Opinion
No. 05-18-00739-CR
05-29-2019
FREDERICK DOUGLAS FEASTER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 416th Judicial District Court Collin County, Texas
Trial Court Cause No. 416-80927-2017
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Reichek
Opinion by Justice Schenck
Frederick Douglass Feaster appeals his conviction for murder. In six issues, appellant argues the evidence is legally insufficient to support his conviction, there is jury charge error, and the trial court erred in failing to properly answer a question the jury posed during its deliberations and in overruling three evidentiary objections. We affirm the trial court's judgment. Because all issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
On February 3, 2017, Miko Walker was fatally shot in his apartment. Appellant was charged with capital murder, having allegedly caused Walker's death while robbing or attempting to rob him. At trial, the evidence established the following. Shortly before midnight on February 3, 2017, Donyell Burdette heard gunshots coming from an apartment located near the unit she occupied. She looked out the window and saw three people running. They appeared to get into two different vehicles before driving away, one of which was a Toyota Camry, the other a black Cadillac. Burdette immediately called 9-1-1.
Police responded to the call and found Walker's body on the living room floor of his apartment. He had been shot in the torso two times and died as a result. A handgun and a cell phone were located near his body. The television was on and tuned to a music station. In the master bedroom, a candle was burning, the mattress was askew from its bedframe, and a nightstand drawer was open. Police found several spent shell casings, two live projectiles, bullet holes in several places, and a spent projectile in a wall. They also located a second cell phone in the bathroom adjoining the master bedroom and slightly more than $16,000 in cash in a drawer. Outside of the apartment, police found blood near a parking spot across from Walker's apartment. A black Cadillac had been parked in that spot. That Cadillac was owned by Randal Love.
Within minutes of the 9-1-1 call, appellant and a blond woman, later identified as Montoia Tavares, arrived at a nearby hospital. A black Cadillac dropped them off. Appellant and Tavares walked into the hospital, and Tavares asked for help. Appellant had five gunshot wounds on his body, two of which were exit wounds. The wounds were to his upper right thigh, right wrist, and left lower calf.
Hospital staff notified the police officer on duty that they had a shooting victim. Appellant told the officer that he had been shot while being robbed after leaving a bar and grille. Appellant told other officers a similar story. He indicated that he had gone to a bar to watch a friend's pool tournament and had plans to meet up with his girlfriend and "homeboy" to go to a strip club. He told police officers he went to a 7-Eleven convenience store to buy cigars and claimed that when he got there two men jumped out of a car and told him to "drop out," and he took off running. He claimed the men followed him and shot at him, and he ran into a neighborhood, where his girlfriend and "homeboy" picked him up and took him to the hospital. Appellant gave police a fictitious name for Tavares.
Police officers tried to corroborate appellant's account of what had transpired, but they were unable to locate a bar that matched appellant's description, or any type of crime scene consistent with appellant's story. They found appellant's story suspicious because appellant was not able to provide the officers with a clear description of the location where he claimed to have been shot, despite being able to direct his girlfriend and "homeboy" to that same location. Further, appellant's gunshot wounds entered on the front of his body, which was inconsistent with his account of being shot while running away. The police soon learned that there had been a shooting at a nearby apartment complex that they surmised might be connected to appellant.
Police detectives determined that the cell phone found near Walker's body belonged to appellant and the cell phone found in the bathroom belonged to Tavares. Cell phone records showed that Tavares and Walker had a prior relationship, and Tavares and appellant were currently in a relationship. Tavares and Walker had nevertheless been in contact around the time of Walker's death.
Appellant's DNA matched the blood that was found in the parking lot of Walker's apartment complex and on a projectile that was located on the floor of Walker's apartment. No one else's blood was found at or near Walker's apartment.
Shortly before his death, Walker sent a picture of a stack of money to Tavares. Tavares then sent the picture to appellant. It appeared to be the same stack of money that the police found in Walker's apartment. On the night of the murder, Tavares texted Walker that she had called a cab. Walker responded, "Hurry up cum on baby brng dat booty to dady." She replied, "On my way."
At 11:28 p.m., on the night of Walker's death, appellant's cell phone pinged off the cellular tower closest to Walker's apartment. At 11:36 p.m. a call was placed from Tavares' cell phone to appellant's cell phone. That call pinged off the same tower. Appellant had a second cell phone that also pinged off the same tower at 11:41 p.m., and then off the cellular tower closest to the hospital at 11:47 p.m.
