Mervin Richard Haye v. The State of Texas

Case Number: 01-15-01057-CR

Judge: Russell Lloyd

Court: In The Court of Appeals For The First District of Texas

Plaintiff's Attorney:

Heather Hudson  
The Honorable Kim K Ogg
Daniel McCrory

Defendant's Attorney:

Page Janik

Description: During the early morning hours of January 31, 2014, a dispute arose between
appellant and the complainant, David Harriott, at a Jamaican dance hall in Houston,
Texas. Less than an hour later, Harriott was shot dead in the hall’s parking lot.
Andrea Herron, Gillian Bartley, and George Gordon were present when the shooting
occurred and testified at appellant’s trial.1
Herron testified that she saw Harriott and appellant at the Jamaican dance hall
the night of the shooting. At one point in the evening, she saw Harriott leave the club
and walk out into the parking lot, surrounded by a group of people. Although Harriott
appeared to be arguing with someone, Herron could not see who he was arguing
with. Herron followed Harriott into the parking lot and tried to calm him down.
When asked why she followed him into the parking lot, Herron testified, “Because
this is someone that I know.” Herron explained that she had grown up with
Harriott’s mother in Jamaica and she had known Harriott since he was a baby.
At some point during their conversation, Herron saw a gun in Harriott’s hand
and she convinced him to give her his gun. Herron tucked it into the back of her
waistband. Moments later, one of Harriott’s friends removed the gun from Herrron’s
waistband and left. According to Herron, Harriott did not have access to a gun at that
point.
Harriott told Herron that he was “good” and that he needed to get his friend
who was still inside the hall. At that point, Herron and Harriott began walking back
to the club. Herron was walking slightly in front of Harriott when she heard one
gunshot. Herron immediately began running towards the club’s entrance, never
looking back. She later realized that she had been shot in the left arm. Herron did
not see who fired the shot.
Gillian Bartley was also at the dance hall the night of the shooting. Bartley
testified that after an altercation took place in the club, she and a friend followed the
crowd into the parking lot, where Bartley spotted Herron talking to Harriott.
According to Bartley, Harriott appeared mad at first, but he calmed down and stated
that he was “cool” and that he was going to leave. Bartley testified that she saw
Harriott hand his gun to Herron and that Harriott was unarmed from that point
forward. Bartley further testified that when she walked back towards her car to make
a phone call, she saw appellant walk past her in Harriott’s direction, holding a dark
object behind his back. A few seconds later, Bartley heard gunshots. She did not see
who pulled the trigger.


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George Gordon testified that he talked to appellant at the dance hall the night
of the shooting. The two men had known each other since 1988. At one point in the
evening, Gordon came out of the restroom and learned that people were leaving the
party because of a scuffle. When he went outside to the parking lot to investigate,
Gordon saw Herron hugging Harriott and trying to calm Harriott down. Gordon saw
a gun in Herron’s waistband. He also saw a guy named “Marv” remove the gun from
Herron’s waistband and walk away. Gordon testified that Harriott appeared to have
calmed down and he overheard Harriott say that he was ready to go home.
Harriott began walking back towards the dance hall to get his friend. Gordon
testified that he saw Harriott and Herron walking in his direction when he heard a
pop and Harriott fell to the ground. At first, Gordon thought that Harriott had been
pushed, but then Gordon saw appellant with a gun in his hand. Gordon testified that
he watched as appellant walked up to Harriott and shot him while he was lying on
the ground.
Two HPD officers also testified at appellant’s trial. The officer who processed
the crime scene testified that he took numerous photographs, and he recovered three
spent .380 caliber shells at the scene.2 The HPD detective assigned to the case
testified that appellant was arrested approximately seven months later in Atlanta,
2 HPD also recovered a fired bullet of “unknown caliber” at the scene.


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Georgia by U.S. Marshals after Crime Stoppers received a tip that appellant was
living there under a false identity.
The Chief Medical Examiner testified that Harriott sustained gunshot wounds
to his right cheek, left side of his neck, and the left upper part of his chest. She further
testified that the two exit wounds on Harriott’s back were consistent with his having
been shot while he was lying on the ground.
Appellant also testified during the guilt/innocence phase of his trial. Appellant
testified that he was at the dance hall the night of the shooting and that he accidently
bumped into Harriott near the bar around 3:30 a.m. Although appellant apologized,
Harriott became belligerent and pulled a gun on appellant. Appellant testified that
he “was really scared” and felt “threatened” and “intimidated.” At that point,
someone stepped in between appellant and Harriott, and a group of people took
Harriott outside. Appellant testified that he stayed inside the club for another half
hour.
Appellant testified that he was afraid of Harriott because Harriott was a
member of a dangerous “crew by the name of the Shell Down or Shellings Crew.”
Appellant claimed that he wanted to leave the party, but there was only one way out
of the club and he was afraid that Harriott was waiting for him outside the door with
a gun. When he finally decided to leave out the main door, appellant “heard a pop”
and saw Harriott standing a few feet away from him, shooting at him. At that point,


