AFFIRMED; Opinion Filed July 11, 2013.




                                            In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas

                                      No. 05-12-00197-CR

                              WAAD JAJEES HABIB, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 203rd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F11-55034-P

                               MEMORANDUM OPINION
                         Before Justices Bridges, FitzGerald, and Myers
                                   Opinion by Justice Myers
       Appellant Waad Jajees Habib was convicted of capital murder and sentenced to life

imprisonment. In his sole issue, he argues the evidence is insufficient to support the trial court’s

jury instruction on “provoking the difficulty.” We affirm.

                           BACKGROUND AND PROCEDURAL HISTORY

       Salah Zardeh and Magdi Ibrahim owned the King’s Food Market in Dallas, Texas. Prior

to the day of the alleged offense, appellant was employed at the market doing various jobs,

including electrical work, construction, and nighttime security, but he was not working there at

the time of the alleged offense.

       On the afternoon of May 4, 2011, appellant entered the store and shot Salah, Magdi, and

Eid Faltaous, their employee. Salah and Eid died from gunshot wounds. Magdi survived but
was confined to a wheel chair when he testified at appellant’s capital murder trial. The shooting

was both audio and video-recorded.

          Eid’s brother Nasser Faltaous testified through an interpreter that he and his brother came

to the United States in 2002. Nasser knew appellant and had seen him in the store on several

occasions prior to the alleged offense. He recalled that in January of 2011, he saw appellant in

the store arguing with Salah and Eid. Appellant gave both of them a “hard time . . . and he tried

to argue with me that day.” Eid also told Nasser about an argument that had occurred between

appellant and Salah ten days to two weeks prior to the shootings.

          Salah’s wife Ruhaifa testified that at the time of the alleged offense, appellant’s

relationship with Salah was not good. About one month before the shootings, she was sitting

next to her husband when he received a telephone call from appellant. She heard appellant

“being loud and threatening to kill” Salah. She told the jury that Salah did not own a gun, did

not keep one at the store for protection, did not like or allow any other weapons there, and he

never borrowed money from appellant. She identified State’s exhibit 107 as a recording of a

voicemail message that she discovered on her husband’s phone as she was collecting his

belongings shortly after the shootings. The message, which was from appellant, was in Arabic

and was left on Salah’s phone the day before the shootings. According to the interpreter’s

translation, appellant said: “Listen, this is your last chance. Solution. I give you a lot of

chances. Give me my money. I’m not asking for all of it. Half. If you don’t give it to me, this

is your last chance. Solution. Bye.”

          Magdi Ibrahim testified that he emigrated from Egypt and had lived in the United States

for fifteen years.1 He recalled that appellant had a good relationship with Salah for about one



   1
       Most of Magdi’s testimony was in English but he needed occasional assistance from an interpreter.



                                                                    –2–
year. After that, however, appellant started causing trouble at the store and was “[a]lways

fighting” with Salah. There were times when Salah called the police for assistance.

       About two months before the shootings, appellant threatened to kill Salah and Eid,

saying, according to Magdi, “I kill Salah and Eid.” Magdi added that “lots of people” heard

appellant say this. Magdi also testified that he feared for his life because of appellant’s threats,

but Salah never took appellant’s threats seriously.

       Magdi recalled that, on the day of the shootings, he, Salah, Eid, and some customers were

at the store. Appellant entered the store and went straight towards the back to use the restroom––

Magdi said he used the store’s restroom “all the time.” When appellant left the restroom, he

confronted Salah, “cussed him,” and demanded money. Magdi described what happened next:

       When I see [appellant] come to Salah, I leave the office first and I go to
       [appellant]. And he tell him, motherfucker, give me the money, give me the
       money. Salah tell him, what money. And I pushed [appellant], I tell him, like I
       want to keep peace, I push him a little bit. Right away [appellant] take the gun
       and shoots Salah, in one second, you know.

Magdi could not remember who was shot next, either himself or Eid. But he testified that no one

threatened to kill appellant before he started shooting, and that no one pointed a gun at appellant.

There were, in fact, according to Magdi, no guns kept at the store. Magdi recalled that the police

found a knife at the crime scene but he did not know where the knife came from, he had never

seen it before, he did not have a knife, he had never seen either Salah or Eid carrying the knife,

and neither one of them had it in their hands when appellant demanded money and shot Salah.

       Arvelia Hill, who witnessed the shootings, testified that she lived near the King’s Food

Market, knew the owners, and shopped there every day for “two, three years.” She also knew

appellant, and she recalled that there were several prior incidents at the store involving appellant.

