Affirmed and Opinion Filed February 10, 2015




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-13-01759-CR

                               NICHOLAS DAVIS, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 292nd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F12-58570-V

                              MEMORANDUM OPINION
                           Before Justices Francis, Evans, and Stoddart
                                   Opinion by Justice Francis
       Nicholas Davis appeals his conviction for the murder of his uncle, Ricky Garcia. After

finding appellant guilty and making a deadly weapon finding, the jury assessed punishment at

thirty years in prison. In two issues, appellant claims the evidence is insufficient to support his

conviction and the trial court erred by failing to properly instruct the jury. We affirm.

       In his first issue, appellant claims the evidence is insufficient to support his conviction

and the jury’s rejection of his self-defense claim. In assessing the sufficiency of the evidence,

we review all the evidence in the light most favorable to the verdict to determine whether any

rational trier of fact could have found the essential elements beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319 (1979).          We defer to the jury’s credibility and weight

determinations because the jury is the sole judge of the witnesses’ credibility and the weight to

be given their testimony. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We
may not substitute our judgment for that of the fact finder. See Brooks v. State, 323 S.W.3d 893,

899 (Tex. Crim. App. 2010). When an appellant challenges the legal sufficiency of the evidence

supporting a jury’s rejection of a self-defense claim, we do not look to whether the State

presented evidence refuting appellant’s self-defense testimony; rather we determine whether,

after viewing all the evidence in the light most favorable to the prosecution, any rational trier of

fact would have found the essential elements of the offense “beyond a reasonable doubt and also

would have found against appellant on the self-defense issue beyond a reasonable doubt.”

Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).

       A person commits an offense if he intentionally or knowingly causes the death of an

individual. TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011). 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. Id. § 9.31(a). A person is justified in using deadly force against another if the actor would

be justified in using force against another under section 9.31 and 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).

       The indictment and jury charge alleged that, on or about July 30, 2012, appellant (1)

intentionally or knowingly caused Garcia’s death by shooting Garcia with a firearm, a deadly

weapon, or (2) intended to cause serious bodily injury to Garcia and committed an act clearly

dangerous to human life, shooting Garcia with a firearm, that caused Garcia’s death. The charge

instructed the jury on self defense as defined by the penal code and outlined above.

       At trial, Ariadna Kubota said she was married to Garcia, and they had two children. The

couple divorced but later tried to reconcile. Kubota and the children moved into Garcia’s

apartment in Pleasant Grove where Garcia’s sister, Jenny Davis, also lived with her three

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children, Marcella, William, and appellant. On Friday night, July 27, 2012, Garcia, Kubota, and

Davis went to a bar with friends. Appellant babysat the Garcia children at the Garcia apartment.

About forty-five minutes after arriving at the bar, Kubota got a call from neighbors, telling her

that their apartment door had been kicked in. She asked about the children but was told no one

was in the apartment except the police. The three rushed back to the apartment and discovered

the Garcia children were at Davis’s apartment with Marcella. Appellant was not there.

       Garcia and Kubota returned to their apartment and, while they were cleaning up,

appellant, Marcella, and two of appellant’s friends, Brandon Nash and Brandon Fisher, showed

up. Fisher and Marcella were also dating. When Garcia and Kubota asked appellant why he left

their apartment, appellant told them he took their son to Marcella to stop his crying. As the

evening progressed, Garcia became suspicious that appellant was somehow involved in the

burglary. He also suspected Nash and Fisher were involved because the three were close friends

and often spent time together. After talking to a neighbor the following day, Garcia went to

Davis’s apartment and confronted appellant about the break-in. Garcia brought Davis and

appellant back to his apartment where the discussion continued. When appellant denied that he

and his friends were involved, Garcia grabbed a steak knife, drove it into the table, and

threatened appellant, saying he would “hurt him” if he was lying. Appellant and his mother left.

       Garcia’s other sister, Angela Ramirez, stopped by the Garcia apartment on Saturday and

invited Garcia and his family to spend the day at her house on Sunday. The family went and did

not return to their apartment until around 2:00 a.m. When they got home, Garcia helped Kubota

get the children in the house, then told her he was going to walk the dog. After he was gone “for

quite a while,” Kubota went outside for a cigarette and heard Davis screaming, “[N]o, Ricky, get

up, get up, no.” Kubota ran toward Davis’s apartment and saw Ricky Garcia lying on the

ground. Davis grabbed her and said she “didn’t have nothing to do with this.” Kubota ran to

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Garcia who was bleeding and struggling to breathe. She asked who shot him, and he said,

“Nico,” which is what they called appellant. Police arrived and, when they asked him what

happened, he said, “My nephew shot me.” Garcia died shortly thereafter.