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appellant pulled out the .380 caliber pistol he had brought with him and fired three
shots at Harriott while Harriott was standing up. Appellant claimed that he left the
scene in his car immediately after the shooting because he was outnumbered by
Harriott’s crew. Appellant tossed his gun out his car window on his way home.
Appellant further testified that he left his family in Houston and moved to
Atlanta after the shooting in order to protect himself and his family from “retaliation”
by Harriott’s crew. He denied ever using a false identity.
Sufficiency of the Evidence
Appellant argues that there is insufficient evidence to support his conviction
because a rational trier of fact could not have found against him on the issue of
self-defense, in light of the fact that none of the State’s eyewitnesses were credible.3
A. Standard of Review and Applicable Law
When evaluating the sufficiency of the evidence, we view the evidence in the
light most favorable to the verdict and determine whether any rational trier of fact
could have found the essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Adames v.
State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that Jackson standard
is only standard to use when determining sufficiency of evidence in criminal cases).
3 Because appellant’s sufficiency challenge is a rendition point, we will address it first.


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We must defer to the responsibility of the factfinder to fairly resolve conflicts in the
testimony, to weigh evidence, and to draw reasonable inferences from the facts. See
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Williams v. State, 235 S.W.3d 742, 750
(Tex. Crim. App. 2007). In so doing, we may not reevaluate the weight and
credibility of the record evidence and thereby substitute our own judgment for that
of the factfinder. Williams, 235 S.W.3d at 750. A jury, as the sole judge of witness
credibility, may accept one version of the facts and reject another, and it may reject
any part of a witness’s testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.
Crim. App. 1986); see also Jones v. State, 458 S.W.3d 625, 630 (Tex. App.—
Houston [1st Dist.] 2015, pet. ref’d).
A person commits murder if he intentionally or knowingly causes the death
of another person, or if he intends to cause serious bodily injury and commits an act
clearly dangerous to human life that caused the death of another person. See TEX.
PENAL CODE ANN. § 19.02(b)(1), (2) (West 2015). “[A] person is justified in using
force against another when and to the degree the actor reasonably believes force is
immediately necessary to protect the actor against the other’s use or attempted use
of unlawful force.” Id. § 9.31(a) (West 2015). Deadly force is justified to protect the
actor against another’s use or attempted use of unlawful deadly force or to prevent
another’s imminent commission of murder, kidnapping, sexual assault, or robbery.
Id. § 9.32(a) (West 2015).


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The defendant bears the initial burden to produce evidence supporting a
justification defense, such as self-defense. Zuliani v. State, 97 S.W.3d 589, 594–95
(Tex. Crim. App. 2003). Once the defendant produces some evidence, the State then
bears the burden of persuasion to disprove the raised defense. Id. The burden of
persuasion does not require the State to produce evidence; it requires only that it
prove its case beyond a reasonable doubt. Id.; see also Saxton v. State, 804 S.W.2d
910, 913 (Tex. Crim. App. 1991). In fact, the State is not required to present evidence
refuting a defendant’s claim of self-defense, even if the evidence supporting the
defensive theory is uncontradicted and consistent. See Smith v. State, 355 S.W.3d
138, 144 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Saxton, 804
S.W.2d at 912 nn.3 & 4). Thus, a reviewing court must 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 murder beyond a reasonable
doubt and also would have found against appellant on the self-defense issue beyond
a reasonable doubt. Saxton, 804 S.W.2d at 914. A jury verdict of guilty is an implicit
finding rejecting the defendant’s self-defense theory. Id.
B. Analysis
Appellant argues that the State failed to rebut his assertion of self-defense
beyond a reasonable doubt because none of the State’s witnesses who contradicted
his testimony that Harriott shot at appellant first were credible. Although appellant