On one occasion, approximately a week before the shootings, Magdi told appellant that Salah did

not want him in the store and appellant told Magdi he was “going to kill them.” In addition, a


                                                –3–
month or two before the shootings, appellant came into the store “wanting some money,” and

started fighting with Salah. Appellant pulled a gun on Salah. The police were called, and

appellant went to jail. Hill also testified that whenever appellant came into the store he was

always hollering and yelling, and would try to “take things.” According to Hill, appellant was

the one who “was starting the problems.”

       Hill testified that, on the day in question, she was in the back of the store, at the soda

cooler, when she saw appellant leave the restroom, walk past her, and head to the front counter.

Appellant lifted up the counter and tried to enter the office, where Salah was on the telephone.

Hill saw Salah put down the phone and push appellant back behind the counter and slam the

counter down, telling appellant he “couldn’t be up there.” Magdi was standing just behind Salah.

Salah placed his index finger over his mouth and told appellant “shh,” indicating he wanted him

to “keep it down.” Then appellant chuckled, pulled a gun out of a briefcase or bag, and started

shooting. As he fired the gun appellant said: “[H]ow does fifty thousand dollars look now[?] I

want some money, give me some money.” None of the shooting victims held any weapons,

according to Hill.

       Hill recalled that she “stood there in shock” as appellant continued firing. Then she

remembered that her mother was in the back of the store. After she saw all three of the gunshot

victims fall to the floor, Hill ran to the back of the store to be with her mother. Hill also tried to

call 911. Appellant started saying everyone inside the store owed him money, that “everybody

was going to die,” and that “he was going to kill everybody.” After he stopped shooting,

appellant put his gun “in the potato chip rack.”

       When police officers arrived at the scene, appellant met them at the door and said

repeatedly: “I’m the one you’re looking for, I did it. Arrest me.” He was not carrying a

weapon. Police, however, found a gun on the shelf where the potato chips were displayed, which

                                                   –4–
was located on the first aisle as you enter the store. A folded pocket knife was found on the floor

near an overturned stool.

          Both video and audio recordings of the alleged offense were admitted. In the edited

audio recording, State’s exhibit 43, appellant is heard repeatedly and frantically demanding:

“Where’s my money.” “Give me my money.” “I told you, mother fucker, where is my money,

where is my money?” Appellant continues demanding “where’s my money” as a number of

gunshots are heard, followed by screams and moaning. State’s Exhibit 41 is a DVD that contains

the edited video from four in-store surveillance cameras on May 4, 2011. The footage from

camera three shows appellant entering the store carrying a bag in his hand, and approaching the

front counter. Both cameras three and four show him lifting up the entrance to the counter and

walking past the cash register at approximately 4:24:50 p.m. According to the view from camera

four, after walking past the front counter, appellant attempts to force his way into a small office

located just behind the counter. Two men emerge from the office and try to restrain appellant,

assisted by a third man who is attending the cash register. Appellant struggles with the men

briefly before shooting them. Both the audio and video exhibits were published to the jury.

          Appellant testified2 that nobody ever knew he loaned Salah $50,000 to buy space for

another store. After he loaned Salah the money, appellant and Salah argued about this debt for

nine or ten months because Salah changed his mind about the other store, and refused to repay

appellant’s money. Appellant said these arguments escalated into threats from Salah, and that

Salah threatened to shoot and kill appellant. Appellant, in turn, threatened to do the “same

thing” to Salah.




   2
       Most of appellant’s testimony was in English but he needed occasional assistance from an interpreter.



                                                                     –5–
       Appellant recalled that, on the day of the shootings, he went to the store to talk to Salah

about the money. Appellant went to the restroom, then approached the front counter. He started

to talk to Salah about the money. Appellant testified:

       I was asking, I need money. I told Mr. Salah, I need my money, please. And he
       jumped to me and said, what money. And after that, I see some––they push me
       out, they try to fight with me, push me. And I see they are going to pull something
       from his pocket, and at that time, I’m scared for my life, he’s going to shoot me.
       And I pulled my trigger.

       Appellant testified that before he approached Salah to ask him for his money he put the

gun in his bag; he was afraid they were going to kill him because they had threatened him on

previous occasions. Appellant testified that he saw Salah trying to pull “something shiny” from

his pocket. Appellant thought it was a gun, and that was when he reached for the gun in his bag

and shot Salah. He also stated that he just pulled the trigger and did not know how many times

he shot. On direct examination, appellant testified that after the shooting he “tried to help

everybody” and that he called 911 and said “they tried to kill [him]” and he “was scared for [his]

life.” However, on cross-examination, appellant stated that he actually told the 911 operator that

“they” took his money and would not help him. He also admitted on cross-examination that the

day before the shooting he had called Salah’s phone and left a voice message stating that it was

his last chance and that he better get him the money, even if it was just half.

