NO. 07-07-0065-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 12, 2008
______________________________
ELIZABETH HILL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 403RD DISTRICT COURT OF TRAVIS COUNTY;
NO. D-1-DC-05-300771; HON. BRENDA KENNEDY, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Elizabeth Hill was convicted of murder and sentenced to thirty years in prison. She
appeals that conviction in four issues by 1) attacking the legal and factual sufficiency of the
evidence, 2) challenging the court’s failure to instruct the jury that a negative finding on
sudden passion must be unanimous, and 3) attacking the sufficiency of the evidence to
prove sudden passion. We affirm.
Issues 1 and 2 - Legal and Factual Sufficiency
The standards by which we review legal and factual sufficiency are well established.
We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979) and Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006) for explanation of
them.
The evidence at trial was uncontested that Hill shot and killed her husband Joseph
Lucas. She contended she did so, however, in self defense and as a result of an abusive
relationship. Hill argues that the evidence was sufficient to establish that defense. When
a defendant challenges the legal sufficiency of the evidence supporting the factfinder’s
rejection of self defense in a murder case, we do not look to whether the State presented
evidence that refuted the theory of self defense but instead determine whether any rational
trier of fact would have found the essential elements of murder beyond a reasonable doubt
and would have also found against the defendant on the issue of self defense beyond a
reasonable doubt. Miller v. State, 177 S.W.3d 177, 183 (Tex. App.–Houston [1st Dist.
2005, pet. ref’d). Furthermore, at the time of trial, a person could use deadly force in her
own defense to the degree she reasonably believed the force was immediately necessary
to protect herself against the other’s use or attempted use of unlawful force and if a
reasonable person in the actor’s situation would not have retreated. TEX . PEN . CODE ANN .
§9.32(a) (Vernon 2003).
The record shows that 1) appellant was perceived by persons who knew the couple
to have the stronger personality, 2) appellant was very angry over Joseph having
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disciplined their son in an inappropriate manner1 and requested that he move out, 3) she
gave opposite stories to persons about whether the marriage was over or could be saved
after a joint counseling session, 4) during that counseling session, the counselor did not
perceive appellant to feel personally threatened by Joseph but found her to be concerned
that Joseph not take any of her personal belongings, 5) appellant called Joseph abusive
names during the counseling session but Joseph did not reciprocate and took responsibility
for his inappropriate behavior with his son, 6) although appellant testified she was afraid
of Joseph and asked a neighbor to be at the house when Joseph came to collect his
personal belongings, the neighbor never heard any arguments or raised voices while
appellant and Joseph were downstairs discussing finances and perceived the couple to be
friendly, 7) although appellant testified she was afraid of Joseph, she agreed to accompany
him alone upstairs to collect his belongings without asking the neighbor to accompany
them, 8) about 20 or 30 seconds after appellant and Joseph went upstairs, appellant began
screaming that Joseph should let go of her but the neighbor never heard sounds of a
struggle or Joseph say anything, 9) appellant continued to scream for several minutes, but
the neighbor never heard any sounds from Joseph until he heard an “ugh,” 10) four shots
were fired into Joseph with two of them having a trajectory sharply downward, 11) forensic
evidence showed the first two shots were probably in the face and the hand which then
penetrated into Joseph’s chest causing him to fall and the last two shots were fired into his
shoulder and head, 12) any of the four shots could ultimately have been fatal, 13) there
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The six-year-old child had body slam m ed the two-year-old child to the ground. Joseph then did the
sam e to the six-year-old to show him how it felt. A police officer investigated and found two bruises on the
child. He was also seen by a doctor and found to have no serious injury. Appellant denied to the responding
police officer that she was in an assaultive relationship with Joseph.
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were no obvious signs of a struggle in the couple’s bedroom or closet where Joseph was
found, 14) the blood spatter was found no higher than four feet above the ground and
blood spatter was consistent with Joseph being no higher than one and one-half to two feet
from the floor when he was shot in the head, 15) no blood was found outside of the closet,
16) appellant never saw a weapon on Joseph that night and appellant had never known
him to carry or own a weapon, 17) appellant had been a Travis County jailer and had
firearm training, 18) appellant had no visible blood, red marks, bruises, or scratches on her
after the murder, 19) a fellow prisoner stated that appellant told her she had antagonized
Joseph into attacking her and then shot him, 20) the detective questioning appellant
believed that her tears were forced since she tended to look at him for his reaction, 21)
appellant expressed no remorse to investigating officers over the death of her husband,
22) appellant informed her cell mate that she was “trying to save her house through the
insurance on the husband,” and 23) appellant had previously disclosed to an officer that
she was not in an abusive relationship with her husband. The foregoing is some evidence
upon which a rational jury could conclude, beyond reasonable doubt, that appellant
murdered her husband and did not act in self-defense.