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acknowledges the well-established legal principle that that the jury, as factfinder, is
the exclusive judge of the credibility of the witnesses and the weight to be given to
their testimony in criminal cases, he argues that “at some point, the credibility of the
State’s witnesses is such that their testimony simply cannot support a conviction,”
and he urges this court to reverse his conviction on this basis. However, we will not
depart from the precedent of this court and of the Court of Criminal Appeals. See
Adames, 353 S.W.3d at 859 (holding that Jackson standard is only standard to use
when determining sufficiency of evidence in criminal cases); see also Jackson, 443
U.S. at 319, 99 S. Ct. at 2789 (stating that appellate courts must defer to factfinder’s
credibility determinations and weight given to evidence).
Here, the only evidence supporting appellant’s claim of self-defense is
appellant’s own testimony that he shot at Harriott because Harriott shot at him when
he tried to leave the dance hall. The State’s witnesses, Herron, Gordon, and Bentley,
all contradicted appellant’s account and their testimony indicates that Harriott was
unarmed when he was shot by appellant. In particular, Herron testified that Harriott
gave his gun to her before he was shot by appellant and that Harriott did not have
access to a weapon at that time. Herron testified that she tucked the gun in the back
of her waistband. Bartley also testified that she saw Harriott give his gun to Herron.
Gordon testified that he saw the gun tucked into the back of Herron’s waistband
while Herron and Harriott were talking in the parking lot. Under the applicable


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standard of review, the jury may choose to believe or disbelieve any portion of a
witness’ testimony. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Sharp, 707
S.W.2d at 614. It was within the jury’s province to believe Herron, Gordon, and
Bartley’s testimony that Harriott was unarmed when appellant shot him, and
disbelieve appellant’s testimony to the contrary. See Jackson, 443 U.S. at 319, 99 S.
Ct. at 2789; Sharp, 707 S.W.2d at 614.
In addition to the conflicting testimony that, under the applicable standard of
review, the jury was free to resolve against appellant, the physical evidence supports
Gordon’s testimony and contradicts appellant’s claim that he shot Harriott three
times while Harriott was standing up. Specifically, the Chief Medical Examiner
testified that the two exit wounds on Harriott’s back were consistent with his having
been shot while he was lying on the ground. Also, HPD only recovered three spent
.380 caliber shells at the scene. The jury could reasonably infer from appellant’s
testimony that he shot Harriott three times with a .380 caliber pistol, and from the
HPD officer’s testimony that the crime scene unit only recovered three spent .380
caliber shells at the scene, and that appellant fired the only shots. See Jackson, 443
U.S. at 319, 99 S. Ct. at 2789 (noting factfinder’s ability to draw reasonable
inferences from facts).
Finally, the jury was entitled to consider appellant’s actions in fleeing the
scene after the shooting and moving to Atlanta. See Clayton v. State, 235 S.W.3d


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772, 780 (Tex. Crim. App. 2007) (noting “factfinder may draw an inference of guilt
from the circumstance of flight”); Kirk v. State, 421 S.W.3d 772, 781 (Tex. App.—
Fort Worth 2014, pet. ref’d) (referencing flight from scene as evidence that jury
could consider in rejecting self-defense claim).
Viewing the evidence in the light most favorable to the verdict and deferring
to the jury’s credibility determinations, as we must, we hold that a rational factfinder
could have found beyond a reasonable doubt against appellant on the issue of
self-defense. See Saxton, 804 S.W.2d at 914; Williams v. State, 226 S.W.3d 611, 617
(Tex. App.—Houston [1st Dist.] 2007, no pet.). We overrule appellant’s challenge
to the sufficiency of the evidence.
Jury Charge
Appellant argues that the trial court erred by not including an instruction on
the presumption of reasonableness in the jury charge.
A. Standard of Review and Applicable Law
A review of jury-charge error involves a two-step analysis. Ngo v. State, 175
S.W.3d 738, 743–44 (Tex. Crim. App. 2005). First, we must determine whether error
actually exists in the charge, and, second, if error does exist, whether sufficient harm
resulted from the error to require reversal. Id.


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Texas Penal Code sections 9.31(a) and 9.32(b) provide that an actor’s belief
that force, or deadly force, was immediately necessary is presumed to be reasonable
if he:
(1) knew or had reason to believe that the person against whom the force[, or 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
(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.
Id. §§ 9.31(a), 9.32(b). A statutory presumption favoring the defendant “must be
submitted to the jury” “if there is sufficient evidence of the facts that give rise to the
presumption,” “unless the court is satisfied that the evidence as a whole clearly
precludes a finding beyond a reasonable doubt of the presumed fact.” Id.
§ 2.05(b)(1); Morales v. State, 357 S.W.3d 1, 7 (Tex. Crim. App. 2011).
Because appellant objected to the charge error at trial, he is entitled to relief
if the record shows that he suffered “some harm” as a result of the error. Reeves v.