                                            DISCUSSION

       In his issue, appellant argues the trial court erred by instructing the jury, over his timely

objection, on “provoking the difficulty” as a limitation on the right to self-defense “because that

issue was not raised by the evidence.”

       When the appellant alleges jury charge error on appeal, we first determine whether the

jury charge is erroneous. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If the

charge is erroneous, we analyze the error for harm. Id. “The degree of harm necessary for


                                                –6–
reversal depends on whether the appellant preserved the error by objection.” Id. When the

appellant preserves the complained-of error by timely objection, we will reverse if we find

“some harm” to the appellant’s rights. See id.

       Generally, “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.” TEX. PENAL CODE ANN. § 9.31(a). The doctrine

of provocation, also known as “provoking the difficulty,” is a limitation on the right of self-

defense. See Smith v. State, 965 S.W.2d 509, 512 (Tex. Crim. App. 1998). The use of force is

not justified if the actor “provoked the other’s use or attempted use of unlawful force,” unless

(A) the actor abandons the encounter “or clearly communicates to the other his intent to do so

reasonably believing he cannot safely abandon the encounter,” and (B) the other person

“nevertheless continues or attempts to use unlawful force against the actor.” TEX. PENAL CODE

ANN. § 9.31(b)(4)(A), (B).

       The doctrine of provocation requires an element of intent that is not explicit in the penal

code. See Mendoza v. State, 349 S.W.3d 273, 279 (Tex. App.––Dallas 2011, pet. ref’d). A

charge on provocation is required when there is sufficient evidence (1) the defendant did some

act or used some words which provoked the attack on him, (2) such act or words were reasonably

calculated to provoke the attack, and (3) the act was done or the words were used for the purpose

and with the intent that the defendant would have a pretext for inflicting harm upon the other.

Smith, 956 S.W.2d at 513. A provocation instruction should be submitted to the jury only “when

there is evidence from which a rational jury could find every element of provocation beyond a

reasonable doubt.” Id. at 514. A defendant may have a desire that the other person will attack

him, or he may seek the other person with the intent to provoke a difficulty, but the defendant

must go further and do or say something that actually provokes the attack before he forfeits his

                                                 –7–
right to self-defense. Id. The elements of provocation are fact questions for the jury. Id. at 514-

18; Thomas v. State, 750 S.W.2d 324, 325 (Tex. App.––Dallas 1988, pet. ref’d). Our inquiry is

whether, in the light most favorable to giving the instruction, there was sufficient evidence with

which a jury could have found provocation beyond a reasonable doubt. Smith, 956 S.W.2d at

514; Thomas, 750 S.W.2d at 325.

       Appellant contends the trial court erred in instructing the jury on provocation because if

appellant acted provocatively “it was only his demand for repayment of his perceived debt” and

“such a course of action is legally insufficient” to support a provocation instruction. But the

evidence in this case shows more than a dispute over repayment of a debt; it shows a history of

animosity between appellant and Salah due to appellant’s repeated demands for money from

Salah. These demands often escalated into fights between appellant and Salah and led, more

than once, to appellant being removed from the store. On one occasion, appellant pulled a gun

on Salah and the police were called. A week before the shootings, Magdi told appellant that

Salah did not want appellant in the store and appellant told Magdi he was “going to kill them.”

On the day before the shootings, appellant left a message on Salah’s voicemail telling him this

was his “last chance” to return appellant’s money. There is sufficient evidence from which the

jury could reasonably infer appellant knew his acts and words would incite Salah and were

reasonably calculated to provoke an attack, and that appellant’s acts and words were done for the

purpose and with the intent that appellant would have a pretext for inflicting harm upon the

victims. Looking at the evidence in the light most favorable to the instruction, we therefore

conclude, based on the entirety of the record, that there is sufficient evidence from which the jury

could find every element of provocation beyond a reasonable doubt, and that the trial court

properly instructed the jury on provocation. Because there is no jury charge error, we do not

reach the issue of harm. We overrule appellant’s issue.

                                                –8–
       We affirm the trial court’s judgment.



                                                     Lana Myers
                                                     LANA MYERS
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47
120197F.U05




                                               –9–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

WAAD JAJEES HABIB, Appellant                           On Appeal from the 203rd Judicial District
                                                       Court, Dallas County, Texas
No. 05-12-00197-CR         V.                          Trial Court Cause No. F11-55034-P.
                                                       Opinion delivered by Justice Myers.
THE STATE OF TEXAS, Appellee                           Justices Bridges and FitzGerald
                                                       participating.

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

Judgment entered this 11th day of July, 2013.




                                                   /Lana Myers/
                                                   LANA MYERS
                                                   JUSTICE




                                                –10–
