TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00565-CR
Linda Northcutt King, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF CALDWELL COUNTY, 22ND JUDICIAL DISTRICT
NO. 96-170, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING
After finding appellant guilty of the offense of murder, Tex. Penal Code Ann. § 19.02 (West 1994), the jury assessed punishment at confinement for forty-nine years and a fine of $8,000. Appellant asserts four points of error, contending that the trial court erred by: (1) denying appellant's motion for new trial; (2) excluding evidence relative to appellant's mental state prior to the alleged offense; (3) failing to give appellant's requested charge at the punishment phase on whether appellant caused the deceased's death while under the immediate influence of sudden passion arising from adequate cause; and (4) finding the evidence was sufficient to support the conviction. We will overrule appellant's points of error and affirm the judgment of the trial court.
We believe it is a better practice to consider the sufficiency of the evidence to support the conviction at the outset even though appellant designates it as his fourth point of error. In reviewing the legal sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the prosecution, 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 (1979). Under the Jackson standard, the reviewing court is not to position itself as a thirteenth juror in assessing the evidence, nor is it our place to second guess the determination made by the trier of fact. See Collins v. State, 800 S.W.2d 267, 269 (Tex. App.--Houston [14th Dist.] 1990, no pet.). The trier of fact (jury in this cause) is in a better place than an appellate court to weigh, accept, or reject all or any portion of any witness's testimony. It is the duty of this Court to determine if the explicit and implicit findings by the trier of fact are rational under legal standards to support the conviction. See Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992).
The evidence favorable to the jury's verdict shows that during the early morning hours of June 25, 1996, Israel Garcia of the Lockhart Police Department was on patrol when he was dispatched to a residence where police had been unable to get any telephone response. After he knocked several time at the door of the residence, appellant, pale and shaking, opened the door. Appellant had lacerations on both wrists and collapsed shortly after opening the door. When she was asked if she had cut her wrists, appellant indicated an affirmative response. After calling E.M.S., Garcia was able to get a directional gesture toward the end of the hall in response to questions about whether anyone else was in the house. Garcia proceeded to a bedroom where he found the deceased dead in bed. Appellant and the deceased were the only persons in the house.
Dr. Robert Bayardo, Chief Medical Examiner for Travis County, conducted an autopsy that showed six injuries to the deceased's head. Dr. Bayardo opined that the injuries had been inflicted by a blunt instrument that resulted in the skull being "caved in and broken up." The time of death based on the decomposition of the body was placed at three or four days prior to Dr. Bayardo's examination on June 26, 1996.
Officers and paramedics observed blood on the sheets of the bed where the body was found covered with a sheet. Also, high velocity blood droplets were observed on the headboard of the bed and on the wall of the room. Forensic serologist Gustavo De Leon determined by DNA testing that blood stains on appellant's T-shirt had genetic markers consistent with a known sample of the deceased's blood, and not consistent with a known sample of appellant's blood.
The deceased's son, Robert Stuenkel of Carrolton, testified that in June 1995, his father asked him to come to Lockhart to discuss planning a will. When he attempted to discuss the disposition of his father's property, money his father had inherited and the house his father owned, appellant became "very aggressive--she had a common-law status--she was entitled to the same kind of things that a wife would be entitled to as part of the community property." Stuenkel, independent executor of his father's estate, identified pleadings filed by appellant on July 22, 1996, in which she claimed an interest in the deceased's estate that included, in addition to the aforementioned property, life insurance proceeds.
Officer Gerald Clough testified that he questioned appellant after she was released from the hospital. In response to his question about how the deceased's death occurred, appellant responded, "He just wouldn't hush." Clough understood this to mean what appellant had earlier told him about the victim "bringing back things that other people had told him of her or said about her." Appellant had a prior conviction for forgery.
Appellant urges that there was no evidence at trial, either circumstantial or direct, that it was appellant's conscious desire or objective to cause the deceased's death. Intent may be inferred from the circumstances of the conduct. See Perez v. State, 960 S.W.2d 84, 86 (Tex. App.--Austin 1997, no pet.). Contrary, to appellant's argument, the cumulative weight of the circumstantial evidence amply supports a rational trier of facts finding that appellant knowingly or intentionally caused the death of the deceased. Appellant's fourth point of error is overruled.
In her first point of error, appellant contends that the trial court erred in denying her first amended motion for new trial. At trial, appellant testified that she recalled waking up and seeing the deceased lying in bed next to her with a gun in his hand. The basis for appellant's motion for new trial is that while incarcerated in jail on September 24, 1997, she awoke from a nap and, for the first time since the night in question, remembered the events surrounding the death of the deceased. Appellant remembered for the first time that when she got out of bed, she saw the deceased coming toward her with gun in hand and heard a clicking noise. Appellant recalled that at this point she grabbed a skillet and struck the deceased in the head several times, stating, "I had not remembered any of these events until September 24, 1997."
