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Opinion filed November 3, 2005
In The
Eleventh Court of Appeals
__________
No. 11-03-00391-CR
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CHRISTOPHER CLARENCE RHYNES, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 42nd District Court
Taylor County, Texas
Trial Court Cause No. 21,046-A
O P I N I O N
The indictment charged appellant, Christopher Clarence Rhynes, with murdering James Thomas Talent by intentionally and knowingly causing his death and by intentionally and knowingly committing an act clearly dangerous to human life with the intent to cause serious bodily injury. See TEX. PEN. CODE ANN. ' 19.02(b)(1) & (2) (Vernon 2003). The charge of the court submitted to the jury also contained the lesser included offenses of manslaughter and criminally negligent homicide. See TEX. PEN. CODE ANN. '' 19.04 & 19.05 (Vernon 2003). The jury convicted appellant of manslaughter and assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of 18 years and 6 months. Appellant raises two points of error attacking his conviction. We affirm.
Facts
Appellant admitted at trial to stabbing Talent with a knife during the early morning hours of February 2, 2003.[1] Appellant asserted that he stabbed Talent in self-defense during an altercation that occurred at Talent=s house. The altercation allegedly stemmed from an incident which occurred on the previous night. Appellant was romantically involved with Talent=s former girlfriend, Brenda Borrego. Borrego testified that Talent forced his way into her home on the previous night and grabbed her by the throat. Appellant witnessed this alleged assault by Talent upon Borrego. Borrego testified that both she and appellant were worried about her safety as a result of Talent=s actions on the previous night.
Appellant testified that he drove by Talent=s house several times on the following day in order to monitor Talent=s whereabouts. Appellant and Borrego subsequently met at a bar that night (February 1, 2003). They stayed at the bar until it closed after midnight on February 2, 2003. Leaving in separate vehicles, both appellant and Borrego drove to Talent=s house. Appellant and Borrego testified that neither of them knew that the other one planned to go to Talent=s house on their way to Borrego=s house. Borrego testified that she drove to Talent=s house to make sure that he was not present at her house. Appellant testified that he drove by Talent=s house for the same reason. Borrego arrived at Talent=s house first. She testified that she entered Talent=s house uninvited and ordered Talent to leave her alone. Upon exiting Talent=s house, Borrego observed appellant. After a brief conversation with appellant outside of Talent=s house, Borrego left Talent=s house and was under the impression that appellant would be leaving at the same time.
Instead of leaving Talent=s house, appellant decided to enter Talent=s house to discuss the events of the previous night with Talent. Appellant stated that Talent hit him in the chest, knocking appellant to the floor. Appellant further testified that a physical struggle then occurred between he and Talent. Appellant contends that he stabbed Talent in self-defense with a knife he found on Talent=s kitchen table. Appellant subsequently threw the knife away in a dumpster. Appellant hid the clothes that he wore at the time of the stabbing underneath Borrego=s trailer house.
Dr. Marc Andrew Krouse, the forensic pathologist who perform an autopsy on Talent, testified that Talent died as a result of a single stab wound to the chest. The stab wound was 5.5 inches deep. The knife penetrated the right ventricle of the heart, the aorta, and the main bronchus of the right lung. The penetration of the knife stopped when it struck Talent=s spinal column. Dr. Krouse testified that Talent suffered massive internal bleeding almost immediately after being stabbed. Dr. Krouse further testified that extreme blood loss would have occurred externally within four seconds.
Appellant initially denied knowledge of the circumstances surrounding Talent=s death when contacted by the police. However, he subsequently admitted to his involvement by executing a written statement.
Issues on Appeal
In his first point of error, appellant contends that the trial court erred in overruling his request to delay the cross-examination of Borrego until his case-in-chief. Appellant attacks the legal and factual sufficiency of the evidence in his second point of error.
Request to Reserve Cross-Examination
The State called Borrego as a witness during its case-in-chief. At the conclusion of her direct testimony, appellant=s trial counsel made the following request: A[Appellant] would like to reserve the cross examination until his case-in-chief of this witness, Your Honor.@ At the time he made this request, appellant did not offer a reason to justify a departure from the traditional practice of conducting cross-examination immediately following the direct examination of the witness. When the trial court denied this request, appellant=s trial counsel informed the trial court that he would recall Borrego as a witness during appellant=s case-in-chief.
Appellant cites Craig v. State, 594 S.W.2d 91, 95-96 (Tex.Cr.App.1980), for the proposition that a defendant does not lose his right to recall a State=s witness for cross-examination merely because he does not exercise the right of cross-examination immediately after direct examination by the State. Appellant has correctly cited Craig for this proposition. With respect to the holding in Craig, we note that the evidentiary hurdle which the Court of Criminal Appeals sought to overcome no longer exists. The court based its holding on the common law Avoucher@ rule which prohibited a party from impeaching his or her own witness. Craig v. State, supra at 95-96; see Russeau v. State, 785 S.W.2d 387, 390 (Tex.Cr.App.1990). The court subsequently noted in Russeau that the voucher rule has been abrogated by TEX.R.EVID. 607. Russeau v. State, supra at 390.
