A HI R1: Opinion issued October 10, 2012.




                                               In The
                                 Qniiit uf iVrt1s
                         FiftI! itiitt f xa at laI1as
                                       No. 05-11-00871 -CR


                           (YIARLES PATRICK PAYNE, Appellant

                                                 V.

                               THE STATE OF TEXAS, Appellee


                       On Appeal from the 283rd Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F09—501 73—T


                              MEMORANDUM OPINION
                           Before Justices Morris, Francis, and Murphy
                                   Opinion By Justice Murphy

       A jury tbund Charles Patrick Payne guilty of the murder of Dallas Police Officer Nonnan

Smith and assessed punishment at life in prison. In five points of error, Payne contends the trial

court erred in: (I) allowing the State to ask three jurors improper commitment questions regarding

the range of punishment, (2) failing to instruct the jury on the law regarding execution of arrest

warrants, (3) and failing to instruct the jury that mere presence is not sufficient to find criminal

activity. We affirm.

                                        BACKGROUND

       Payne killed Smith. an eighteen-year veteran of the Dallas Police Department, when Smith

attempted to arrest Payne’s cousin, William Jobe, at Payne’s apartment. Smith had been trying to
arrest Johe for several months on an aggravated robbery warrant when, on January 6, 2009. he

received infomiation from a confidential informant that Jobe was visiting Payne at his apartment.

Although they were at the end ofa twelvehour shift, Srnith—along with seven fellow pohee officers

in the gang unit--- headed to the   apartment   to make the arrest. The officers plan was to knock on

the door, get someone to open it, and see who was there, This was a typical method used by the gang

unit to execute an arrest warrant. They did     not   attempt to get a search   warrant   for the apartment.

         The ofticers involved in the arrest were all wearing gang unit uniforms     except for   one officer

who was wearing a black raid jacket marked with “police on the front and back with large, white

letters, The officers arrived at Payne’s apartment complex around 6:00 p.m. One officer testified

that   “[ut was   a little dark hut it wasn’t dark to where— the point where we couldn’t see.” They

surrounded the apartment with their guns drawn.             Four officers approached the front of the

apartment: Smith and Officers Redden. Gomez, and Arellano. Other officers watched the windows

of the apartment for attempted escapes. When everybody was in position, Smith quietly approached

the door and knocked.

         According to (iomez and Redden, Payne asked who was at the door. Smith answered with

a fluke name, stating it was “Ron” or “Bob.” Payne asked again, and Smith again answered with              a


fake name, Gomez said Payne opened the door, but only about eight inches. Payne made eye

contact with Gomez, and then his eyes “focused toward Smith.” Payne tried to shut the door, but

Smith blocked it. Despite Smith’s actions, Payne was able to close the door. Smith then took a step

back, loudly yelled “Police!” and kicked the door, though not hard enough to force open the door.

Shots were then fired through the door from inside the apartment. Smith was struck between the

bridge of his nose and his eye, killing him with “an instantaneously fatal shot.” Redden—who was

standing close to Smith when he was shot—tried to grab Smith as he fell. Gomez approached Smith,




                                                   —2—
but the door of the apartment opened again. Gomez could see Payne standing there, and he heard

another gunshot. This time, he returned fire, The door to the apartment closed again. At some point

during the conflict, Redden also returned fire.

        Payne testified he heard a knock on the door and asked who was there. He heard no

response, so he got his gun from under the couch. He asked again and heard no response. He then

unlocked and opened the door. Payne said that when he opened the door, it hit him on his body and

face “[l]ike somebody kicked the door,” He stated he never saw who was outside and did not hear

anybody yell, “Police!” He thought somebody was trying to “come in on [him]” when the door hit

him in the face. He said he reacted by closing the door and firing shots through it. Payne testified

he reacted this way because he “fear[edj for [his] life.” He knew that by firing through the door he

might hit somebody, but he was scared. After firing, Payne tried to listen through the door, but he

could not hear anything. He then “cracked the door” to look out and heard a gunshot. In response,

he reached out the door and shot back without seeing who was there. He then closed and locked the

door.

        Jobe and Jimmy Scarborough, Payne’s roommate, were also in the apartment with Payne.

Payne had consumed alcohol earlier in the day, and Jobe and Payne had smoked a marijuana “blunt”

together. Payne testified, however, that he was neither drunk nor high when the gang unit knocked

on his door.