Deion Christophe, a firearm and tool mark examiner, examined ammunition components, four projectiles and four spent cartridge cases collected from either Walker's body or the vicinity of his apartment. He also examined Walker's gun. Christophe identified several of the projectiles and cartridge cases as having come from Walker's gun. He also identified two projectiles as not coming from Walker's gun, the bullet recovered from Walker's body and a second that was recovered from the backdoor, on the north wall of Walker's apartment. Both rounds appeared to have been fired from a revolver. The firearm used to kill Walker was never recovered.
The State's theory was that appellant and Tavares were in a relationship and that Walker was trying to woo Tavares back to him with money, nice clothes, and marijuana. As part of his attempt to woo Tavares, Walker sent her a photo of the stack of cash. Tavares sent the photo to appellant, and they formed a plan to rob Walker. Tavares entered Walker's apartment and left the door unlocked. She accompanied Walker to his bedroom and then entered his bathroom. Appellant then entered, shot two warning (or alarming) shots, Walker, not acceding to his robbers, sprung off the bed, grabbed his gun and rushed into the living room. Then gunfire was exchanged between appellant and Walker.
Appellant's theory throughout trial was that he did not shoot Walker, but whoever did must have acted in self-defense. Appellant did not testify and he did not call any witnesses.
Appellant was charged with the capital murder of Walker. The State asserted appellant caused the death of Walker by shooting him with a firearm while committing or attempting to commit a robbery. The jury found appellant guilty of the lesser-included offense of murder and assessed punishment at 30 years' confinement. This appeal followed.
DISCUSSION
I. Sufficiency of the Evidence
In his first issue, appellant challenges the legal sufficiency of the evidence to support his conviction for murder, urging the evidence only established he was present when the murder occurred, which is not enough to sustain a conviction.
In his brief appellant discusses cases involving law of the parties. Because this case was not tried or submitted to the jury on a law of the parties' theory, these cases are not persuasive.
In assessing the legal sufficiency of the evidence to support a criminal conviction, we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); McCay v. State, 476 S.W.3d 640, 647 (Tex. App.—Dallas 2015, pet. ref'd). We must give deference to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. Our role is only to ensure that the jury reached a rational conclusion, not to re-evaluate the weight and credibility of the evidence. See Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).
A person commits murder if he intentionally or knowingly causes the death of another. TEX. PENAL CODE ANN. §19.02(b)(1). A person intentionally causes the death if it is his conscious objective or desire to do so. Id. §§ 6.03(a), 19.02(b)(1). A person knowingly causes the death of an individual if he is aware that his conduct is reasonably certain to yield that result. Id. §§ 6.03(b), 19.02(b)(1). A jury may infer intent from any facts that tend to prove its existence, including the method of committing the crime and the nature of wounds inflicted on the victim. Hart v. State, 89 SW.3d 61, 64 (Tex. Crim. App. 2002).
There is no question that the State is required to prove beyond a reasonable doubt that the accused is the person who committed the crime charged. See Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim. App. 1984), overruled on other grounds by Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991). Identity may be proved by either direct or circumstantial evidence, coupled with all reasonable inferences from that evidence. Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009). When there is no direct evidence of the perpetrator's identity elicited from trial witnesses, no formalized procedure is required for the State to prove the identity of the accused. See Sepulveda v. State, 729 S.W.2d 954, 957 (Tex. App.—Corpus Christi 1987, pet. ref'd). The State may prove identity by inference alone. Robeson v. State, 16 S.W.3d 156, 167 (Tex. App.—Austin 2000, pet. ref'd) (citing United States v. Quimby, 636 F.2d 86, 90 (5th Cir. 1981)). Juries are permitted to draw multiple reasonable inferences as long as each inference is supported by the evidence presented at trial. Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007).
In Hooper, the court of criminal appeals recognized that without concrete examples, it can be difficult to differentiate between inferences and speculation, and between drawing multiple reasonable inferences versus drawing a series of factually unsupported speculations. Id. at 16. It therefore set forth the following hypothetical to illustrate the differences.
