Opinion issued July 22, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00384-CR
MARVIN R. SCHULZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 943823
MEMORANDUM OPINION
A jury convicted appellant Marvin R. Schulz of murder. After finding one enhancement true, the jury assessed punishment at confinement in prison for 50 years. Schulz contends that (1) the trial court erred in not allowing evidence of a victim’s past history of violence, and in failing to include an instruction on self-defense; (2) the evidence is legally insufficient to support transferred intent; and (3) the trial court erred in denying his motion to suppress. We conclude that the trial court did not err, and that legally sufficient evidence supports the verdict. We therefore affirm.
Background
In August 2002, Schulz drove the complainant, Barbara Witte, to her employment at an icehouse. Schulz remained at the bar to drink while Witte served drinks. Clifton Sellers and a man named “Purdy” also were drinking at the icehouse. Sellers and Purdy left the premises after Schulz and Purdy argued. Other icehouse patrons also left, because Schulz was “drunk and mouthing.”
Later that evening, Sellers and Purdy returned to the icehouse. This time, Sellers and Schulz had an argument. It ended when Schulz announced he was going home to retrieve his gun, and drove away. When Schulz returned to the icehouse parking lot, Witte looked outside the icehouse door and said, “No. Go put it up.” Witte also told Sellers to leave. As Sellers walked to the door to leave, Schulz shot him, through Witte, who stood in front of Sellers. Sellers ran to a convenience store across the street and called the police.
Officer B. Davis arrived on the scene and asked Sellers what happened. Sellers replied that, “Marvin shot me through his old lady.” Officer Davis walked into the bar and found Schulz sitting nearby, smoking a cigarette. Officer Davis asked what happened, and Schulz replied, “I did it, sir. I shot her.” Officer Davis took Schulz into custody and recovered a gun from inside Schulz’s truck.
Analysis
Self-Defense
Schulz contends that the trial court erred in not including an instruction on self-defense.
A trial court should charge a jury on any defensive issue raised by the evidence, “regardless of its substantive character.” Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997). Brown states:
A defendant is entitled to an affirmative defensive instruction on every issue raised by the evidence regardless of whether it is strong, feeble, unimpeached, or contradicted, and even if the trial court is of the opinion that the testimony is not entitled to belief. The defendant’s testimony alone may be sufficient to raise a defensive theory requiring a charge.
Id. (quoting Williams v. State, 630 S.W.2d 640, 643 (Tex. Crim. App. 1982)). Accordingly, the trial court should have instructed on self-defense using deadly force if the evidence shows that (1) Schulz used deadly force; (2) he reasonably believed his use of deadly force was immediately necessary to protect himself against a use of deadly force by Sellers; and (3) a reasonable person in Schulz’s position would not have retreated. See Tex. Penal Code Ann. §§ 9.31, 9.32 (Vernon 2003).
A person is justified in using force against another when, and to the degree, he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force. Id. § 9.31. A person is justified in using deadly force against another (1) if he would be justified in using force against the other under section 9.31; (2) if a reasonable person in the actor’s situation would not have retreated; and (3) when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other’s use or attempted use of unlawful deadly force. Id. § 9.32. A “reasonable belief” means a belief that would be held by an ordinary prudent person in the same circumstances as the actor. Id. § 1.07(a)(42) (Vernon Supp. 2004).
Schulz contends that he raised evidence entitling him to a self-defense instruction. We disagree. The record reflects that Sellers became belligerent when Schulz stopped playing pool. Sellers told Schulz that, “I’m going to kick your ass.” After this threat, Schulz left the bar and returned home. Because he had to drive Witte home, he returned to the icehouse, but with a pistol in his truck. Schulz sat down at the bar and continued to drink. Sellers continued making threats. Schulz testified that he stated, “If you don’t leave me alone, I am going to shoot you” or “I am going to go get my pistol or something to that effect.” Because Sellers continued bullying him, Schulz walked out of the icehouse, retrieved his pistol from his truck, and returned to his seat at the bar.
Schulz testified that later in the evening, Sellers grabbed his shoulder from behind him. Schulz stood up from his bar stool, took out his pistol from his back pocket, and fired two shots. Schulz testified that when Sellers grabbed his shoulder from behind, he was afraid for his life, and believed that Sellers could inflict serious bodily injury. He could not see whether Sellers had anything in his hands, so that he had no idea if Sellers carried a beer bottle. Schulz admitted that when he went to retrieve his pistol from the truck, he had the opportunity to leave.
Schulz offered no testimony or evidence that Sellers used or attempted to use deadly force against him at the time he shot Sellers and Witte. Schulz did not see anything in Seller’s hands, and Sellers did not use or attempt to use deadly force. Schulz’s speculation that because he did not know whether Sellers carried a beer bottle in his hand, and thus he might have had one, is not evidence of an attempt or use of deadly force. See Starks v. State, 127 S.W.3d 127, 132–33 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Moreover, Schulz did not present evidence to show that a reasonable person could not have retreated when Sellers allegedly grabbed his shoulder. See Tex. Penal Code. Ann. § 9.32(a)(2). The trial court thus properly denied the request for a self-defense instruction.
Schulz further contends that the trial court erred in not allowing him to present evidence regarding Sellers’s violent history.