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State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013) (citing Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1985)). This analysis requires a reviewing court
to consider: (1) the jury charge as a whole, (2) the arguments of counsel, (3) the
entirety of the evidence, and (4) other relevant factors present in the record. Reeves,
420 S.W.3d at 816 (citing Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App.
2013)). Under this standard, a defendant is only entitled to relief if the reviewing
court finds that he “suffered some actual, rather than merely theoretical, harm from
the error.” Reeves, 420 S.W.3d at 816 (quoting Warner v. State, 245 S.W.3d 458,
462 (Tex. Crim. App. 2008)).
B. Analysis
Even if the trial court erred by not including an instruction regarding the
presumption of reasonableness in the jury charge, we can only reverse the trial
court’s judgment on this basis if appellant suffered “some harm” as a result of the
error.
With respect to the entirety of the charge, we note that the jury charge given
in this case properly instructed the jury that appellant was justified in using
self-defense if he reasonably believed that deadly force was immediately necessary
to protect himself against Harriott’s use or attempted use of unlawful deadly force.
The charge also included the following instruction regarding the duty to retreat, as
set forth in subsections (c) and (d) of Penal Code section 9.32:


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A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force. You are not to consider whether the defendant failed to retreat.
The charge did not, however, instruct the jury that in certain circumstances it must
presume that appellant had a reasonable belief that deadly force was immediately
necessary. This factor generally weighs in favor of actual harm. See Villarreal v.
State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015) (agreeing with lower appellate
court’s conclusion that jury charge weighed in favor of harm because “[n]othing in
the charge alerted the jury that it must presume [appellant] had a reasonable belief
that the use of deadly force was necessary.”) Neither this court, nor the Court of
Criminal Appeals, has held that a jury instruction on the presumption of
reasonableness is required when properly raised by the evidence. But see Schule v.
State, No. 05-13-01200-CR, 2015 WL 1859040, at *13, 16 (Tex. App.—Dallas Apr.
22, 2015, no pet.) (holding that although “trial court erred by failing to instruct the
jury with regard to the presumption-of-reasonableness instruction,” error “caused no
actual, as opposed to theoretical, harm to Schule”). However, if the jury had been
provided with a “presumption of reasonableness” instruction, the jury would have
been able to conclude that the presumption was inapplicable given the testimony
from the State’s witnesses that Harriott was calm and unarmed when he was shot.
Thus, while this factor generally weighs in favor of harm, the weight of this factor


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is minimal. See Villarreal, 453 S.W.3d at 433 (affording incomplete charge less
weight because complete charge “would have also permitted the jury to conclude
that the presumption was inapplicable based on the facts of this case”).
With respect to the arguments of counsel, we note that the State generally
argued at closing that appellant’s self-defense claim was “bogus,” and that
appellant’s testimony on the issue was not credible. The State argued that appellant
only took the stand and claimed self-defense after hearing the testimony of the
State’s witnesses “because everyone saw where the evidence was going.” Notably,
the State never expressly challenged the reasonableness of appellant’s professed
belief that the use of deadly force was immediately necessary. At most, the State
challenged appellant’s belief that any use of force was necessary, in light of the
testimony that Harriott was calm and unarmed when he was shot.
Defense counsel’s closing arguments also did not focus upon the
reasonableness of appellant’s belief that the use of deadly force was immediately
necessary. The vast majority of defense counsel’s closing argument was dedicated
to attacking the credibility of the State’s witnesses.
Defense counsel also highlighted various deficiencies in the State’s evidence,
such as the absence of the gun that had originally been in Harriott’s possession and
the absence of a gunshot residue test of Harriott’s hands. However, other than a
reference to the lack of evidence showing that appellant provoked the incident or


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that he was involved in any criminal activity, counsel did not advance any arguments
regarding the reasonableness of appellant’s belief that the use of deadly force was
immediately necessary. After briefly noting the lack of evidence showing that
appellant either provoked the incident or was involved in any criminal activity, and
arguing that Harriott, who had threatened appellant with a gun inside the club, was
outside in the parking lot “waiting to ambush” appellant when he left, defense
counsel asked the jury to find that appellant “reasonably believed that at that point
in time he was facing deadly force and he had to protect himself and use deadly
force.” Defense counsel did not, however, advance any arguments regarding the
reasonableness of appellant’s belief that the use of deadly force was immediately
necessary.
Considering that the arguments of counsel did not emphasize the
reasonableness of appellant’s decision to use deadly force, this factor weighs against
a finding of actual harm. See Villarreal, 453 S.W.3d at 441–42 (holding that
counsels’ arguments did not weigh in favor of finding of harm because they did not
center on reasonableness of defendant’s belief that use of deadly force was
immediately necessary).
With regard to the entirety of the evidence, as previously discussed, the
evidence at trial was sufficient to support the conviction that appellant shot an
unarmed and calm Harriott three times in the club’s parking lot.


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After considering the relevant factors, we conclude that appellant did not
suffer any actual, as opposed to theoretical, harm as a result of the error. See Reeves,
420 S.W.3d at 816 (citing Wooten, 400 S.W.3d at 606). We overrule appellant’s first
issue.

Outcome: