.  I'm not for sure.  It was between one of
those two.
Q: Late August, early --
A: --October.
Q: October? What about September?
A: It could have been there.  I don't know.  It's been a while.
4. The court of appeals noted that the Monday that Wayne was referencing would have
been August 27, 2007.  Krajcovic, 351 S.W.3d at 525. 
5. We note that, although the date the murder occurred is not an element of the defense, it 
determines which version of the self-defense law applies.  Due to the unique circumstances of
this case, an element of the offense (the date the murder occurred) determines whether a specific
defense (the Castle Doctrine) applies.  While the disputed date of the offense may be a fact issue
for the jury, whether a defensive issue was raised by the evidence presented at trial is a question
of law.  Shaw, 243 S.W.3d at 658. 