"A new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial." Tex. Code Crim. P. Ann. art. 40.001 (West Supp. 1999). To show that the trial court abused its discretion in not granting a new trial, the record must reflect that (1) the newly discovered evidence was unknown to the movant the time of trial; (2) the movant's failure to discover the evidence was not due to his want of diligence; (3) the evidence was admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the evidence was probably true and would probably bring about a different result in another trial. Moore v. State, 882 S.W.2d 844, 849 (Tex. Crim. App. 1994)
The granting or denying of a motion for new trial lies within the discretion of the trial court. We do not substitute our judgment for that of the trial court, but rather decide whether the trial court's decision was arbitrary or unreasonable. See Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). Motions for new trial based on newly discovered evidence are not favored by the courts and are viewed with great caution. See Drew v. State, 743 S.W.2d 207, 225 (Tex. Crim. App. 1987). Clearly, the trial court is able to determine the credibility of the witness by observation in a way that an appellate court cannot duplicate from a cold record. If the newly discovered evidence is of questionable weight and credibility, and would probably not bring about a different result upon a new trial, the trial court does not abuse its discretion in refusing a new trial. See Jones v. State, 711 S.W.2d 35, 37 (Tex. Crim. App. 1986).
The death of the deceased was discovered on June 25, 1996. Judgment and sentence were entered on August 25, 1997. The amended motion for new trial, alleging newly discovered evidence, was filed on October 1, 1997. Assuming the trial court had jurisdiction of the untimely filed motion for new trial, we are unable to conclude that the trial court's decision was arbitrary or unreasonable. We hold that the trial court did not abuse its discretion in overruling appellant's amended motion for new trial. Appellant's first point of error is overruled.
In her second point of error, appellant urges that the trial court erred in sustaining objections to the testimony of Elva Gonzales, a counselor for battered women, relative to the physical and psychological abuse committed by the deceased, and the testimony of Audra Mills of the Hays-Caldwell Council on Alcohol and Drug Abuse relative to the victim's alcohol problem. Appellant relies on article 38.36(a) of the Texas Code of Criminal Procedure and rule 702 of the Texas Rules of Criminal Evidence. Article 38.36(a) provides:
In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.
Tex. Code Crim. P. Ann. art. 38.36(a) (West Supp. 1998).
Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
Tex. R. Crim. Evid. 702.
Appellant urges that the proffered testimony of Gonzales and Mills would show that appellant had reported physical abuse and threats to her life by the deceased, along with abusive behavior of the deceased, especially when he was drinking. The deceased's reputation for violence and commission of prior specific acts of violence, which are known to the defendant, are probative of whether the defendant reasonably believed the force the defendant used was immediately necessary to protect the defendant. See Thompson v. State, 659 S.W.2d 649, 653 (Tex. Crim. App. 1983). Appellant's state of mind in the instant cause was relevant to the instruction on self defense given by the trial court.
While all the facts and the circumstances surrounding the previous relationship between the accused and the deceased constitute probative evidence on appellant's state of mind, the exception does not extend to hearsay testimony. See Amis v. State, 910 S.W.2d 511, 520 (Tex. App.--Tyler 1995, pet. ref'd). In Navaro v. State, 863 S.W.2d 191 (Tex. App.--Austin 1993, no pet.), the victim's mother testified that the victim told her the defendant put a gun to her head and threatened to kill her. This Court held that this testimony was not admissible to show the state of mind of the deceased. It had no relevance except to prove the truth of the matter stated. Id. at 197. Without reviewing all of the proffered testimony of Gonzales and Mills in the instant cause, we believe the trial court did not err in sustaining the State's hearsay objections to such testimony.
Assuming the trial court erred in excluding portions of the proffered testimony, we must determine whether the resulting harm requires reversal. Appellant's testimony that the deceased was physically and mentally abusive to her, the victim had threatened her life, appellant had attempted to leave the deceased because of abuse of her and her low self-esteem and deceased's history as an alcoholic was supported by numerous witnesses that included a family violence psychologist, appellant's daughter, and appellant's son. While portions of the proffered testimony of Mills and Gonzales were excluded, other portions were admitted relative to appellant being afraid of the deceased, law enforcement's referral of appellant to the Women's Center, appellant's lack of a history of violence and appellant's development of a plan to leave the deceased. Under the circumstances, the excluded portions of the testimony of Gonzales and Mills added little to appellant's defense.
We believe error, if any, falls within the ambit of non-constitutional error. Consequently, reversal is not required unless the error affected substantial rights of the appellant. See Tex. R. App. P. 44.2(b). We hold that substantial rights of appellant were not affected by the exclusion of the proffered evidence. Assuming the higher standard is applicable, we hold beyond a reasonable doubt that the error did not contribute to the conviction or to the punishment. See id. at 44.2(a). (1) Appellant's second point of error is overruled.