        Payne testified that after he shot through the door, everybody in the apartment was “panicky.”

Payne handed the gun to Jobe, who looked out the back window and saw a person he thought was

also trying to rob them.

        A few minutes after shots were fired, Payne called 911 and told the operator that someone

tried to kick in his door and shoot him. Payne told the 911 operator that he saw two or three people
outside   the house. When the operator asked if the police were outside, he said they were not, hut he

needed them immediately. Payne also testified that during the 911 call, he heard somebody from

outside say, “Police, come out” Jobe testified that when Payne called 91 1, he flushed the drugs he

had “on him” down the toilet: he said he knew the police would be there soon. After several

minutes, Payne. Johe, and Scarborough crawled from the apartment and were arrested.

          Police othcers described Payne’s apartment as a “trap house,” a house or apartment from

which drugs are sold. Like a typical trap house, Payne’s apartment had only a few pieces of

furniture, Although Payne testified that he, Scarborough, and Jobe “smoked dope” at the apartment,

and Johe testified he sometimes sold drugs from the apartment, Payne denied it was a “dope house.”

          At trial, Payne admitted to shooting through the door. Fle argued that he thought he was

being jacked” and did not know it was a police officer. The State charged Payne with capital

murder of a police officer and sought the death penalty.           The jury convicted Payne of the

lesser-included offense of murder and sentenced him to life in prison. This appeal followed.

                                            l)ISCUSSION

                            Challenges to   Jury   Commitment Questions

          Payne argues in three points of error that the trial court erred in allowing the State to ask

improper commitment questions regarding the range of punishment during the voir dire of three

jurors. Specifically, the State used a “mercy-killing” hypothetical to contrast different types of

murder. According to Payne, by giving the mercy-killing example and then asking the jurors if they

could consider the minimum punishment in a case of murder, the State was committing the jurors

to consider a minimum sentence based on specific evidentiary facts. The State argues that the

mercy-killing hypothetical was not used to bind the jurors to assess any particular punishment, but

was used to explain an aspect of the law applicable to the case. Specifically, the State argued that




                                                   -4-
it was using the example to explain the wide range ofpunishment available for a murder conviction.

                             Standard ofReview and Applicable Law

       We review trial court nilings on objections to voir dire questions, including commitment

questions, for an abuse of discretion. Barajas v. State. 93 S.W.3d 36,38 (Tex. Crim. App. 2002).

       Commitment questions are those that commit a prospective juror to resolve, or to refrain

from resolving, an issue a certain way after learning a particular fact Standefer v. State, 59 S.W.3d

177,179 (rex. Crim. App. 2001). An attorney cannot attempt to bind or commit a prospective juror

to a verdict based on a hypothetical set of facts. Id. The purpose of prohibiting improper

commitment questions is “to ensure that the jury will listen to the evidence with an open mind—a

mind that is impartial and without bias orprejudice—and render a verdict based upon that evidence.”

Sanchez v. State, 165 S.W.3d 707,712 (fex. Crim. App. 2005).

       Not all commitment questions are improper. Standefer, 59 S.W.3d at 181. For example,

both the State and defense are entitled to jurors who can consider the entire range ofpunishment for

the particular statutory offense. Cardenas v. State, 325 S.W.3d 179, 184 (Tex. Crim. App. 2010).

Thus, both sides may question the panel on the range of punishment and may commit jurors to

consider the entire range of punishment for the statutory offense. IS Similarly, a question

committing a juror to consider the minimum punishment is both proper and permissible. IS

Hypothetical questions allow counsel to explain the application of law and may be used for such

purpose. Atkins v. State, 951 S.W.2d 787,789 (TeL Crim. App. 1997) (quoting Cuevas v. State, 742

S.W.2d 331, 336 n.6 (rex. Crim. App. 1987)). Counsel veers into impennissible commitment

questions, however, by attempting to commit a prospective juror to consider the minimum sentence

based on specific evidentiary facts. Cardenas, 325 S.W.3d at 184.




                                               -5-
                                 Application o/thc Law to (lie      FaLls



        Prospective jurors in this case were interviewed individually, so voir (lire continued for many

weeks. During portions of the voir dire. the State used a tuercyki1ling hypothetical with prospective

jurors when discussing the potential range of punishment for murder. Payne complains about the

questioning of three of those individuals who were selected and served on the jury.

