Reece v. State

Full title: STEVIE LABOYD REECE, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Oct 11, 2010

No. 05-09-00392-CR (Tex. App. Oct. 11, 2010)

Opinion

No. 05-09-00392-CR

Opinion Filed October 11, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.2(b)

On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F09-00196-Q.

Before Justices MOSELEY, BRIDGES, and FILLMORE.

MEMORANDUM OPINION

Opinion By Justice MOSELEY.

Stevie Laboyd Reece was indicted for the murder of Kenneth Vanderhoof. The jury convicted him of manslaughter and assessed punishment at 17 years' imprisonment and a $10,000 fine. In a single issue, Reece contends the trial court erred by overruling his objection to the self-defense instruction in the jury charge. By a cross-point in its appeal brief, the State contends the judgment should be reformed to include a deadly-weapon finding. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We modify the trial court's judgment and affirm as modified. Tex. R. App. P. 43.2. Reece was in a vacant apartment with Edward Mullins one night using drugs. Around 4:00 a.m., Vanderhoof knocked on the door of the apartment and Mullins told Reece not to let Vanderhoof enter. Mullins testified that Reece ran out after Vanderhoof and a fight started. Reece testified in his own defense that Vanderhoof "cussed him" and tried to force his way inside. Reece pushed him out, but Vanderhoof punched Reece in the forehead during the struggle. Three or four minutes later, Reece tried to leave the apartment, but Vanderhoof met him outside and began to swing a door mat at him. Reece blocked the blows with his forearms, then pulled his fishing knife and stabbed or cut Vanderhoof in the neck. Vanderhoof collapsed on the stairwell and bled to death. Reece saw Vanderhoof was bleeding. He went back inside the apartment to get some things and then left the area and disposed of the knife. Reece's sole issue argues the trial court erred by not including the statutory language about the duty to retreat in the application paragraph of the manslaughter charge. Reece objected to the charge on this ground. Our first duty in analyzing a jury charge issue is to decide whether error exists. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003); see also Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim App. 2005). If we find error, we apply the appropriate harm analysis depending on whether the error was preserved in the trial court. See Jennings v. State, 302 S.W.3d 306, 311 (Tex. Crim. App. 2010) (all jury-charge errors are cognizable on appeal, but unobjected-to error is reviewed for "egregious harm," while objected-to error is reviewed for "some harm"); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). In determining whether charge error exists, we examine the charge as a whole, considering the relationship between the abstract paragraphs of the charge-the instructions and definitions-and those applying the abstract law to the facts of the case. Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim. App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997). The trial court must fully instruct the jury on the law applicable to the case, and must also apply that law to the facts presented. Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007); Gray v. State, 152 S.W.3d 125, 127 (Tex. Crim. App. 2004). The abstract paragraphs act as a "glossary" to facilitate the jury's understanding of the concepts and terms used in the application paragraphs of the charge and must include those words defined by statute and those which cannot be understood in light of common usage. Plata, 926 S.W.2d at 302. It is unnecessary to repeat every abstract definition in the application paragraph of the jury charge. Holland v. State, 249 S.W.3d 705, 709 (Tex. App.-Beaumont 2008, no pet.). In the abstract paragraph of the charge, the trial court instructed the jury, using the language from section 9.31(e), that a person who has the right to be at the location, who has not provoked the other person, and who is not engaged in criminal activity at the time is not required to retreat before using force against the other person. See Tex. Penal Code Ann. § 9.31(e) (West Supp. 2010). Reece does not complain about the abstract portion of the charge; his only contention is that these statutory elements excusing the duty to retreat should have been repeated in the application paragraph. However, the application paragraph on manslaughter referred back to the abstract portion by stating in part, "and you further find that the defendant at that time was not required to retreat, then you should acquit the defendant on the grounds of self-defense." We conclude the charge as a whole sets forth the law applicable to the case as determined by the allegations in the indictment and evidence presented at trial and contains an application paragraph authorizing a conviction under conditions specified by other paragraphs of the charge to which the application paragraph necessarily and unambiguously refers. See Plata, 926 S.W.2d at 304; Delapaz v. State, 228 S.W.3d 183, 212 (Tex. App.-Dallas 2007, pet. ref'd). We overrule Reece's sole issue on appeal.

State's Cross-Point

The jury made an express deadly weapon finding based on the application paragraph for manslaughter, which included the phrase "by stabbing or cutting the deceased with a knife, a deadly weapon." See LaFleur v. State, 106 S.W.3d 91, 98 n. 39 (Tex. Crim. App. 2003). The trial court's judgment, however, does not include an affirmative deadly weapon finding. By cross-point, the State argues the judgment should be reformed to include an express finding that a deadly weapon was used during the commission of the offense.¹ We have the authority to reform a judgment to include an affirmative finding to make the record speak the truth when the matter has been called to our attention by any source. French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (court of appeals did not err by reforming judgment to add deadly weapon finding when State failed to raise the issue in the trial court or by its own appeal); Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.-Dallas 1991, pet. ref'd). We modify the trial court's judgment to include an express deadly weapon finding. Tex. R. App. P. 43.2. As modified, we affirm the trial court's judgment.