By guest, Aug 16 2016 01:54PM
This case illustrates once again that charge error, properly preserved, is fertile ground for a reversal. In a memorandum opinion by Justice Lang-Miers issued this week, the Court reversed Appellant's conviction and remanded the case for a new trial. Appellant was indicted for capital murder (committed in the course of a robbery); however, the jury found Appellant guilty of the lesser inclued offense of murder and sentenced him to 80 years in prison. Appellant told police he was buying marijuana when it appeared the seller was pointing a weapon at Appellant and demanding money. Appellant then pulled his gun fatally shooting the seller. Based on these facts, the Defense requested an instruction on self-defense. The State objected and the trial court refused the instruction. See, Lozano v. State, 05-14-00593-CR (Tex.App. - Dallas, May 9, 2016, no pet. h.) (Mem. op.).
In the opinion, the Dallas court found there was evidence in the record to support an instruction for self-defense, Citing Krojcovic v. State, 393 S.W.3d 282, 286 (Tex.Crim.App. 2013), the court states the requested instruction is required "regardless of whether the evidence is weak, strong, unimpeached, or contridicted." The court held that because of trial counsel's proper request, the trial court abused its discretion in denying the instruction. Importantly, the court also held the instruction being properly requested, preserving error, the court of appeals only needed to determine if Lozano suffered "some harm." In reversing the conviction, the Court reasoned that Lozano suffered some harm since the defense did not deny the shooting of the drug dealer during the trial and the only defense of Lozano raised was that of self-defense.
Congrats to Appellant's attorney, Mr. Christian Souza, for a great job by earning a rare defense win in the Dallas Fifth Court of Appeals.