Generally, a defendant in a murder prosecution who raises the issue of self-defense may introduce evidence of the victim’s violent character. Tex. R. Evid. 404(a)(2); Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). The defendant may offer opinion or reputation testimony to prove the victim acted in conformity with his violent nature. Tex. R. Evid. 404(a)(2); Torres, 71 S.W.3d at 760. Specific, violent acts of misconduct may be admitted to show the reasonableness of the defendant’s fear of danger or to show that the victim was the first aggressor. Torres, 71 S.W.3d at 760; Mozon v. State, 991 S.W.2d 841, 845–46 (Tex. Crim. App. 1999). Because we have held that the trial court properly denied Schulz’s request for an instruction on self-defense, evidence of Seller’s violent past is not relevant. Torres, 71 S.W.3d at 760–61; Hernandez v. State, 969 S.W.2d 440, 445 (Tex. App.—San Antonio 1998, pet. ref’d). We hold that the trial court did not abuse its discretion in refusing to admit the evidence.
Legal Sufficiency
Schulz contends that the evidence is legally insufficient to show that he caused Witte’s death by way of transferred intent, because Witte’s conduct – jumping in front of Sellers and into the path of the bullet – is an intervening and superseding cause of her death.
In reviewing a legal insufficiency claim, we view the evidence in the light most favorable to the verdict and decide whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).
A person commits the offense of murder when he either (1) intentionally or knowingly causes the death of another; or (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of another. See Tex. Penal Code Ann. § 19.02(b)(1)-(2) (Vernon 2003).
The doctrine of transferred intent is codified in section 6.04(b) of the Texas Penal Code, which provides:
(b) A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that:
(1) a different offense was committed; or
(2) a different person or property was injured, harmed, or otherwise affected.
Tex. Penal Code Ann. § 6.04(b) (Vernon 2003).
The jury charge correctly included a proper instruction on transferred intent. Section 6.04(b) applies to these facts because the State presented evidence that Schulz intended to cause serious bodily injury to Sellers, and as a result, caused Witte’s death. Schulz contends that Witte’s conduct is a superseding cause because she moved in front of the bullet aimed at Sellers. Under the Texas Penal Code, however, Schulz is nevertheless criminally responsible for causing Witte’s death because the statute provides that intent is transferred when another person is injured by the defendant’s act. See id. We therefore conclude that legally sufficient evidence supports Schulz’s conviction through the transferred intent doctrine.
Motion to Suppress
Schulz contends that the trial court abused its discretion in denying his motion to suppress his pretrial confession. We review a trial court’s ruling on a motion to suppress evidence for abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Taylor v. State, 945 S.W.2d 295, 297 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). A confession is admissible if the confession was freely and voluntarily made. Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 1979). In reviewing the voluntariness of a confession on appeal, we defer to the trial court’s determination of historical facts in a suppression hearing. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). Intoxication, although relevant, does not render a confession involuntary per se. Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996). Instead, the question becomes whether the defendant’s intoxication rendered him incapable of making an independent, informed decision to confess. Id.
At a hearing to suppress evidence, the trial court is the sole judge of the weight and credibility of the evidence, and we do not disturb a trial court’s finding on appeal absent an abuse of discretion. Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993). In reviewing a ruling on a question of application of law to facts, we review the evidence in the light most favorable to the trial court’s ruling. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). For Schulz’s confession to be involuntary, we must conclude that he was unable to make an independent, informed choice of free will at the time he made it. See Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996).
The evidence reflects that Officer N. Bozeman met with Schulz around 2:00 a.m. after the shooting. Officer Bozeman testified that, before taking his statement, she read Schulz his constitutional rights. In the course of reading him his rights, Schulz interrupted Bozeman, and stated that “he had already been read his rights out at the scene and that he wanted to waive them.” Officer Bozeman then began recording Schulz’s statement which lasted about an hour. Officer Bozeman smelled alcohol on his breath, but she perceived that he understood the proceedings. She formed her conclusion because Schulz did not slur his words and did not walk with any difficulty. He made perfect sense to Officer Bozeman, and did not make any inappropriate responses to her questions. She testified that Schulz did not appear to be intoxicated at the time he gave his statement, and he could have driven a car.
Officer R. Walker talked with Schulz after he recorded his witness statement. Officer Walker reviewed the statement with Schulz, who was crying and emotional at the time. Officer Walker asked Schulz if he understood his statement and Schulz responded, “yes.” Officer Walker concluded that Schulz was intoxicated based on a very strong odor of alcohol. He agreed with Officer Bozeman that Schulz could walk on his own and did not slur his words. Officer Walker stated, “I firmly believe that he [knew] what was going on. I believe that he knew what he was doing.” Officer B. Davis, who responded to the scene, believed that Schulz understood his questions, but would not have let Schulz drive home. T. Cox testified on behalf of Schulz. She testified that Schulz started drinking alcohol at 4:00 p.m. and continued to drink up until the time she left at 11:00 p.m. She opined that he was “pretty drunk” on the night of the shooting.
The trial court thus heard extensive testimony regarding Schulz’s condition, and whether he understood the content of his statement, including testimony that supports the trial court’s ruling. We defer to the trial court’s determination of these facts, and therefore, we find no abuse of discretion in the finding that Schulz’s confession was voluntary. Accordingly, the trial court properly denied the motion to suppress.
Conclusion
We conclude that the trial court did not err in the admission of evidence or in instructing the jury. We further conclude that legally sufficient evidence supports the jury’s intent finding, as the law transfers the intent to kill one person to another killed as a result of the defendant’s conduct. We therefore affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Bland and Benton.
Do not publish. Tex. R. App. P. 47.2(b).