TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-93-00392-CR
Charles Hamilton, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 0926110, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING
A Travis County jury found appellant Charles Hamilton guilty of murder and assessed punishment at ninety years' confinement and a $10,000 fine. See Penal Code, 63d Leg., R.S., ch. 399, sec. 1, § 19.02, 1973 Tex. Gen. Laws 883, 913, amended by Act of May 28, 1973, 63d Leg., R.S., ch. 426, art. 2, § 1, 1973 Tex. Gen. Laws 1122, 1123 (Tex. Penal Code Ann. § 19.02, since amended). Appellant advances six points of error alleging: (1) that the trial court erred in failing to instruct the jury on self-defense and on the lesser included offense of voluntary manslaughter; (2) that his counsel was ineffective because he failed to request these instructions; and (3) that the evidence was insufficient to establish that appellant committed murder and not voluntary manslaughter. We will affirm the conviction.
BACKGROUND
On October 31, 1992, after completing a twenty-four hour shift as a fireman at Bergstrom Air Force Base, appellant consumed considerable amounts of alcohol at various places over the course of the day. Shortly after 6:00 p.m., appellant was driving south on the Interstate 35 service road, apparently on his way home.
Around the same time, Franklin Hamilton (who is unrelated to appellant) was en route to his girlfriend's house along the same southbound stretch of the Interstate 35 service road. Appellant rear-ended Franklin Hamilton's car. Both parties' blood alcohol level was in excess of the legal limit at the time of the accident. Neither party sustained any injury.
The sequence of events immediately following the accident is based primarily on appellant's testimony. The men began exchanging insurance and other information. Appellant testified that Franklin Hamilton threatened to kill him, insulted him, and initiated physical contact by pushing him to the ground. (1) Teddi deClairmont, who drove by the scene shortly after the accident, contradicted this account, saying she observed appellant in a threatening posture and Franklin Hamilton in a defensive position, "holding his hands sort of up to protect himself." She noted that both men seemed angry. Shortly thereafter a fight ensued in which Franklin Hamilton suffered brutal injuries.
As Franklin Hamilton lay unconscious, appellant, covered in blood, ran to the service road to wave down passing cars. Kirk Palermo and Timothy Carr, Sr. pulled over to assist. Believing that Franklin Hamilton was still alive, Palermo left to call for help; Carr remained at the scene. Carr testified that appellant twice returned to the inert victim to continue beating and kicking him. Both times Carr interceded to lead appellant away from Franklin Hamilton's body. Austin police and paramedics eventually arrived. Paramedic Jerry Mayhall testified that Franklin Hamilton was dead at the scene. Franklin Hamilton died as a result of the massive internal injuries inflicted by appellant, any number of which were individually sufficient to cause his death.
DISCUSSION
Voluntary Manslaughter and Self-Defense
In his third point of error, appellant argues that the trial court erred by failing to charge the jury on the lesser included offense of voluntary manslaughter. To be entitled to a charge on a lesser included offense, a defendant must meet a two-part test: the lesser included offense must be within the proof necessary to establish the offense charged, and there must be some evidence in the record that if the defendant is guilty, he is guilty only of the lesser offense. Kinnamon v. State, 791 S.W.2d 84, 96 (Tex. Crim. App. 1990). Voluntary manslaughter is a lesser included offense of murder. Sattiewhite v. State, 786 S.W.2d 271, 287 (Tex. Crim. App. 1989). To meet the second part of the test, appellant must point to some evidence in the record that if guilty, he is guilty only of voluntary manslaughter.
We must first determine whether there is any evidence that appellant "caused the death under the immediate influence of sudden passion arising from an adequate cause." See Penal Code, 63d Leg., R.S., ch. 399, sec. 1, § 19.03, 1973 Tex. Gen. Laws 883, 913, amended by Act of May 28, 1973, 63d Leg., R.S., ch. 426, art. 2, § 1, 1973 Tex. Gen. Laws 1122, 1124 (Tex. Penal Code Ann. § 19.04, since amended) (hereafter "Former Penal Code § 19.04"); Marras v. State, 741 S.W.2d 395, 405 (Tex. Crim. App. 1987). In making this determination, all of the evidence presented by the State and the defendant must be considered. Dowden v. State, 758 S.W.2d 264, 269 (Tex. Crim. App. 1988). The credibility of such evidence, and whether it is controverted or conflicts with other evidence in the case, may not be considered. Moore v. State, 574 S.W.2d 122, 124 (Tex. Crim. App. 1978).
The issue of sudden passion is raised by evidence tending to establish that the defendant "was actually rendered incapable of cool reflection by anger, rage, resentment, or terror." Brunson v. State, 764 S.W.2d 888, 894 (Tex.App.--Austin 1989, pet. ref'd). Adequate cause is raised when the record reflects "some provocation attributable to the deceased which would commonly produce in a person of ordinary temper [anger, rage, resentment or terror] to a degree sufficient to render the mind incapable of cool reflection." Id. at 895.