A woman is seen standing in an office holding a smoking gun. There is a body with a gunshot wound on the floor near her. Based on these two facts, it is reasonable to infer that the woman shot the gun (she is holding the gun, and it is still smoking). Is it also reasonable to infer that she shot the person on the floor? To make that determination, other factors must be taken into consideration. If she is the only person in the room with a smoking gun, then it is reasonable to infer that she shot the person on the floor. But, if there are other people with smoking guns in the room, absent other evidence of her guilt, it is not reasonable to infer that she was the shooter. No rational juror should find beyond a reasonable doubt that she was the shooter, rather than any of the other people with smoking guns. To do so would require impermissible speculation. But, what if there is also evidence that the other guns in the room are toy guns and cannot shoot bullets? Then, it would be reasonable to infer that no one with a toy gun was the shooter. It would also be reasonable to infer that the woman holding the smoking gun was the shooter. This
would require multiple inferences based upon the same set of facts, but they are reasonable inferences when looking at the evidence. We first have to infer that she shot the gun. This is a reasonable inference because she is holding the gun, and it is still smoking. Next, we have to infer that she shot the person on the floor. This inference is based in part on the original inference that she shot the gun, but is also a reasonable inference drawn from the circumstances.Id.
The evidence, viewed in the light most favorable to the verdict, established appellant and Tavares were present in the apartment at the time Walker was fatally shot. The evidence further suggested that three people ran to one or two vehicles shortly after the shooting and that Randal Love drove the black Cadillac seen leaving the apartment complex. A reasonable inference from this evidence, which appellant acknowledges, is that one of them fatally shot Walker. Unlike the example in Hooper, where the available evidence pointed simultaneously and equally to multiple possible suspects as a single perpetrator, here the evidence established appellant was the only suspect who was shot by the decedent, Walker. The State presented evidence through Detective Pfahning, one of the detectives who processed the crime scene, that the location of shell casings and projectiles indicated that guns were fired towards each other, which, he explained, is logically consistent in a scenario in which an armed victim is warding off an armed assailant. From this evidence, a rational jury could have concluded appellant alone exchanged gunfire with Walker.
In addition, appellant's statements after the shooting provided further evidence of his guilt. He lied about how he was shot and provided the police with a fictitious name for Tavares. Implausible explanations to police and attempts to conceal incriminating evidence are probative of knowledge of wrongful conduct. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).
Appellant also had motive to harm Walker. While motive is not itself enough to establish guilt of a crime, it is a significant circumstance indicating guilt. Nisbett v. State, 552 S.W.3d 244, 265 (Tex. Crim. App. 2018). Although the jury chose not to convict appellant of capital murder, the State produced evidence that appellant knew Walker had a large sum of cash at his apartment because Tavares had texted him the photo of cash Walker had sent to her. In addition, Walker was trying to woo appellant's girlfriend. The jury could have concluded that appellant and Tavares planned on robbing Walker but abandoned that plan once gunfire was exchanged and appellant was injured, given they did not take the jewelry and money that were present in the apartment and, thus, decided to convict on the lesser included offense.
When all of this evidence is viewed collectively and in the light most favorable to the verdict, the evidence was more than sufficient to support the verdict. See Jackson, 443 U.S. at 318-19. We overrule appellant's first issue.
II. Jury Instruction
In his second issue, appellant contends the trial court erred by not instructing the jury on concurrent causation.
Concurrent causation is a defensive issue. See Fountain v. State, 401 S.W.3d 344, 358-59 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd). We review a trial court's decision to deny a requested defensive instruction in the light most favorable to the defendant's requested submission. Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006). When a defensive issue is raised by the evidence, regardless of whether the evidence is weak, contradicted, impeached, or not credible, the trial court shall instruct the jury on the issue. Walters v. State, 247 S.W.3d 204, 209 (Tex. Crim. App. 2007). A defendant is only entitled to a jury instruction on concurrent causation when there is some evidence that a concurrent cause was clearly sufficient to produce the result, and the defendant's conduct was clearly insufficient. Remsburg v. State, 219 S.W.3d 541, 545 (Tex. App.—Texarkana 2007, pet. ref'd).
During the charge conference, appellant requested a causation instruction pursuant to rule 6.04 of the penal code urging:
Section 6.04 provides, in relevant part, "[a] person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient." PENAL § 6.04(a).
There was evidence from the firearms expert, Chrisophe, that he tested two bullets that appeared to be either .38 or .357 caliber. He could not say that those bullets were fired from the same gun. The testimony from the medical examiner indicated that the fatal wound was fired from the bullet that was recovered from Mr. Walker. So we believe that that issue as it relates to which bullet caused Mr. Walker's death is sufficient to warrant a jury instruction on that issue.On appeal, appellant claims the firearms expert could not say that the two bullets that struck Walker were fired by the same gun. So, urges appellant, the jury could have determined that more than one person shot at Walker. He then asserts that "[i]t was clear from the descriptions of the injuries associated with each bullet that Walker's death was caused by [the] bullet, [that was identified by the firearm examiner as] item number one . . . that did not come from the submitted pistol," which was Walker's gun. For the reasons set forth below, we disagree with appellant's characterization of the evidence.
