TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00199-CR
Pamela Karen Baize, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 45,628, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING
PER CURIAM
Appellant fatally shot Lewis Dean Young in his Temple residence on May 15, 1995. At a bench trial, appellant pleaded guilty to murder and raised the issue of sudden passion. Tex. Penal Code Ann. § 19.02(d) (West 1994). After hearing evidence, the district court found appellant guilty of a first degree felony and assessed punishment at imprisonment for twenty-five years. In two points of error, appellant contends the district court's conclusion that she did not kill Young under the immediate influence of sudden passion arising from an adequate cause is not supported by the evidence.
Appellant was the only witness to the shooting and the events leading up to it. Appellant was thirty years old at the time of the offense. Young was fifty-seven. They had been friends for some time, and appellant considered Young a "father figure." Two days before the shooting, appellant went to Young's house, which was two blocks from her own residence, to borrow pills for her back pain. (1) Young gave her six "little blue pills" and invited her to stay and watch television. Appellant took all six pills, washing them down with bourbon and Coke. The combination of pills and alcohol apparently caused appellant to pass out, as the next thing she remembered was waking up on Young's couch. Young was gone, and a bottle of whiskey and a $20 bill were on the coffee table. When appellant stood up, semen ran down her leg. She noticed bruises on her arms and body.
Appellant obviously thought that she had been sexually assaulted by Young, although she testified that she did not want to believe it. Appellant watched Young's house during the next two days, waiting for his return. When she saw that Young was at home on the night of the 15th, she returned to her residence, got a loaded shotgun, and drove to Young's house in a borrowed pickup truck. Appellant testified that she armed herself because Young "had a gun and I wanted the truth." Appellant described what happened after she entered Young's house:
A. He saw I had a gun and he asked me what I was doing. I wasn't more than a foot in his front door.
. . .
A. I said, "I came to ask you if you had your way with me. I want the truth."
. . .
A. He said, "Yes, I did and I enjoyed every [expletive] minute of it."
Q. And when he said that what, what did you feel, what did you think?
A. I just pulled the trigger.
Q. What was in your mind?
A. I felt raped and I felt dirty and I felt very, very angry.
Q. What at that point was making you angry?
A. Because he raped me.
Q. And how did you feel about what he had said to you?
A. He didn't care that he had raped me.
Appellant returned to her home and told the persons living with her what she had done. She then went to a motel. One of her friends called the police and reported the shooting. Appellant was arrested at the motel.
Appellant has previous convictions for driving while intoxicated, resisting arrest, and aggravated assault. In the latter case, appellant believed that her former husband was going to send their children to relatives in Germany. To prevent this, she confronted him with a .38 caliber pistol: "He was fixing to flee with them is when I went with my gun to get them back and did so."
Dr. James P. Grigson, a psychiatrist, testified for the defense. Grigson was of the opinion that appellant was "extremely overwhelmingly angry" when she shot Young. Grigson traced this anger back to appellant's childhood, when she and her sisters were sexually assaulted by her father. Echoing appellant's own testimony, Grigson said, "She wanted to go over and confront him and get him to deny it . . . or get him to say yeah, I did do it, but I'm sorry . . . . But with the response that he gave her it was like oh, all of a sudden she saw red, just flashed over her and so she shot him." Grigson acknowledged that his understanding of the relevant facts was based solely on appellant's statements to him.
Temple police officer Paul Posival testified that appellant initially denied shooting Young following her arrest. She also denied being raped by Young. According to the officer, appellant said she got the bruises on her arms during an argument with a friend. Another officer testified that appellant was intoxicated and belligerent when she was arrested, and had slashed her wrists.
Appellant argues that the only evidence before the district court was that she was acting under the immediate influence of sudden passion when the shot Young. "The only evidence is that she went to the deceased to confront him about raping her a day or two previously. The purpose of taking the shotgun was to endeavor to assure that the deceased told her the truth . . . ." Young's response to appellant's inquiry "so enraged appellant that she fired the fatal shot." Appellant asserts that because there is no evidence to contradict her account, the district court had no evidence on which to base its decision that she did not act out of sudden passion. In effect, appellant argues that she proved sudden passion arising from an adequate cause as a matter of law. See W. Wendell Hall, Revisiting Standards of Review in Civil Appeals, 24 St. Mary's L.J. 1045, 1135-36 (1993). Alternatively, appellant argues that the court's conclusion that she did not act under the influence of sudden passion was so against the great weight and preponderance of the evidence as to be manifestly unjust. Meraz v. State, 785 S.W.2d 146, 155 (Tex. Crim. App. 1990); see Hall, supra, at 1138-39.