Timothy Carr testified that while at the scene appellant stated that Franklin Hamilton had insulted him, threatened to harm him and his family, and then attacked him. Teddi deClairmont testified that both men were in a fighting posture when she saw them. Appellant testified that Franklin Hamilton attacked him and threatened to kill him. Appellant further testified that he "freaked out" when the victim attacked him and that his "natural defenses just took over." Carr's testimony also established that appellant was "in shock or nervous or frightened" at the scene. Viewed without regard to credibility, this evidence was sufficient to raise the issue of voluntary manslaughter.
However, appellant did not request an instruction on voluntary manslaughter and did not object to the charge as given. He must now show actual egregious harm from the omission of the issue to obtain relief. See Tex. Code Crim. Proc. Ann. arts. 36.14, .19 (West 1981); Lawrence v. State, 700 S.W.2d 208, 213 (Tex. Crim. App. 1985); Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1984). This harm "must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other information revealed by the record of the trial as a whole." Almanza, 686 S.W.2d at 171. The record clearly establishes that voluntary manslaughter played no part in the strategy of the defense. See Lawrence, 700 S.W.2d at 213 (holding that because voluntary manslaughter was an "incidental theory of the defense," error in the jury charge regarding voluntary manslaughter did not constitute egregious harm). Appellant's defense at trial focused exclusively on the theory that appellant committed either involuntary manslaughter or criminally negligent homicide. Furthermore, the State presented substantial evidence refuting the elements of voluntary manslaughter. In light of these facts, the absence of a voluntary manslaughter charge did not result in actual harm to the appellant so egregious as to deny him a fair and impartial trial. (2) Appellant's third point of error is overruled.
In his fourth point of error, appellant argues that the trial court erred in not instructing the jury on self-defense. Appellant did not request such an instruction at trial, nor did he object to its omission. The jury found that appellant used deadly force in beating the victim with his hands and feet. Section 9.32 of the Texas Penal Code provides that the use of deadly force in self-defense is justified only when three conditions are present: (1) the defendant would have been justified in using force under section 9.31; (3) (2) a reasonable person in the defendant's situation would not have retreated; and (3) the use of deadly force was reasonably believed to be immediately necessary to protect the defendant against another's use or attempted use of unlawful deadly force, or to prevent the imminent commission of specified violent crimes. Tex. Penal Code Ann. § 9.32 (West 1994). (4)
There is no evidence that the victim used or attempted to use deadly force justifying the response of deadly force in self-defense. See Ogas v. State, 655 S.W.2d 322, 324 (Tex.App.--Amarillo 1983, no pet.) (holding that a blow to the face with an open or closed hand does not constitute use or attempted use of deadly force justifying response of deadly force in self-defense). Because the record contains no evidence that the deceased used or attempted to use deadly force, the statutory defense permitted by section 9.32 was not available, and appellant was not entitled to such an instruction. See Werner v. State, 711 S.W.2d 639, 644 (Tex. Crim. App. 1986). Appellant's fourth point of error is overruled.
Ineffective Assistance of Counsel
Appellant advances as his fifth and sixth points of error that he was denied effective assistance of counsel because of his attorney's failure to request instructions on voluntary manslaughter and self-defense. Because the record shows that appellant was not entitled to an instruction on self-defense, his sixth point of error is overruled. Kinnamon v. State, 791 S.W.2d 84, 97 (Tex. Crim. App. 1990).
The standard for reviewing ineffective assistance of counsel as set out in Strickland v. Washington, 466 U.S. 668, 690 (1984), was adopted in Texas in Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). To prevail on this claim, appellant must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Hernandez, 726 S.W.2d at 56-57.
As noted above, appellant's trial strategy relied on the theory that appellant committed either involuntary manslaughter or criminally negligent homicide. Involuntary manslaughter is a lesser included offense of murder, and criminally negligent homicide is a lesser included offense of involuntary manslaughter. Lugo v. State, 667 S.W.2d 144, 147 (Tex. Crim. App. 1984). Involuntary manslaughter and criminally negligent homicide each carry a maximum punishment less than that of voluntary manslaughter. See Tex. Penal Code Ann. §§ 12.21, .33, .34 (West 1994). During voir dire, appellant's counsel questioned the venire regarding voluntary manslaughter, involuntary manslaughter, and criminally negligent homicide. During trial and closing argument, appellant's counsel emphasized appellant's intoxication in support of the latter two theories. This emphasis reflects counsel's considered decision to reject a defensive strategy based on voluntary manslaughter. "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690.
Under these circumstances, trial counsel's decision to pursue the defensive theories of involuntary manslaughter and criminally negligent homicide was not unreasonable. Appellant's counsel could reasonably conclude that arguing in favor of voluntary manslaughter would not be persuasive on these facts and would detract from the credibility of his main defensive theories. Appellant's trial counsel could also reasonably presume that the inclusion of a voluntary manslaughter charge might incline the jury away from finding appellant guilty of the lesser included offenses of involuntary manslaughter or criminally negligent homicide, thus increasing the potential for a longer sentence. Consequently, we cannot say that trial counsel's performance fell below a standard of objective reasonableness. We therefore need not consider the second prong of the Strickland inquiry. Appellant's fifth point of error is overruled.
Sufficiency of the Evidence
If the evidence raises the issue of voluntary manslaughter, the burden shifts to the State to prove beyond a reasonable doubt the absence of sudden passion arising from adequate cause. Former Penal Code § 19.04; Bradley v. State, 688 S.W.2d 847 (Tex. Crim. App. 1985). In his first point of error, appellant asserts that the evidence is insufficient to establish the absence of sudden passion. We review sufficiency of the evidence in light of the charge that was given. See Boozer v. State, 717 S.W.2d 608, 611 (Tex. Crim. App. 1984) ("Because a verdict of 'guilty' necessarily means the jury found evidence of that on which it was authorized to convict, the sufficiency of the evidence is measured by the charge that was given."); see also Fisher v. State, 887 S.W.2d 49, 53 (Tex. Crim. App. 1994) (reaffirming Boozer). However, once the evidence raises sudden passion, its negation becomes an "implied element" of murder. Bradley, 688 S.W.2d at 851.
Because it is not clear whether Boozer applies to this "implied element" of the offense of murder, we will consider appellant's sufficiency of the evidence claims. In reviewing sufficiency of the evidence, this Court must ask whether after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Griffen v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981). (5)
As described above, the issues of adequate cause and sudden passion were raised almost exclusively by appellant's account that the deceased provoked and attacked him. Although his testimony was sufficient to raise the issue of voluntary manslaughter, the State presented more than enough evidence to convict appellant of murder. See Lawrence, 700 S.W.2d at 211. During vigorous cross-examination, the State effectively raised questions concerning the truthfulness of appellant's story and his credibility generally. The State brought forth evidence contradicting appellant's contention that the victim injured him. The State also presented evidence of the victim's peaceable nature to refute appellant's assertion that he was provoked. This evidence provides a basis for a rational trier of fact to reject the assertion that the victim provoked appellant. Furthermore, appellant's attempts to attack the unconscious victim after Carr's arrival on the scene show that appellant was not acting under the immediate influence of sudden passion during these subsequent beatings. We conclude the evidence was legally sufficient to negate the existence of both adequate cause and sudden passion. Appellant's first point of error is overruled.
In a final point of error, appellant argues that in light of the "alternate reasonable hypothesis" that appellant committed voluntary manslaughter rather than murder, the evidence is factually insufficient to negate voluntary manslaughter. "[T]he test for factual insufficiency when an alternate reasonable hypothesis exists is that the verdict should be set aside only if it is so contrary to the overwhelming weight of the evidence, i.e. the alternate reasonable hypothesis, as to be clearly wrong and unjust." Orona v. State, 836 S.W.2d 319, 322 n. 2 (Tex. App.--Austin 1992, no pet.). Although we believe the consideration of alternate reasonable hypotheses has applicability only in circumstantial-evidence cases, appellant's factual-sufficiency challenge fails nonetheless: the "overwhelming weight of the evidence" does not support a finding of voluntary manslaughter, and more than sufficient evidence was adduced at trial to refute this "alternate reasonable hypothesis." Appellant's second point of error is overruled.
Having overruled all of appellant's points of error, we affirm the trial court's judgment of conviction.
Bea Ann Smith, Justice
Before Justices Powers, Aboussie and B. A. Smith
Affirmed
Filed: February 15, 1995
Do Not Publish
1. In its rebuttal, the State presented several witnesses who testified to Franklin
Hamilton's peaceable nature.
2. Appellant advances as an alternative theory under this point of error that the trial
court failed to apply the law to the facts. If this contention were true, appellant would
still be charged with showing the same degree of harm described in Almanza due to his
failure to object to the charge as given. Because he has not demonstrated such harm, we need
not reach the issue.
3. In pertinent part section 9.31 provides: "Except as provided in subsection (b), 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." Tex. Penal Code Ann. § 9.31(a) (West 1994).
4. This offense took place before September 1, 1994, and is governed by the law in
effect at the time the offense was committed. Because the code amendments effective
September 1, 1994 have no substantive effect on these sections, the current code is cited
for the sake of convenience. Penal Code, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen.
Laws 3586, 3598.
5. Appellant urges us to reform the Jackson standard by essentially reweighing the
evidence. This we have steadfastly declined to do; the court does not sit as a thirteenth juror.
Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).