Appellant did not assert or present any evidence at trial suggesting Walker shot himself.
While appellant's complaint with respect to the concurrent cause instruction is not entirely clear, we construe his complaint liberally, as we must, to be the evidence established more than one person could have been firing at Walker and someone other than appellant could have fired the fatal shot. For the reasons set forth herein, appellant's contention is not supported by the record, and an instruction concerning same was not warranted.
See TEX. R. APP. P. 38.9.
The firearms expert, Christophe, testified he examined four projectiles, four cartridge cases, and one 9 millimeter caliber pistol. The 9 millimeter pistol was the handgun police recovered from Walker's apartment. The bullet he received from the medical examiner's office and the bullet that was retrieved by the backdoor north wall of Walker's apartment were inconsistent with having been fired from that handgun. Thus, establishing Walker's handgun was not the weapon that fired the fatal shots. The bullets were consistent with having been fired from a .38 or .357 caliber revolver. Because of the damage and deformation of the projectiles, Christophe was unable to determine whether the bullets were fired from the same weapon, but they could have been. There was no evidence affirmatively suggesting that the bullets were fired from different weapons, however.
It appears this bullet inflicted one of the two wounds Walker sustained and it entered and exited his body.
In addition, the medical examiner testified Walker sustained two gunshot wounds. Gunshot wound "number one" had an exit wound associated with it. It entered Walker's chest and fractured a rib, hit his left lung, pericardium (membrane around the heart), heart, diaphragm, and liver and then exited the right lateral abdomen. Because the bullet exited Walker's body, the medical examiner was unable to retrieve it. That bullet was retrieved at the crime scene. Gunshot wound "number two" entered Walker's abdomen and then hit the small intestines three times, his mesentery (connective tissue in the intestines), and then lodged in the paravertebral soft tissue next to the ninth thoracic vertebra. The medical examiner was able to retrieve a bullet from that wound. The firearms expert labeled that bullet "item number one." The medical examiner concluded the cause of death was gunshot wounds of the trunk. The medical examiner did not state that gunshot wound number two alone was the fatal wound.
Consequently, the evidence did not establish the second wound was the one and only fatal wound or that two guns, fired by more than one person, were involved in inflicting the wounds Walker sustained. Accordingly, the trial court did not err in denying appellant's requested instruction. We overrule appellant's second issue.
III. Jury Deliberations
In his third issue, appellant claims the trial court erred in refusing to correctly respond to a jury note.
During the jury's deliberations, it sent out two notes. The first stated:
May we see the specific testimony from [Det. Pfahning] with [appellant's counsel] regarding [Randal] Love? The specific question and answer when [appellant's counsel] asked, "Did you consider [Randal] Love a suspect?" There were a few follow up questions to this initial one we would like to see. Thank you.The trial court responded by informing the jury that it could only have testimony re-read if it specified that jurors were in dispute about a witness's testimony.
Neither the State nor appellant objected to the trial court's response to the jury's first note.
The jury then sent a second note stating:
We are in disagreement about a specific portion of [Det. Pfahning's] testimony. Some jurors recall [Det. Pfahning] stating Randal Love was eliminated as a suspect while some jurors recall Det. [Pfahning] stating Randal Love is a suspect in this case. Our general disagreement related to "was he eliminated" as a suspect. The jurors have a different opinion/memory of Det. [Pfahning's] testimony to [appellant's counsel].In response, the trial court proposed giving the jury the following exchange between appellant's counsel and Detective Pfahning:
Q. Okay. Did you come across a person named Randal Love?Appellant objected and requested that the trial court respond with "there is no testimony from Detective Pfahning that Randal Love was eliminated as a suspect." The trial court denied his request. Appellant then asked the trial court to give the jury a page of the trial transcript that does not reference Love, and testimony that Love had not been injured and had no physical limitation on him being able to take a weapon out of the apartment. The trial court denied that request and gave the jury the testimony it had proposed.
A. Yes, sir.
Q. So when I say the name Randal Love to you, that is not a name that's foreign to you; is that correct?
A. That's correct.
Q. Randal Love was a person you investigated in connection with this case, correct?
A. That's correct.
When the jury asks that certain disputed testimony be re-read, the trial court must first determine if the jury's inquiry is proper under article 36.28 of the code of criminal procedure. CRIM. PROC. art. 36.28. If it is proper, the trial court must then interpret the communication, decide what sections of the testimony will best answer the inquiry, then limit the re-reading accordingly. See Iness v. State, 606 S.W.2d 306, 314 (Tex. Crim. App. 1980). We do not disturb the trial court's decision in this regard unless a clear abuse of discretion and harm is shown. Brown v. State, 870 S.W.2d 53, 55 (Tex. Crim. App. 1994). When a trial court provides a re-reading of testimony, it abuses its discretion by limiting testimony when it excludes testimony that "clearly bore" on the disputed issue identified by the jury. Horton v. State, 530 S.W.3d 717, 722-23 (Tex. App.—Fort Worth 2017, pet. ref'd).
Here, the jury indicated that it was in dispute about whether Love was "eliminated as a suspect." However, Detective Pfahning never testified that he had or had not eliminated Love as a suspect. Neither the State nor appellant elicited this testimony during trial. Thus, the trial court could not provide the jury with testimony that would specifically respond to the jury's inquiry. Nevertheless, appellant suggests that it would have been proper and necessary for the trial court to itself state Love was not eliminated as a suspect. We disagree. Such a comment would invade the province of the jury to determine what the evidence showed. Clark v. State, 878 S.W.2d 224, 226 (Tex. App.—Dallas 1994, no pet.). As to the portion of the testimony the trial court provided in response to the jury's second note, appellant has failed to show that the trial court's response favored one interpretation over the other with respect to whether Love was eliminated as a suspect.
Appellant requested that additional testimony of Detective Pfahning be submitted to the jury, but that requested testimony was not responsive to the jury's request. See Arnold v. State, 234 S.W.3d 664, 677 (Tex. App.—Houston [14th Dist.] 2007, no pet.). That testimony concerned what Detective Pfahning learned about Love during the investigation. It did nothing to aid the jury in resolving the question it posed. Consequently, the requested portion of Pfahning's testimony that the trial court did not include did not clearly bear on the jury's disputed issue. We conclude the trial court did not abuse its discretion in selecting the testimony it gave to the jury in response to its second note. We overrule appellant's third issue.
IV. Evidentiary Rulings
In his fourth and fifth issues, appellant contends the trial court abused its discretion in overruling his objection to a question designed to elicit testimony concerning the location of the shooters. These issues concern the following exchange:
[STATE]: And in your training and experience, just from what you know about what you saw and collected, do you have an idea as to where people were when this was happening?
[DETECTIVE PFAHANING]: Yes, ma'am.
[DEFENSE COUNSEL]: Your Honor, we're going to have to object. That calls for speculation; foundation. We'd like to make a 702 challenge to that issue.
THE COURT: Okay.
[STATE]: Would you like a response, Your Honor?
THE COURT: Yes.
[STATE]: I believe that Detective Pfahning has told the Court all about his training and experience and that he has been with Plano. He's been with CAPERS for approximately ten years. He's been on patrol. He knows and has been involved with these instances before. He has been trained in these instances.
We're not asking him to be a firearms expert. We're asking him in his training and his experience what he was thinking had gone on in that apartment.
THE COURT: Anything further?
[DEFENSE COUNSEL]: Your Honor, we would renew our objection and renew our 702 objection. We don't believe this witness has the proper training to make a speculative determination as to where someone was at a particular time and place. His training—
THE COURT: I don't think that was the question, right?
[DEFENSE COUNSEL]: I believe that was the question.
THE COURT: It wasn't the time and place. It was where in the apartment people were located involved in the shooting, correct?
[STATE]: Yes, You Honor.
[DEFENSE COUNSEL]: Yes, ma'am. That's exactly what we're objecting to.
THE COURT: All right. Then I'm going to overrule the objection.
[THE STATE]: Go ahead, Detective Pfahning.
[DETECTIVE PFAHANING]: It appeared to us that one person was standing in the area of the front door/kitchen area when you first come into the front door to the left. And then another person was standing towards where the bedroom area is because there were bullet holes in the window—patio window as well as that area. And then bullet holes in the wall by the kitchen.
In his fourth issue, appellant contends Detective Pfahning's testimony concerning the location of the shooters should not have been permitted under rule 701. We review a trial court's decision to admit evidence under an abuse of discretion standard. Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010). The trial court abuses its discretion only when the decision lies "outside the zone of reasonable disagreement." Id.