In her third point of error, appellant contends the trial court erred in denying appellant's request for an instruction on whether she caused the death of the deceased under the immediate influence of sudden passion arising from an adequate cause. In the event that a defendant makes such proof by a preponderance of the evidence at the punishment stage of the trial, the offense is a felony of the second degree. See Tex. Penal Code Ann. § 19.02(d) (West 1994). "Adequate cause" and "sudden passion" are defined in section 19.02(a) to mean:
(1) "Adequate cause" means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.
(2) "Sudden passion" means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.
Appellant directs our attention to the following evidence in support of her contention that the issue of sudden passion was raised: (1) during the day preceding the night when she awoke to observe appellant asleep with a pistol in his hand, she attempted to leave the house on two occasions to report deceased's conduct to the police only to be grabbed by the deceased and returned to the house; (2) on one of her attempts to leave, the deceased knocked her down causing a knot on her head; (3) on the day in question, she observed the deceased at a table with a gun on it; (4) the victim hollered and waived his arms at her; and (5) the night following these events appellant awoke to see the deceased sleeping with a gun in his hand. At trial, appellant testified that the next thing she remembered was being in the emergency room where the attendants were working on her wrists.
Under cross-examination, appellant stated that the victim was asleep with his face down and his body between her and the pistol in his hand. Appellant agreed that the authorities found the pistol in another room. Appellant stated that when she awoke and "watched him [the deceased] sleep," she did not "want to hit him and hurt him."
The passage of an hour between the provoking events and the homicide has been held to negate the "immediate influence" necessary to show provocative action "at the time of the offense." See Gaston v. State, 930 S.W.2d 222, 226 (Tex. App.--Austin 1996, no pet.). The charge is mandatory only when there is evidence that the defendant acted "under the immediate influence of sudden passion arising from adequate cause." See Hobson v. State, 644 S.W.2d 473, 478 (Tex. Crim. App. 1983). In Hobson, events concerning the defendant's daughter that occurred the morning prior to the homicide did not constitute "some evidence which raised the issue that [the defendant] was acting under such immediate influence." Id. at 478.
Appellant's reliance on Medivil v. State, 812 S.W.2d 629 (Tex. App.--El Paso 1991, no pet.), appears to be based on the defendant's testimony that the events resulting in the victim's death were preceded by periods of "blanking out." While there is this similarity in Medivil and the instant cause, the defendant in Medivil described many of the events at the time of the fatal stabbing: the struggle, sustaining knife wounds inflicted by the victim, holding the victim in a headlock and accompanying bleeding. The court held that the periods of blanking out did not dispense with the necessity of charging on the offense of voluntary manslaughter, stating that the stab wounds to appellant's fingers in the fatal struggle were sufficient in severity to raise the issue of sudden passion arising from adequate cause. Id. at 631. In the instant cause, the provocative events were not shown to have occurred "at the time of the offense." The trial court did not err by refusing appellant's requested instruction. Appellant's third point of error is overruled.
The judgment is affirmed.
Tom G. Davis, Justice
Before Justices Kidd, B. A. Smith and Davis*
Affirmed
Filed: February 19, 1999
Do Not Publish
* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See
Tex. Gov't Code Ann. § 74.003(b) (West 1998).
1. Prior to the effective date of Rule 44.2 on September 1, 1997, reversal was required for
all errors, unless after examining the record, it was determined beyond a reasonable doubt that the
error made no contribution to the conviction or to the punishment. See former Tex. App.
81(b)(2), replaced by Rule 44.2.
house on two occasions to report deceased's conduct to the police only to be grabbed by the deceased and returned to the house; (2) on one of her attempts to leave, the deceased knocked her down causing a knot on her head; (3) on the day in question, she observed the deceased at a table with a gun on it; (4) the victim hollered and waived his arms at her; and (5) the night following these events appellant awoke to see the deceased sleeping with a gun in his hand. At trial, appellant testified that the next thing she remembered was being in the emergency room where the attendants were working on her wrists.
Under cross-examination, appellant stated that the victim was asleep with his face down and his body between her and the pistol in his hand. Appellant agreed that the authorities found the pistol in another room. Appellant stated that when she awoke and "watched him [the deceased] sleep," she did not "want to hit him and hurt him."
The passage of an hour between the provoking events and the homicide has been held to negate the "immediate influence" necessary to show provocative action "at the time of the offense." See Gaston v. State, 930 S.W.2d 222, 226 (Tex. App.--Austin 1996, no pet.). The charge is mandatory only when there is evidence that the defendant acted "under the immediate influence of sudden passion arising from adequate cause." See Hobson v. State, 644 S.W.2d 473, 478 (Tex. Crim. App. 1983). In Hobson, events concerning the defendant's daughter that occurred the morning prior to the homicide did not constitute "some evidence which raised the issue that [the defendant] was acting under such immediate influence." Id. at 478.
Appellant's reliance on Medivil v. State, 812 S.W.2d 629 (Tex. App.--El Paso 1991, no pet.), appears to be based on the defendant's testimony that the events resulting in the victim's death were preceded by periods of "blanking out." While there is this similarity in Medivil and the instant cause, the defendant in Medivil descr