        During you dire of the first of those three jurors, the prosecutor stated:

        The range of punishment for murder in Texas is five years all the way up to life in
        prison. In order to be qualified you have to he able to say to the Court that you can
        consider and give the full range if you thought it was the right thing to do.

The prosecutor then explained that “a murder is the same as me taking a gun, shooting co—counsel

in the head five times and while he’s on the ground laughing at him,” adding that “[m]urder is also

co—counsel is a very dear friend of mine and he’s dying in the hospital—.”

        Payne then interrupted and objected to the State’s voir (lire on the grounds that a specific thct

scenario was being used to qualify a juror on the range of punishment. The trial court overruled his

objection. The prosecutor then stated that it was “not trying to commit [the juror] to say that these

facts would require this kind ol’ punishment.” Instead, he was trying to explain that:

        murder is the knowingly or intentionally killing of another human being. That can
        happen different ways.... It can be as bad or as good depending on me taking a gun
        and shooting and laughing and as bad or good as me pulling the plug because he’s
        dying and I knowingly and intentionally take his life.

The prosecutor asked the juror if he could give a punishment as low as five years in prison or up to

a life sentence if the facts warranted it. The juror stated that he could.

        Similarly, during voir dire of the second juror, the prosecutor explained:

       Straight murder without an aggravating circumstance making it a capital offense is
       the intentional or knowingly taking of a human life.     .it can be as bad as on the
                                                                    .   .




       TV shows where someone kills somebody fbr wearing the wrong color or because
       they don’t like them and they kill them and they dance around. It could be heinous.




                                                 —6--
          Intentionally or knowingly taking the life can include walking into a hospital room
          and pulling the plug on a loved oneL] because you don’t want them to suffer anymore.

 Payne once again objected, and the trial court overruled the objection. The prosecutor continued:

          So if I am pulling a plug knowing it’s going to stop a breathing machine and it’s my
          intent, the jury fmds, that that person die so they don’t suffer anymore, that’s still a
          murder. You can see there arc all kinds ofcircumstances with regards to these types
          ofcases.

The prosecutor then stated that the jury must keep an open mind.

          Finally, during voir dire of the third juror, the prosecutor explained that “someone can be

found guilty of a crime and some other person can be found guilty ofthe same crime but it could be

completelytwo ends ofthe spectrum.” After providing the legal definition ofmurder, the prosecutor

stated:

          If I take a gun, I decide I want [a specific district attorney] dead and I take a gun and
          I shoot her and I cause her death, that’s a murder. Heinous murder, sounds bad....
          On the other end, if I have a family member who is laid up in the hospital because
          they have got an illness that’s causing them pain and Ipull that plug to take them out
          oftheir misery, that’s still an intentional crime, intentional murder, intentional taking
          of a liIè, if it’s my conscious objective to take their life so that they pass on.

Payne once again objected and was overruled.

          The law allows the use of a hypothetical to determine the views of prospective jurors on

issues that affect a fair determination of the case; the law does not allow such use to commit the

jurors to particular circumstances. Atkins, 951 S.W2d at 789. We therefore must determine the

State’s purpose in using the quoted illustrations. Payne argues that by giving the mercy-killing

description and then asking the jurors if they could consider the minimum punishment for murder,

the State was essentially committing the jurors on the range of punishment. The State responds that

it used the hypothetical to explain some aspect ofthe law applicable to the case. We agree with the

State’s analysis. The hypothetical did not attempt to commit the jurors to resolve an issue a certain




                                                   —7—
xay   on the basis of one or more iiwts contajned in the question. See       StandL’fcr,59   S.W.3d at I 0.

Instead, the hypothetical explained the types of situations that might constitute murder and the reason

for such a wide range ot punishment. At no point during voir dire did the State ask a question

committing these prospective jurors to give Payne the minimum range of punishment based on a

specific fact scenario, We overrule Payne’s first three points of error.

                                                  Charge Error

        Payne asserts in his remaining two points of error that he was harmed by errors in the court’s

charge We address these points of error under the same standards.

                                       Legal Standara and Applicable Law

        The purpose of the jury charge is to instruct the jury on the law that applies to the case and

to guide the jury in applying the law to the facts of the case. Sec Delgado v.     State,   235 S.W.3d 244,

249 (Tex. [rim. App. 2007); see also TEX, CODECRIM. PRo. ANN. art. 36.14 (West 2007) (trial court

shall give jury “a written charge distinctly setting forth the law applicable to the case”). When

reviewing claims of jury charge error, we first determine whether an error actually exists in the

charge. See Barrios i’. Stale, 283 S.W.3d 348, 350 (Te.C rim. App. 2009).                    In making, this

determination, we examine the charge as a whole, considering the workable relationship between

the abstract paragraphs of the charge—the instructions and definitions—and those applying the

abstract law to the facts.   P1(11(1   r. Stale, 926 S.W.2d 300, 302 (Tex. [rim. App. 1996), overruled on

other grounds by Mali/c      i’.   Slate, 953 S.W.2d 234 (Tex. Crirn. App. 1 997); Ca/dwell v. State, 971

S.W.3d 663, 666 (Tex. App.—Dallas 1998, pet. ref’d).

        A defendant may call the trial court’s attention to errors and omissions in the charge. See

TEx. CoDE [RIM. PRO. ANN. art. 36.14 (West 2007). If error exists and appellant objected to the

error at trial, then we determine whether the error caused sufficient harm to require reversal.




                                                      —8—
Barrios, 283 SW.3d at 350; A1,nanza v. Stare, 686 SW.2d 157, 171 ([cx. Crim. App. 1984),

supet seded on other gtound by tule ac stated ui I?odizgucz v Stai        758 S W 2d 77 (Tex Cram

App. 1988) (if error exists and was preserved, reversal required if’ error caused “some harm” to

appellant from the error). When there is no objection to the error at trial, we will not reverse for

jury-charge error unless the record shows egregious harm. Barrios, 283 S.W.3d at 350.

                         .Jurv Instruction on h.xeculion of A iTest 14 ‘arrunts

        In his fourth point of error, Payne contends the trial court erred in failing to instruct the jury

on the law regarding execution of arrest warrants. At trial. Payne raised the issue of whether the

police officers properly followed procedures when they executed Jobe’s arrest warrant at Payne’s

apartment, At the charge conference, Payne requested an instruction that read, “[i]n case of felony,

the officer may break down the door of any houSe for the purpose of making an arrest, if he be

refused admittance after giving notice of his authority and purpose.” This instruction largely tracked

the language of article 15.25 of the code of criminal procedure. See TEx, CODE CRIM, PRO, ANN,

art. 15.25 (West 2005). Payne also requested a second instruction that read, “If law enforcement is

executing an arrest warrant for any individual at a third party residence, they do not have authority

to enter absent exigent circumstances or absent a search warrant.” The trial court refused both jury

instructions.

        Payne argues the requested language is relevant to the self-defense instruction in this case,

which reads:

       The defendant’s belief that the deadly force was immediately necessary is presumed
       to be reasonable if the defendant: (I) knew or had reason to believe that the person
       against whom the deadly force was used: (A) unlawfully and with force entered, or
       was attempting to enter unlawfully and with force, the actor’s occupied
       habitation.  .




                                                 —9—-
 Pame argues this language m the selidetënsc instruction charged the jury with deciding whether

 Smith was unlawfully entering or attempting to enter Payne’s apartment, and the requested

 instruction would have “provided much needed guidance.” He further argues that the trial court’s

 fiuiure to include this language in the charge was error.

        The trial court should not charge a jur on a defensive theory that is contrary to the law, does

 not represent an accurate statement of the law, or is immaterial, Peddicord v. State, 942 S.W .2d 100,

 110 (Tex.   pp --Amarillo 1997, no pet.). We conclude the trial court did not err in refusing to

 include Payne’s requested instructions because the requested language was not material and would

not have assisted the jury in making any necessary determinations.

        Payne never argued at trial that he would have been justified in using selfdefense against

Smith had he known he was a police officer. Instead, he argued that he did not know Payne was a

police officer when he shot him. The charge included instructions on capital murder and the lesser-

included offense of murder. The elements in the charge for finding Payne guilty of murder contained

all of the elements for finding him guilty of’ capital murder except for the finding that Smith was a

peace officer and Payne knew he was a peace officer. The instructions also stated that if the jury

found that Payne “did not know Norman Smith to be a peace officer, then you will find the defendant

not guilty of capital murder.” Thus, the central determination the jury had to make to find Payne

guilty of the lesser-included offense of murder was whether or not Payne knew Smith was a peace

officer when he shot him. By finding Payne guilty of the lesser-included offense of murder, the jury

implicitly found that the State failed to prove beyond a reasonable doubt that Payne knew Smith was

a peace officer. Thus, an instruction regarding whether officers correctly followed procedures in

executing an arrest warrant would not have been relevant or helpful in that determination.




                                               —10—
           Payne argues that the selfdefense instruction charged the jury “with deciding whether Officer

Norman Smith was unlawfully entering or attempting to enter” Payne’s apartment.                          This

interpretation of what was required of the jury is incorrect, The jury was not charged with deciding

whether Smith was unlawfully entering or attempting to enter Payne’s apartment; it was charged with

determining the reasonableness of Payne’s belief that deadly force was necessary based in part on

whether Payne knew or had reason to believe Smith was entering his apartment unlawfully. Thejury

had already found implicitly that Payne did not know Smith was an officer when he shot him. An

instruction regarding whether or not the police officers followed proper procedures could have no

bearing on whether Payne believed Smith unlawfully entered his apartment. Thus, the requested

instruction was immaterial. We overrule Payne’s fourth point of error.

                                   Juty Instruction on Mere Presence”

           Payne argues in his fifth point of error that the trial court erred in failing to instruct the jury

in the selfdefense portion of the charge that mere presence is not sufficient to find criminal activity.

           At Payne’s request, the trial court added a self-defense instruction to the charge. The self-

defense language largely tracked the self-defense section of the penal code. See Tux,          PENAL   Coon

ANN.   §   9.3 1. n two parts of the charge, the self-defense instruction required the jury to determine

if Payne was engaged in criminal activity. The first instance involved the question ofwhether Payne

was reasonable in believing deadly force was immediately necessary. The charge instructed the jury

that Payne’s belief that deadly force was necessary was presumed to be reasonable if, in part, Payne

was not engaged in criminal activity “other than a Class C misdemeanor that is a violation of a law

or ordinance regulating traffic at the time the force was used.” The second instance where the jury

was asked to determine whether Payne was engaged in criminal activity involved the duty to retreat.

The charge provided:




                                                     11
         A person who has a right to he present at the location where the deadly force is used,
         who has not provoled the person against whoiii the deadly lorce is used, and who is
         not engaged in criminal activity at the time the deadly’ mi-ce is used is not required
         to retreat before using deadly force,

         Payne did not dispute that drugs were found in his apartment. As a result, he contends the

jury   should have been informed that “mere presence” at the scene where contraband is found does

not mean that one is “engaged in criminal activity.” This    “mere presence” instruction   was required,

according to Payne, to help the jury interpret the “engaged in criminal activity” language in the self

deRmse instruction. I Ic further argues that sd f—defense was a “hotly     contested issue”—-   if the jury

had been given proper guidance on this issue, they would have been able to determine the

reasonableness ofPavne’s belieithat deadly force was immediately necessary and would have found

that he acted in self-defense. F-Ic claims that the failure to give this instruction was error that caused

“some harm.”

         We first address whether Payne requested a “mere     presence” instruction in   the self-defense

part of the charge. Pane argues he did. The record establishes the contrary. Payne did request a

jury instruction on “mere presence.” But his request was directed to the “extraneous offenses”

portion of the charge. A request must be sufficient to call the trial court’s attention to the omission

in the charge. Stone v. State, 703 S.W.2d 652, 655 (Tex. Crirn, App. 1986).

         The trial court had two conferences where the charge was discussed. During the first

conference, Payne asked for an “instruction and a paragraph pertaining to ant’ extraneous conduct

as to mere presence because there’s been testimony that William Jobe brought drugs over to the

apartment. And we believe we’re entitled to an instruction that mere presence at the scene of a crime

is no indicia of guilt.” (Emphasis added). Later, the trial court asked if there was a “request of an

extraneous instruction regarding use of drugs, possession of drugs which was elicited at a time




                                                 —12---
outside the time frame ol this oliense?    Payne answered, “Yes” lie explained that “the evidence

as it stands rihi now we believe indicates a mere presence issue. That’s why we feel, that in the

paragraph pertaining to extraneous offense conduct raised during the course of testimony that we’re

entitled to a mere presence charge” (Emphasis added).