Appellant's description of the shooting was of necessity uncontradicted because no one else except the victim was present when it occurred. As trier of fact, however, the district court was the judge of the weight and credibility of the witnesses and was free to reject any part or all of the defensive testimony. Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. 1978). The State was not required to introduce affirmative controverting evidence to rebut the defensive theory. Id. Moreover, appellant's testimony was not unimpeached. Appellant acknowledged that she did not report Young's alleged sexual assault to the police. The court could also doubt the credibility of appellant's testimony in light of her record of convictions and her inconsistent statements to the police.
It was the responsibility of the district court, as trier of fact, to decide whether Young's remark to appellant before she shot him was one that would commonly produce a degree of anger or rage in a person of ordinary temper sufficient to render the mind incapable of cool reflection. See Sec. 19.02(a)(1) (defining "adequate cause"). Appellant and Grigson testified that she would not have shot Young if he had denied sexually assaulting her, or even if he had admitted the assault but expressed regret. The district court could rationally conclude that a mind capable of distinguishing between a remorseful and unremorseful admission of guilt was one that was capable of cool reflection, and hence one not under the influence of sudden passion. A rational trier of fact also could believe that appellant's decision to confront Young with a loaded shotgun implied a predisposition to violence and undermined her claim of sudden passion. This is particularly true in light of appellant's previous violent confrontations, including an armed assault against her former husband during a child custody dispute.
We hold that appellant did not prove, as a matter of law, that she shot Young under the immediate influence of sudden passion arising from an adequate cause. Moreover, the district court's decision that appellant did not meet her burden of proof on the sudden passion issue was not against the great weight and preponderance of the evidence. Points of error one and two are overruled.
The judgment of conviction is affirmed.
Before Justices Powers, Jones and B. A. Smith
Affirmed
Filed: August 28, 1996
Do Not Publish
1. Appellant testified that she broke a vertebra in an "accident" involving her former fiance. "He was asking me to leave his home and I told him okay and when I went, I was pushing him out of my way, and that's when he picked me up and flipped me."
Temple police officer Paul Posival testified that appellant initially denied shooting Young following her arrest. She also denied being raped by Young. According to the officer, appellant said she got the bruises on her arms during an argument with a friend. Another officer testified that appellant was intoxicated and belligerent when she was arrested, and had slashed her wrists.
Appellant argues that the only evidence before the district court was that she was acting under the immediate influence of sudden passion when the shot Young. "The only evidence is that she went to the deceased to confront him about raping her a day or two previously. The purpose of taking the shotgun was to endeavor to assure that the deceased told her the truth . . . ." Young's response to appellant's inquiry "so enraged appellant that she fired the fatal shot." Appellant asserts that because there is no evidence to contradict her account, the district court had no evidence on which to base its decision that she did not act out of sudden passion. In effect, appellant argues that she proved sudden passion arising from an adequate cause as a matter of law. See W. Wendell Hall, Revisiting Standards of Review in Civil Appeals, 24 St. Mary's L.J. 1045, 1135-36 (1993). Alternatively, appellant argues that the court's conclusion that she did not act under the influence of sudden passion was so against the great weight and preponderance of the evidence as to be manifestly unjust. Meraz v. State, 785 S.W.2d 146, 155 (Tex. Crim. App. 1990); see Hall, supra, at 1138-39.
Appellant's description of the shooting was of necessity uncontradicted because no one else except the victim was present when it occurred. As trier of fact, however, the district court was the judge of the weight and credibility of the witnesses and was free to reject any part or all of the defensive testimony. Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. 1978). The State was not required to introduce affirmative controverting evidence to rebut the defensive theory. Id. Moreover, appellant's testimony was not unimpeached. Appellant acknowledged that she did not report Young's alleged sexual assault to the police. The court could also doubt the credibility of appellant's testimony in light of her record of convictions and her inconsistent statements to the police.
It was the responsibility of the district court, as trier of fact, to decide whether Young's remark to appellant before she shot him was one that would commonly produce a degree of anger or rage in a person of ordinary temper sufficient to rende