The gist of appellant=s complaint on appeal is that the trial court=s ruling prevented him from asking leading questions of Borrego during his direct examination of her during his case-in-chief. The State lodged two Aleading@ objections which the trial court sustained during appellant=s direct examination of Borrego. TEX.R.EVID. 611(c) specifies the situations wherein leading questions may be asked during direct examination:
Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the testimony of the witness....When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. (Emphasis added)
In the two instances when the trial court sustained the State=s objection to a leading question propounded to Borrego by appellant, he did not seek to invoke any of the exceptions provided by Rule 611(c) for asking a leading question during the direct examination of a witness. We decline to find that the trial court erred in not permitting leading questions during direct examination when the party seeking to ask them did not request to be permitted to do so under Rule 611(c). Furthermore, appellant did not make an offer of proof with regard to any testimony that he was unable to obtain from Borrego. See TEX.R.EVID 103(a)(2) & (b). Accordingly, the record does not show that the trial court committed reversible error with regard to not allowing appellant to ask Borrego leading questions. See TEX.R.APP.P. 44.2. Appellant=s first point of error is overruled.
Sufficiency of the Evidence
As noted previously, appellant attacks the legal and factual sufficiency of the evidence supporting his conviction. Specifically, he contends that the evidence was legally and factually insufficient to disprove his claim of self-defense. The State argues that appellant is estopped from attacking the sufficiency of the evidence by not objecting to the submission of the lesser included manslaughter charge on which the jury ultimately convicted him. We agree. A defendant who requests or does not object to the submission of a lesser included offense is estopped from complaining on appeal that the evidence is legally or factually insufficient to support a conviction of the lesser offense. See State v. Lee, 818 S.W.2d 778, 781 (Tex.Cr.App.1991), overruled on other grounds by Moore v. State, 969 S.W.2d 4, 10 (Tex.Cr.App.1998); see also State v. Yount, 853 S.W.2d 6, 9 (Tex.Cr.App.1993); Otting v. State, 8 S.W.3d 681, 687 (Tex.App. ‑ Austin 1999, pet=n ref=d, untimely filed). This rule is based upon the rationale that the defendant cannot subsequently attack the sufficiency of the evidence after previously accepting the benefit of the lesser included charge. Otting v. State, supra at 687.
Moreover, even if the rule of estoppel is not applicable, we conclude that the evidence supporting appellant=s conviction is both legally and factually sufficient. In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether 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 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex.Cr.App.2000). To determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond‑a‑reasonable‑doubt burden of proof could not have been met. Zuniga v. State, 144 S.W.3d 477 (Tex.Cr.App.2004); Ross v. State, 133 S.W.3d 618 (Tex.Cr.App.2004); Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Cr.App.2003); Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). The jury, as the trier of fact, was the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. TEX. CODE CRIM. PRO. ANN. arts. 38.04 & 36.13 (Vernon 1979 & 1981). Deference is given to the jury verdict, as well as to determinations involving the credibility and demeanor of witnesses. Cain v. State, supra at 407.
After the defendant has introduced some evidence of a defense, the State bears the burden of persuasion to disprove it. Zuliani v. State, supra at 594; Saxton v. State, 804 S.W.2d 910, 913-14 (Tex.Cr.App.1991). This burden does not require the State to introduce evidence disproving the defense, rather it requires the State to prove its case beyond a reasonable doubt. Zuliani v. State, supra at 594; Saxton v. State, supra at 913. To determine legal sufficiency of the evidence to disprove a nonaffirmative defense, the appellate court asks whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of the offense beyond a reasonable doubt and also would have found against appellant on the defensive issue beyond a reasonable doubt. Saxton v. State, supra at 914. When a defendant challenges the factual sufficiency of the rejection of a defense, the reviewing court employs the same standard of review articulated in Zuniga because, once the defendant has met his or her burden of production of evidence as to a defense, the State bears the burden to prove appellant=s guilt of the charged offense beyond a reasonable doubt. See Zuniga v. State, supra at 484; Zuliani v. State, supra at 595. A guilty finding is an implicit rejection of the defense. Zuliani v. State, supra at 594.
Appellant contends that the State failed to offer sufficient evidence to overcome his claim of acting in self-defense. Appellant=s evidence to support his self-defense claim came primarily from his own testimony. He points to his testimony that Talent attacked him first and that he attempted to flee from Talent=s home when the altercation began. The jury, as the sole judge of the credibility of appellant=s testimony, was free to reject his account of the altercation. In this regard, the police officers who processed the murder scene did not find evidence of a struggle inside of Talent=s house. Furthermore, appellant testified that Talent traveled a relatively long distance from the location in the house where he stabbed Talent to the place where Talent ultimately collapsed. The police did not find blood along the path which Talent purportedly traveled after being stabbed. As noted previously, Dr. Krouse testified that Talent experienced massive external blood loss almost immediately after being stabbed. Under Texas law, a person commits the offense of manslaughter Aif he recklessly causes the death of an individual.@ Section 19.04(a). TEX. PEN. CODE ANN. ' 6.03(c) (Vernon 2003) provides:
A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.
Appellant testified that he Apoked@ the knife at Talent Ato scare him@ in an effort to flee the altercation. Common sense dictates that the act of poking a knife at someone will support a finding of reckless conduct. When the evidence is viewed in the light most favorable to the jury=s verdict, we conclude that a rational trier of fact could have found the essential elements of manslaughter beyond a reasonable doubt while rejecting appellant=s claim of acting in self-defense. Furthermore, when the evidence is viewed in a neutral light, we conclude that the evidence supporting guilt is not so weak that the verdict is clearly wrong and manifestly unjust or that the evidence contrary to the verdict is not so strong that the beyond-a-reasonable-doubt burden of proof could not have been met.
The judgment of the trial court is affirmed.
TERRY McCALL
JUSTICE
November 3, 2005
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Wright, C.J., and McCall, J.
Strange, J., not participating.
[1]In addition to testifying at trial, appellant signed a written statement acknowledging the act.