Opinion
No. 05-19-00848-CR
08-10-2020
VINCENT TODD LANDERS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 195th Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1875892-N
MEMORANDUM OPINION
Before Chief Justice Burns and Justices Pedersen, III, and Evans
Opinion by Justice Evans
The Honorable David L. Bridges, Justice, participated in the submission of this case, however, he did not participate in the issuance of this opinion due to his death on July 25, 2020. Chief Justice Robert Burns has substituted in for Justice Bridges and has reviewed the briefs and the record before the Court.
Appellant Vincent Todd Landers appeals from the judgment adjudicating him guilty of murder. In three issues appellant asserts: (1) the evidence was insufficient to support the trial court's conviction because appellant was justified in resorting to self-defense; (2) the trial court erred by failing to afford appellant his right to allocution; and (3) the trial court imposed a grossly disproportionate punishment and violated appellant's right under the Eighth Amendment's prohibition of cruel and unusual punishment. We affirm the trial court's judgment.
BACKGROUND
On Saturday, June 23, 2018, C. Ferguson, an officer with the Dallas police department, responded to a call at approximately 6:00 a.m. regarding a possible robbery and a man was bleeding from the head after being hit with a two-by-four. Ferguson was the first to arrive on the scene and testified that he saw a black man slumped over at a bus stop in downtown Dallas who appeared to be unconscious with a large pool of blood under him.
Rebecca Weddle, a trauma surgeon at Baylor Hospital, examined complainant at the hospital. When the paramedics picked him up, complainant had no pulse so he was receiving CPR when he arrived at the hospital. Although Dr. Weddle was able to restart his heart, she testified that complainant exhibited symptoms of "brain death." Dr. Weddle sent complainant to get scans and the head CT confirmed he had a "severe traumatic brain injury. He had diffuse subbrachial hemorrhage, as well as multiple other contusive injuries, and he had skull fractures in multiple places." Dr. Weddle also testified that complainant's brain was not getting enough oxygen and these type of cases often progress to brain death. Dr. Weddle stated that blunt force trauma caused complainant's injuries and complainant died on June 26, 2018. In addition to Dr. Weddle, Jill Urban, a forensic pathologist, performed complainant's autopsy and testified that the manner of death was homicide due to blunt force trauma to the head.
Jonathan Wright testified he was a member of the homeless community and lived in downtown Dallas. Wright testified that at 5:50 a.m. on the morning of the incident, he had just gotten off a bus and was walking down Commerce Street. He saw a black man sitting at a bus stop who appeared to be asleep. Wright also testified that the sleeping man had nothing in his hands. Wright saw another black man swing a wooden "fence post" at the sleeping man's head numerous times. Wright testified that the man with the fence post "looks over at the younger man [who was also sitting at the bus stop] and he says, You didn't see anything, and the reason I did that was because he took my money. And he walked away." Wright testified that he spoke to 911 on a person's phone who had arrived at the bus stop but left on a bus before the police arrived. Wright testified that he did not feel comfortable picking appellant out of a lineup.
Bradley Eakin testified that he was panhandling from 4:00 a.m. until 7:00 a.m. at the 7-Eleven near the bus stop on Commerce Street on the day of the incident. He knew appellant as well as the complainant. Eakin saw appellant carrying a knife in one hand and a "metal garden t-post" in the other. Appellant told Eakin he was looking for complainant that morning. Appellant testified that complainant and appellant "were constantly at heads, verbally."
Derek Krohn, a construction foreman, testified that he was on his way to a job site downtown and stopped at a light on Pearl and Commerce. Krohn testified he saw someone run over towards the bus stop. Krohn stated "somebody ran out in front of me right when the light turned green. He was carrying a pole and stuff and took off running across the street." Krohn testified the person was a black man without a shirt and he was carrying a "two-by-four or a pole" and two plastic sacks and he saw the person "beating on a building or beating on, you know -- beating on something in the area." After the person ran out in front of him, Krohn turned and saw a person sitting at the bus stop and saw the other person run in the direction of the 7-Eleven.
Steven David, a former homicide detective with the Dallas police department, testified that he heard that complainant chased appellant with a knife. This altercation allegedly took place several hours or possibly a day prior to the incident on June 23, 2018. David described the video from 7-Eleven after the incident which showed appellant carrying "two white bags and what appeared to be a two-by-four." There is no video showing the actual murder. The State then had the following exchange with David:
Q: In your experience, if someone has an altercation at time -- a day earlier, or the night before, and then there's nothing for an extended period of time and then someone comes back to that person and attacks them, is that self-defense?
A: No.
Q: Can you explain why not?
A: Well, there's no threat anymore, at that time. I mean, once -- yeah, at the time -- if the defendant pulled a knife on him at the time, at that time, did he -- defended himself, that's self-defense. However, once they separated, which they did, and [complainant] left the scene and walked multiple blocks away, the defendant continued to look for him. And, basically, hunted him down till he found him at the bus stop and did what he did.
Q: Okay. So it sounds like it's more like retaliation?
A: Yes.
Shelton Russell, a pastor at OurCalling, testified that he knew appellant and complainant. On the day of the incident, appellant went to OurCalling and told Russell that complainant had robbed him that night. Russell testified appellant told him "I got him, first of all. Then [appellant] said, I don't know if [complainant's] dead or alive."
Appellant testified that he was sleeping at a bus stop on the night of June 22, 2018 when the complainant approached him with a knife and appellant took off running and left his suitcase with all his belongings in it. At some point, complainant stopped chasing appellant and appellant feared that complainant was going to steal his suitcase. Appellant looked around for something to defend himself and found an "iron" or a "fence rail thing" but the complainant was gone. Appellant ran into Eakin when he was carrying the metal pole and asked if he had seen complainant. Appellant lost the pole but ran into complainant again and this time complainant swung what appeared to be a rock in a sock at appellant. After this incident, appellant went toward Canton Street and then to the Baylor Station and noted that he did not have shoes or a shirt so there were not many places he could go. Appellant laid down at the DART station until the trains started running. Appellant picked up a stick a few blocks from the bus stop and saw complainant sitting at the bus stop. Appellant clarified that the weapon was a "campaign sign," a sign that you put in the ground but without the poster part attached. Appellant testified that complainant "had the audacity to be, you know, waiting on me. Literally, where I slept at" after accosting him with a knife. Appellant testified that he struck complainant because he panicked when complainant saw him and he thought complainant was "fixing to get up." Appellant stated that he hit him twice in the head and saw blood gushing. Appellant then testified that he started walking toward 7-Eleven.
Following the trial, the jury found appellant guilty of murder as charged in the indictment. At the punishment hearing, the State read the enhancement paragraphs (felony offense of burglary of a building and felony offense of aggravated sexual abuse with a deadly weapon) into the record. In addition, the State introduced evidence of appellant's criminal history including convictions for aggravated sexual abuse, aggravated assault, retaliation and burglary of a building. The trial court found the enhancement paragraphs true and sentenced appellant to forty-five years' confinement in the Texas Department of Criminal Justice.
ANALYSIS
A. Sufficiency of Evidence and Self-Defense
Appellant claims the jury's verdict is unsupported by the evidence and that the State failed to disprove that he acted in self-defense. We disagree.
1) Standard of Review
When reviewing whether there is legally sufficient evidence to support a criminal conviction, the standard of review we apply is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard tasks the factfinder with resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic facts. Id. On appeal, reviewing courts determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Id.
When evaluating a claim of insufficient evidence in the context of a self-defense issue, we apply the general sufficiency review principles set forth above with sufficiency principles specific to self-defense. Gilbert v. State, 575 S.W.3d 848, 862 (Tex. App.—Texarkana 2019, pet. ref'd). When there is a claim of self-defense or defense, the defendant bears the burden to produce evidence supporting the defense while the State bears the burden of persuasion to disprove the raised issues. Id. The defendant must produce some evidence that would support a rational finding in his favor on the defensive issue. Id. As with the general sufficiency principles, the trier of fact is the sole judge of the credibility of defensive evidence, and is free to accept it or reject it. Id.
2) Murder
A person commits murder if he: (1) intentionally or knowingly causes the death of an individual; or (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. TEX. PENAL CODE § 19.02(b)(1), (2). In this case, several witnesses, including appellant, testified that they saw appellant strike complainant numerous times with a wooden post or stake. Wright saw a black man swing a wooden "fence post" at the sleeping black man's head numerous times. Krohn stated "somebody ran out in front of me right when the light turned green. He was carrying a pole and stuff and took off running across the street." Krohn testified the person was a black man without a shirt and he was carrying a "two-by-four or a pole" and two plastic sacks and he saw the person "beating on a building or beating on, you know -- beating on something in the area." Appellant himself testified that he hit complainant twice in the head and saw blood gushing.
3) Self-Defense
Appellant argues that he acted reasonably in determining that it was necessary to defend himself based on the events on June 22 and 23, 2018, and the evidence was insufficient to support his conviction. Pursuant to the penal code, 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. See TEX. PENAL CODE § 9.31(a). A person is justified in using deadly force against another if the actor would be justified in using force against the other under Section 9.31 and when and to the degree the actor reasonably believes the deadly force is immediately necessary. See TEX. PENAL CODE § 9.32(a).
Section 9.31 of the Texas Penal Code provides as follows:
The actor's belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the 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
(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.
As stated above, the evidence demonstrates that appellant initiated the attack when he struck complainant in the head with a wooden stake and caused his death. There is no evidence that complainant threatened or provoked appellant prior to appellant striking him. To the contrary, Wright's testimony states that he saw a black man—with nothing in his hands—asleep at a bus stop prior to the attack. Self-defense is generally not raised at trial when the evidence "raises no issue as to any attack or apparent attack upon the person of the appellant by the deceased nor does it raise any reasonable expectation or fear of such an attack." See Cerda v. State, 557 S.W.2d 954, 958 (Tex. Crim. App. 1996).
Further, the evidence also provides that appellant acted not out of fear but out of anger. Wright testified that after the attack, the man with the fence post "look[ed] over at the younger man [who was also sitting at the bus stop] and he says, You didn't see anything, and the reason I did that was because he took my money. And he walked away." Eakin testified that complainant and appellant "were constantly at heads, verbally." Eakin further testified that on the morning of the incident, Eakin saw appellant carrying a knife in one hand and a "metal garden t-post" in the other and appellant was looking for complainant. In addition, appellant went to OurCalling later in the morning on June 23, 2018 and told Russell that complainant had robbed him that night. Russell testified appellant told him "I got him, first of all. Then [appellant] said, I don't know if [complainant's] dead or alive." Appellant himself testified that complainant "had the audacity to be, you know, waiting on me. Literally, where I slept at" after accosting him with a knife. Appellant also testified that he armed himself before he went looking for complainant. Here, the evidence established that it was appellant, not complainant, who was the aggressor.
Further, appellant's own testimony does not support a justification in using deadly force against complainant. Appellant argues that his actions were justified in light of all of complainant's "aggressive conduct toward Appellant" including complainant chasing appellant while armed with a knife and taunting appellant. However, complainant's prior conduct is insufficient to give rise to a right to self-defense without evidence of any overt act or words that would the defendant to reasonably believe he was in immediate danger. See Preston v. State, 756 S.W.2d 22, 25 (Tex. App.—Houston [14th Dist.] 1988, pet ref'd) ("If the accused, by his own testimony or by other evidence, raises the issue of self-defense, he is entitled to an instruction and charge so long as such evidence shows the complainant, by words or acts, caused the accused to reasonably believe he was in danger and to reasonably believe deadly force was immediately necessary. The mere fact that the accused "believed" the complainant might in some manner attack the accused, without evidence of any overt act or words that would lead the accused to reasonably believe he was in danger, is insufficient to give rise to a right to an instruction and charge on self-defense.").
Here, the jury rejected appellant's claim of self-defense. The State presented legally sufficient evidence to support appellant's conviction for murder and we overrule appellant's first issue.
B. Allocution
The Texas Legislature codified a statutory version of the right of allocution. See TEX. CRIM. CODE. PROC. art. 42.07; Decker v. State, No. 05-18-01259-CR, 2020 WL 614100, at *4 (Tex. App.—Dallas Feb. 10, 2020, no pet.) (mem. op., not designated for publication). The Texas Code of Criminal Procedure requires that "[b]efore pronouncing sentence, the defendant shall be asked whether he has anything to say why the sentence should not be pronounced against him." See TEX. CRIM. CODE. PROC. art. 42.07. In accordance with this requirement, the trial court asked "[a]t this time is there any legal reason sentence should not now be imposed, Counsel?" Appellant's counsel replied, "No, Judge." Despite this exchange, appellant asserts the trial court violated his common law right to allocution and he should receive a new punishment hearing because the trial court pronounced sentence without asking appellant whether he had anything to say in mitigation. "However, to complain on appeal of the denial of the right of allocution, whether statutory or one claimed under the common law, controlling precedent requires that a defendant must timely object." See Decker v. State, 2020 WL 614100, at *5; see also Hall v. State, Nos. 05-18-00442-CR and 05-18-00443-CR, 2019 WL 3955772, at *1 (Tex. App.—Dallas Aug. 22, 2019, pet. ref'd) (mem. op., not designated for publication); Gallegos-Perez v. State, No. 05-16-00015-CR, 2016 WL 6519113, at *2 (Tex. App.—Dallas Nov. 1, 2016, no pet.) (mem. op., not designated for publication) (citing Tenon v. State, 563 S.W.2d 622, 623 (Tex. Crim. App. [Panel Op.] 1978) (panel op.). Appellant did not. Although appellant did raise this issue in his motion for new trial, the Texas Court of Criminal Appeals has held that "an appellant may raise a sentencing issue in a motion for new trial for the first time only if the appellant did not have the opportunity to object in the punishment hearing." Burt v. State, 396 S.W.3d 574, 577 n.4 (Tex. Crim. App. 2013). In this case, appellant had the opportunity to object at the punishment hearing. Accordingly, we overrule his second issue.
C. Cruel and Unusual Punishment
Appellant asserts his forty-five year sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment. We disagree.
Here, appellant was charged with murder, a first-degree felony. See TEX. PENAL CODE § 19.02(c). Generally, punishment assessed within the statutory range is not unconstitutionally cruel and unusual. Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.); Ajisebutu v. State, 236 S.W.3d 309, 314 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) ("Generally, a sentence within the statutory range of punishment for an offense will not be held cruel or unusual under the Constitution of either Texas or the United States."). An individual adjudged guilty of a felony of the first degree shall be punished by imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than ninety-nine years or less than five years. TEX. PENAL CODE § 12.32(a). Further, the two enhancement paragraphs, alleged by the State and found true by the trial court, alleged prior felony convictions which increased the minimum term of confinement from five years to twenty-five years. See id. at § 12.42(d). So, the sentencing range for appellant's crime was twenty-five years to ninety-nine years. Id.
Although appellant's sentence was well within the statutory range, he argues that the "sentence is a grossly disproportionate punishment." In regard to the concept of gross disproportionality, the Texas Court of Criminal Appeals has instructed as follows:
An allegation of disproportionate punishment is a valid legal claim. The concept of proportionality is embodied in the Constitution's ban on cruel and unusual punishment and requires that punishment be graduated and proportioned to the offense. But, this is a narrow principle that does not require strict proportionality between the crime and the sentence. Rather, it forbids only extreme sentences that are "grossly disproportionate" to the crime. While the United States Supreme Court has acknowledged the lack of clarity in its precedent regarding what factors may indicate gross disproportionality, it has nevertheless emphasized that a sentence is grossly disproportionate to the crime only in the exceedingly rare or extreme case. Moreover, this Court has traditionally held that punishment assessed within the statutory limits, including punishment enhanced pursuant to a habitual-offender statute, is not excessive, cruel, or unusual.State v. Simpson, 488 S.W.3d 318, 322-23 (Tex. Crim. App. 2016) (internal citations omitted). To determine whether a sentence for a term of years is grossly disproportionate for a particular defendant's crime, a court must judge the severity of the sentence in light of the harm caused or threatened to the victim, the culpability of the offender, and the offender's prior adjudicated and unadjudicated offenses. Id. at 323. In the rare case in which this threshold comparison leads to an inference of gross disproportionality, the court should then compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. Id.
Here, Appellant's sentence is in the middle of the statutory range and he does not direct us to evidence or similar cases for comparative evaluation. Further, we note that the record summarized above identifies the harm inflicted on complainant, appellant's criminal history, and appellant's prior convictions support the length of his sentence. Thus, we cannot conclude that appellant's sentence is grossly disproportionate to his crime. For all of these reasons, we overrule appellant's third issue.
CONCLUSION
We resolve appellant's issues against him and affirm the trial court's judgment.
/David Evans/
DAVID EVANS
JUSTICE Do Not Publish
TEX. R. APP. P. 47
190848F.U05
JUDGMENT
On Appeal from the 195th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1875892-N.
Opinion delivered by Justice Evans. Chief Justice Burns and Justice Pedersen, III participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered August 10, 2020.