Admittedly, there had been an incident that appellant reported to police in 1997
when Joseph had allegedly pushed appellant into the bed causing her to fall to the floor
and bruise herself. There was also expert testimony that appellant fell within the pattern
of an abused wife in spite of her outwardly stronger personality. Appellant herself
explained that she was so afraid of Joseph after she asked him to move out that she slept
with a gun under her pillow. During the incident, she averred that Joseph had pulled her
into the closet and locked her in a bear hug with his hand over her mouth while screaming
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and threatening to kill her and their sons. She further stated that she kneed him in the
groin and, after he grabbed her leg, she reached for her gun in a shoe case (which she had
just placed in that location that morning) and shot Joseph twice. Two more shots were
fired inadvertently, according to her, after she fell in the outer closet and Joseph lunged at
her. Yet, this testimony and other of its ilk simply raised issues of credibility. And,
selecting the witness and testimony to believe falls within the bailiwick of the jury. For
instance, it was up to that body to decide whether appellant spoke truthfully when she
alleged that the decedent grabbed and screamed at her; again, the neighbor testified that
he heard no noises coming from Joseph except a final grunt.
So, based on the entire record before us, we cannot say that the jury’s verdict is
supported by weak evidence or so against the great weight of the evidence as to
undermine our confidence in the outcome. Simply put, the evidence is both legally and
factually sufficient to uphold the verdict, and issues one and two are overruled.
Issue 3 - Charge Error
Appellant next complains of the trial court’s failure to make clear to the jury in the
charge on punishment that a finding either for or against sudden passion must be
unanimous per Sanchez v. State, 23 S.W.3d 30, 34 (Tex. Crim. App. 2000). We overrule
the issue.
Here, the trial court instructed the jury, via separate paragraphs, about its need to
decide whether or not appellant acted under sudden passion. So too did it inform the jury
of the range of punishment applicable in either situation. It subsequently closed its
instructions by telling the jurors that “[y]our verdict must each be unanimous.” (Emphasis
added). After deliberating, the jury returned one form addressing the matter of sudden
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passion and another setting punishment. Under these circumstances, we conclude that
the trial court fulfilled its obligation in question through informing the jury that each verdict
must be unanimous. See Cartier v. State, 58 S.W.3d 756, 760 (Tex. App.–Amarillo 2001,
pet. ref’d) (finding the general instruction that the verdict must be unanimous sufficient to
instruct the jury that its finding on sudden passion must be unanimous).
Issue 4 - Evidence to Support Sudden Passion
Finally, appellant argues that the jury finding against sudden passion was in error.
It is not clear whether appellant is challenging the legal or factual sufficiency of the
evidence or both of them. However, appellant does not prevail under either one, and we
overrule the issue.
Sudden passion is passion directly caused by and arising out of provocation by the
individual killed which passion arises at the time of the offense and is not solely the result
of former provocation. TEX . PEN . CODE ANN . §19.02(a)(2) (Vernon 2003). Next, adequate
cause is 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. Id. §19.02(a)(1).
Evidence appears of record that, if believed, could support a finding of sudden
passion. Yet, the very same evidence depicting that appellant did not act in self-defense
also constitutes some evidence that she acted from cool reflection or otherwise planned
the murder. Again, there were no signs of a struggle in the bedroom or closet or on
appellant. Moreover, the only surviving witness at the scene, other than appellant, heard
no screams or threats purportedly uttered by Joseph, only those of appellant. This and
other matter of record tended to contradict appellant’s version of events.
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As already stated, the jury was free to disbelieve appellant’s story. Even if Joseph
had been abusive to appellant in the past, it had before it some evidence upon which it
could decide, beyond reasonable doubt, that appellant’s actions did not result directly from
or arise out of provocation at the time of the offense. And, we cannot say that the evidence
supporting such a decision was weak or overwhelmed by contrary evidence.
Having overruled all of appellant’s issues, we affirm the judgment of the trial court.
Per Curiam
Do not publish.
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