       Fisher said he, Nash, and appellant were friends and spent a lot of time together. They

spent July 30th at appellant’s apartment. Around 2:00 or 3:00 a.m., they were in Marcella’s

room, playing video games, when someone started banging on the door. Nash opened the door,

and Garcia “bum-rushed in.” He was carrying a Styrofoam cup and headed straight to the

kitchen where he started cooking a hamburger. Appellant stayed in Marcella’s room but Fisher

walked down the hallway to see what was going on. Nash asked Garcia why he was there.

Garcia walked out of the kitchen with the frying pan and a cooking utensil in his hand; he said

something to Nash but Fisher could not hear what it was. Garcia went back into the kitchen, and

Nash walked toward Marcella’s room, saying he was “fixing to call my daddy.” Fisher followed

Nash, and they passed Davis in the hallway on her way to the kitchen. Appellant was standing in

the doorway of Marcella’s room. Fisher and Nash walked into Marcella’s room and sat on the

bed. Garcia, whose hands were empty, walked toward appellant and said, “If I found out

something – you had something to do with it . . .” He then slapped appellant. Appellant said,

“Move, momma,” and Fisher heard about five gunshots. By the time Fisher got to the door of

Marcella’s room, Garcia was outside, falling down the stairs. Appellant ran away.

       Nash said he had known appellant for about five or six years and had met him through his

girlfriend, Marcella. He, Fisher, and appellant spent “every day” together. During the early

hours of July 30, the three were at appellant’s apartment playing video games. Sometime after

two in the morning, they heard banging on the door. Appellant went to the door but came back

without answering. According to Nash, appellant was “shaking like he’s terrified” and said it

was his uncle. The banging continued until Nash answered the door. Although he barely

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cracked the door open, Garcia “barged in” and walked in the house. Garcia told Nash “[Y]’all

got me fucked up. Y’all think this shit is funny. Y’all know what’s been going on.” He then

walked in the kitchen and started cooking himself a hamburger. Appellant and Fisher came in

the living room; Garcia walked out of the kitchen with the frying pan and a knife and repeated

his previous comments.

       Nash decided to call his father and walked toward Marcella’s room. Fisher followed him

into Marcella’s room. Appellant was standing in the doorway outside his mother’s bedroom

door. Nash heard Garcia tell appellant, “[I]f I find out you had something to do with it, I’m

going to fuck you up” and saw Garcia slap appellant with one hand; he could not see the other

hand. Within seconds of the slap, he heard gunshots. According to Nash, the shots “came off

pretty fast, ” and while appellant was shooting, he said, “Move, momma.”

       During cross examination, Nash stated he did not remember a lot of details about that

night because he smokes a lot of “[w]eed, marijuana.” After reviewing his videotaped interview

taken hours after the shooting, he conceded he told police that, right before Garcia slapped

appellant, he told Nash and Fisher, “I feel in my heart y’all didn’t have anything to do with it.”

       Davis contradicted Kubota’s testimony about Garcia’s and appellant’s interaction at the

apartment on Saturday. She claimed Garcia put the knife to appellant’s neck and threatened him

but did not stick the knife in the table. She said both she and appellant were scared by his

actions and left. With respect to the morning Garcia died, she said she woke up when she heard

loud arguing in her apartment. Garcia, known for having a short temper and being violent, was

there and was drunk. Davis walked in the kitchen and saw a hamburger patty burning on the

stove, so she took it out of the pan and made a sandwich for her brother. Nash and Garcia were

arguing in the hallway so she walked toward them and saw Garcia slap appellant. Davis said

“Then [Garcia] walked down the hallway and I was walking behind him and [appellant] started

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shooting and he said, ‘Momma, move,” and I moved out of the way . . . [appellant] shot him and

he fell to the ground . . . He got up and he struggled to the door and opened the door and he fell

down the stairs.” Although she initially said she was walking behind Garcia when the shooting

started, during cross examination she said Garcia was walking toward her and away from

appellant when the shooting started. On redirect, she said Garcia was facing appellant when he

started shooting. Davis did not recall seeing anything in Garcia’s hand at the time he slapped

appellant.