Appellant did not specifically mention rule 701 as a basis for his objection, but he did claim the question called for speculation. Assuming, without deciding, appellant sufficiently preserved his rule 701 complaint by mentioning speculation, rule 701 nevertheless allows lay witnesses to express opinions on their perception where the opinion may be helpful to the jury's understanding the witness's testimony or to determining a fact in issue. TEX. R. EVID. 701. The personal knowledge of the events which form the bases of the witness's opinion may come directly from the witness's perception, or from the witness's experience. Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002). An opinion is rationally based on a witness's perception if the opinion is one that a reasonable person could have drawn under the circumstances. Fairow v. State, 943 S.W.2d 895, 900 (Tex. Crim. App. 1997).
Detective Pfahning personally viewed and processed the crime scene. He was able to observe bullet holes in the walls opposite each other and the location of shell casings and projectiles. His testimony about the general positions of the shooters was admissible under rule 701 because his opinion was based on what he personally observed, and it was helpful to the jury to determine a fact issue. We conclude the trial court did not abuse its discretion by allowing Detective Pfahning to offer lay witness opinion about the likely relative positions of the shooters. See e.g. Kneeland v. State, Nos. 09-15-00198-CR, 09-15-00199-CR, 2017 WL 1535103, at *6 (Tex. App.—Beaumont Apr. 26, 2017, no pet.) (mem. op., not designated for publication) (finding trial court did not abuse its discretion by allowing detective to offer lay witness opinion about the direction of bullets). We overrule appellant's fourth issue. Because Detective Pfahning's testimony was permitted under rule 701, we pretermit consideration of appellant's fifth issue addressing expert witness testimony and rule 702. APP. P. 47.1.
In his sixth issue, appellant claims the trial court abused its discretion in overruling his objection to a question related to the concepts of self-defense and the Castle Doctrine as calling for a legal conclusion. The question was posed during the State's examination of Detective Pfahning. The examination leading up to and following the complained of question is as follows:
The Castle Doctrine 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 Krajcovic v. State, 393 S.W.3d 282, 284 (Tex. Crim. App. 2013) (citing PENAL § 9.32(c)).
Q. Detective, are you familiar with the concepts and— or I'm sorry— with the legal concepts of self-defense?
A. Yes ma'am.
Q. Are you familiar with the legal concept of the Castle Doctrine or the Stand-Your-Ground Doctrine?
A. Yes, ma'am.
Q. If someone is under the legal concept of self-defense, if someone is pointing a gun at you, do you have to wait until they fire to respond?
A. No.
[DEFENSE COUNSEL]: Object, calls for legal conclusion.
THE COURT: I believe these are still within the ones he just stated he was familiar with; is that correct?
[STATE]: I believe so, Your Honor.
THE COURT: Okay. Overruled.
Q. What was the answer?
A. No.
As stated supra, we review a trial court's decision to admit evidence under an abuse of discretion standard. Davis, 329 S.W.3d at 803. The trial court abuses its discretion only when the decision lies "outside the zone of reasonable disagreement." Id.
The State asked Detective Pfahning a mixed question of law and fact. An expert may offer an opinion on a mixed question of law and fact so long as the opinion is confined to the relevant issues and is based on proper legal concepts. Jones v. State, No. 05-08-00925-CR, 2009 WL 3366559, at *3 (Tex. App.—Dallas Oct. 21, 2009, pet. ref'd) (not designated for publication) (citing Anderson v. State, 193 S.W.3d 34, 38 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd)). Appellant's trial theory was that he did not shoot Walker, but whoever did acted in self-defense. Accordingly, appellant placed self-defense and the question of who shot first and why at issue in this case. Prior to asking Detective Pfahning the objected to question, the State established Detective Pfahning had been with the Plano Police Department for more than 17 years, had spent 10 years in the Crimes Against Persons unit, and was familiar with the legal concepts of self-defense and the Castle Doctrine. The objected to question elicited a response that dealt with the application of self-defense and whether certain facts fell within that legal concept. We conclude the objected-to question and Detective Pfahning's response was confined to the relevant issues and was based on proper legal concepts. Consequently, the trial court did not abuse its discretion in overruling appellant's objection. We overrule appellant's sixth issue.
CONCLUSION
We affirm the trial court's judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE DO NOT PUBLISH
TEX. R. APP. P. 47 180739F.U05
JUDGMENT
On Appeal from the 416th Judicial District Court, Collin County, Texas
Trial Court Cause No. 416-80927-2017.
Opinion delivered by Justice Schenck. Justices Osborne and Reichek participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 29th day of May, 2019.