        The next morning, when the charge conference continued, Payne renewed his request for a

“mere presence” instruction in the section regarding extraneous oflenses. Payne stated:

        We have one last objection to the Court’s charge. On page 4 there is an instruction
        at the bottom of the page as to extraneous offenses. We believe that the testimony
        reflects an extraneous offense committed by William Jobe, possession of cocaine,
        also an extraneous offense of possession of cocaine by Jimmy Scarborough. We
        would submit to the Court we’re entitled to a parties charge in the extraneous offense
        application reflecting the definition of the law ol parties and when a person is
        criminally responsible fbr an offense committed by the conduct of another and that
        we would request an instruction with those mere presence alone does not constitute
        one a party to an offense.

The trial court denied his request. In this continued conference, Payne did object to language in the

self-defense section of the charge that suggested Payne had a duty to retreat in his own home; he did

not request a “mere presence” instruction for that section.

        After reviewing the record, we conclude that Payne (lid not request a jury instruction on mere

presence in the self-defense portion of the charge.        Instead, he requested a “mere presence”

instruction in the extraneous offenses portion only. Payne’s request for the language as to extraneous

offenses was insufficient to alert the trial court to a request for the same language in a separate part

of the charge. See Longoria v. State, 154 S.W.3d 747, 762 n. 15 (Tex. App.—-Houston [14th Dist.]

2004, pet. refd) (finding that objecting to certain language in one portion of charge insufficiently

specific to preserve objection to different language in another portion of charge).

       Having concluded that Payne never raised the issue of “mere presence” in the self-defense

portion of the charge, we must next determine whether the trial court erred          in not sua sponte




                                                —13—
mstructinu the iury on “mere presenceS” In other words, we must determine whether the trial court

had a duty to add this language in the sell—detense instructions absent a request to do so. We

conclude it did not.

         Article 3614 requires the trial court to deliver to the jury a written charge distinctly setting

forth the law applicable to the case. TEx. Coiw (‘RIM. PRO. ANN. art 36. 14. That duty exists even

when counsel tail to object to inclusions or exclusions in the charge. Taylor v. State, 332 S.W.3d

483, 486 (Tex. Crim. App. 2011). But a defensive issue is not “applicable to the case” unless the

defendant timely requests the issue or objects to the omission of the issue in the jury charge. See

Pusey   ‘.   State, 966 S.W.2d 57, 62 (Te. (‘rim. App. 1998). Thus. even if a defensive issue is raised

by the evidence, a trial court is not required, on its own motion, to instruct the jury on that defensive

issue. Id; ,Ithk.vo,7 v, Slate, 288 S.W.3d 60, 63 (Tex. App—Houston [1St Dist.j 2009, pet. retd).

         “Mere presence” is a defensive issue. See MeShane v. State, 530 S.W.2d 307, 308 (Tex.

Crim. App. 1975). Accordingly, and because Payne did not properly request the instrtiction, the trial

court had no (luty to add the “mere presence” language to the self-defense instruction. Payne has

failed to show trial court error, and we overrule his fifth point of error.

         Having overruled Payne’s five points of error, we affirm the trial court’s judgment.



                                                                   1
                                                                MARY MtRPHYJ               U
                                                                JUSTICE

Do Not Publish
TEx. R. App. P. 47

i 1087 IF.U05




                                                  —1 4
                                 niirt nf Appcak
                         FiftIi Jhürirt tif zii it lallas

                                          JUDGMENT
CHARLES PATRICK PAYNE, Appellant                        Appeal from the 283rd Judicial i)istrict
                                                        Court of Dallas County, Texas. (TLCt.No.
No. 05-11 -00X7 I-CR          V                         E09-501 73-T).
                                                        Opinion delivered by Justice Murphy,
THE STATE OF TEXAS, Appellee                            Justices Morris and Francis participating.


       Based on the   Court’s opinion   of this date, the judgment of the trial   Court   is AFflRMED.



Judgment entered October 10, 2012.




                                                             L/:/f%        1ltW
                                                       MARY MURPTIY
                                                       JUSTICE  ‘