       Medical examiner Read Quinton said Garcia, who weighed 312 pounds, was shot five

times: once in the right shoulder, twice in the upper left abdomen, once in the right abdomen,

and once in the upper left side of the back. The gunshot in the right shoulder traveled downward

from right to left and hit both lungs and the heart, ending up in the abdomen. The bleeding from

this wound was mostly internal and, although not an “immediately fatal gunshot wound,” this

was “not survivable . . . without immediate massive surgical intervention.” Quinton also ran

toxicology on blood specimens, and Garcia’s blood alcohol concentration was .159; he had no

drugs in his system.

       Appellant argues the evidence he acted in self defense is overwhelming, primarily

because Garcia was a large drunk man, known for his temper and acting violently, who had

previously threatened appellant with a knife. However, according to two eyewitnesses, Garcia

did not have anything in his hands at the time he was shot. All three witnesses said Garcia

slapped appellant who immediately shot Garcia five times. Davis said Garcia was walking away

from appellant when he was shot, and the medical examiner noted Garcia was shot in the back as

well as in his abdomen and shoulder. After viewing all the evidence in the light most favorable

to the prosecution, we conclude any rational trier of fact would have found the essential elements




                                               –6–
of murder and the same rational trier of fact would have found against appellant on the self-

defense issue. See Saxton, 804 S.W.2d at 914. We overrule appellant’s first issue.

          In his second issue, appellant claims the trial court erred by failing to instruct the jury on

the presumption of reasonableness of deadly force in the self-defense paragraph of the charge.

          When addressing a claim of jury charge error, we first decide whether error exists. Ngo

v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If we find error, we then analyze that

error for harm. Id. Preservation of charge error does not become an issue until we assess harm.

Id. Under Almanza, jury charge error requires reversal when the defendant has properly objected

to the charge and we find “some harm” to his rights. Id.; Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1984) (op. on reh’g). When the defendant fails to object or states that he has

no objection to the charge, we will not reverse for charge error unless the record shows

“egregious harm” to the defendant. Ngo, 175 S.W.3d at 743. We first turn to whether error

exists.

          As noted previously, a person is justified in using deadly force against another if, among

other things, 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.” TEX. PENAL CODE

ANN. § 9.32(a)(2). The actor’s belief that the deadly force “was immediately necessary” as

described by subdivision(a)(2) is presumed to be reasonable if the actor:

          (1) 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, vehicle, or
                  place of business or employment;
                  (B) unlawfully and with force removed, or was attempting to remove
                  unlawfully and with force, the actor from the actor's habitation, vehicle, or
                  place of business or employment; or
                  (C) was committing or attempting to commit [aggravated kidnapping,
                  murder, sexual assault, aggravated sexual assault, robbery, or aggravated
                  robbery];
          (2) did not provoke the person against whom the force was used; and
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       (3) was not otherwise 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.

TEX. PENAL CODE ANN. § 9.32(b). When a rule or statute requires an instruction under a

particular set of circumstances, that is “the law applicable to the case,” and the trial court must

instruct the jury accordingly. Oursbourn v. State, 259 S.W.3d 159, 180 (Tex. Crim. App. 2008).

A defensive issue is not law “applicable to the case” unless the defendant timely requests the

issue or objects to the omission of the issue in the jury charge. Id. (citing Posey v. State, 966

S.W.2d 57, 61−63 (Tex. Crim. App. 1998)).

       Here, there is no record of the charge conference or of what instructions, if any, appellant

objected to or requested. Although the trial court is required to instruct the jury on the self-

defense presumption of reasonableness when the evidence raises it, we nevertheless conclude the

trial court did not err by not doing so in this case. There is no evidence Garcia was committing

or attempting to commit murder when appellant shot him. Rather, the evidence shows that,

although he had threatened appellant two days earlier, Garcia slapped appellant’s face and was

walking away when appellant shot him five times. The evidence also shows Garcia had no

weapon in his hand at the time he was shot. Under these circumstances, we cannot conclude the

trial court erred by failing to instruct the jury on the presumption of reasonableness in the self-

defense instruction. We overrule appellant’s second issue.

       We affirm the trial court’s judgment.


Do Not Publish
TEX. R. APP. P. 47.2(b)
131759F.U05
                                                     /Molly Francis/
                                                     MOLLY FRANCIS
                                                     JUSTICE




                                               –8–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

NICHOLAS DAVIS, Appellant                           On Appeal from the 292nd Judicial District
                                                    Court, Dallas County, Texas
No. 05-13-01759-CR        V.                        Trial Court Cause No. F12-58570-V.
                                                    Opinion delivered by Justice Francis,
THE STATE OF TEXAS, Appellee                        Justices Evans and Stoddart participating.

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


Judgment entered this 10th day of February, 2015.




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