NO. 12–05-00146-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DANIEL LATHAM, § APPEAL FROM THE FOURTH
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § RUSK COUNTY, TEXAS
MEMORANDUM OPINION
Daniel Latham appeals his conviction for murder. In eight issues, Appellant contends that the trial court should have granted his motion for a new trial, that the evidence was insufficient to support either the jury’s implicit decision that he did not act in self defense or the jury’s explicit rejection of his “sudden passion” defense, and that the trial court erroneously instructed the jury. We affirm.
Background
Appellant and his fiance were living in various homeless shelters and on the streets of Longview, Texas at the beginning of 2004. They had lived with his family at various times, but had been unable to secure permanent housing. Appellant met Dean Suggs one day while he was outside a shelter smoking a cigarette. Suggs offered to give him some money and a place to stay while he got on his feet. Apparently these kinds of offers were not without precedent, and Appellant or his fiance had stayed with at least one other person under similar circumstances.
Two days later, Appellant and his fiance accepted the offer and went with Suggs to his house. That afternoon, Suggs left the two at his home while he went to his job at a restaurant in Kilgore, Texas. At the end of his shift, he brought Appellant to the restaurant where he was interviewed for a job. Appellant gave another’s name as his own during the interview.
The next morning, the three awoke and ate breakfast. Appellant’s fiance took ill, and Suggs suggested that she sit outside in the fresh air. Appellant’s fiance went outside and, according to Appellant, Suggs attempted to forcibly sexually assault him. Appellant took a hammer from a nearby table and struck Suggs with it. Appellant told the authorities that he hit Suggs three times, including once while Suggs was on the ground, and that Suggs was still alive when Appellant left. The medical examiner testified she was able to identify nine individual strikes from the hammer to the victim’s head and more blows to the body. Such a precise assessment was possible because the face of the hammer had a distinctive finish, and the strikes transferred that pattern to the victim’s body. The strikes were heavy. They shattered the victim’s skull and broke his jaw and ribs. The medical examiner was unable to identify which strike killed the victim or to determine how long it took for death to come.
Appellant took the victim’s keys and wallet and left the home with his fiance in Suggs’s car. They went back to the shelter and picked up two friends. After a stop to purchase marihuana, they went to the Sears retail store where Appellant’s father worked. Appellant told his father he was going to Florida and borrowed twenty dollars from him.
Appellant made his way to a shelter in St. Augustine, Florida. The police were called to the shelter on an unrelated matter and determined that Appellant was driving the victim’s car. The police in Texas had put out an alert for the vehicle, and Appellant was arrested and extradited back to Texas.
A Rusk County grand jury indicted Appellant for the offense of murder. Appellant pleaded not guilty and argued at trial that he had acted in self defense. The jury rejected the self defense argument and found him guilty of murder. In the punishment phase of the trial, Appellant raised the affirmative defense of “sudden passion.” The jury rejected that defense and assessed punishment at fifty-five years of imprisonment.
After receipt of the verdict, the court inquired of the jurors about their use of cellular telephones. Several jurors said that they had used their phones to inform relatives about their anticipated schedule. Appellant filed a motion for a new trial alleging that the use of the cellular telephones was juror misconduct and that jurors had discussed the impact of parole on the amount of time he would serve in prison. The trial court conducted a hearing and received the juror’s cellular phone records. The trial court denied the motion for a new trial. This appeal followed.
Motion for New Trial
In his first three issues, Appellant complains that the trial court should have granted his motion for new trial because the jury engaged in misconduct by communicating with others during deliberations, by returning a quotient verdict on punishment, and by considering parole. We will address these complaints in turn.
Standard of Review
We review a trial court’s denial of a motion for new trial for an abuse of discretion. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). A trial court may not make findings or summarize the evidence adduced at a hearing on a motion for a new trial. Tex. R. App. P. 21.8(b). Therefore, we view the evidence in the light most favorable to the trial court’s ruling and presume that any reasonable factual findings were made against the losing party. Charles, 146 S.W.3d at 206. A trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court’s ruling. Id. at 208.
Juror Communications
The rules of appellate procedure state that a trial court must grant a motion for a new trial if a juror has talked with another person about the case after retiring to deliberate or has engaged in corrupt conduct. Tex. R. App. P. 21.3(d), (f); see also Tex. Code Crim. Proc. Ann. art. 36.22 (Vernon 2005). The court of criminal appeals has interpreted this provision to mean that injury to the defendant is presumed if there is an unauthorized conversation about the case, but that the State may rebut this presumption. Quinn v. State, 958 S.W.2d 395, 401 (Tex. Crim. App. 1997).
In this case, it is not clear that any juror talked to another person about the case after retiring to deliberate. Several jurors called family members to indicate that they would not be home for the evening meal. Several others called family members to discuss arrangements for a ride, and one juror called his wife to have her cancel an appointment he had for that evening. In Thompson v. State, Nos. 14-03-00273-CR, 14-03-00274-CR, 2004 Tex. App. LEXIS 6856, at *15-18 (Tex. App.–Houston [14th Dist.] 2004, pet. ref’d) (not designated for publication), the court of appeals considered an instance where a juror called his wife and told her to change their travel plans for the following Monday because one of the jurors was holding out for a sentence substantially lower than the others thought appropriate. In that case, the court treated the matter as a communication about the case, but found that it did not injure or prejudice the accused. Id., at *17-18 (citing Stults v. State, 23 S.W.3d 198, 206 (Tex. App.–Houston [14th Dist.] 2000, pet. ref’d); Ites v. State, 923 S.W.2d 675, 677-78 (Tex. App.–Houston [1st Dist.] 1996, pet. ref’d)).
None of the communications in this case rose even to the level of the communication in Thompson. The trial court’s decision to deny the motion for new trial on this issue is sustainable either on the grounds that there were no communications about “the case” or on the grounds that there was no injury or prejudice. There was no testimony that any juror discussed the case with an outside party. In fact, every juror who was asked testified that he or she did not discuss the case on the telephone. There was no evidence that the jurors discussed their conversations with their family members among themselves. The telephone calls were of a routine nature, alerting family members when to expect the jurors. No deliberation information was passed out of the jury room and, so far as the evidence shows, no information came into the jury room.
In this case, there was no communication about the case and no corrupt conduct. The trial court did not abuse its discretion when it denied the motion for new trial with respect to the allegation that there was communication about the case or corrupt conduct. We overrule Appellant’s first issue.
Quotient Verdict
Jurors may not reach their verdict by lot or in any other manner that is not a fair expression of the jurors’ opinion. Tex. R. App. P. 21.3. Appellant alleges that the punishment was assessed by a “quotient verdict,” in violation of Rule 21.3. Indeed, several jurors testified that each juror wrote down an individual assessment of the appropriate sentence at the outset of the deliberations and that the foreperson then tallied those numbers in some way.1 No one could describe the method used to aggregate those amounts, but one juror testified that the outcome of the calculations was forty-four years.
A “quotient verdict,” or the averaging of the positions of individual jurors, is impermissible, but only if the jurors agree in advance to be bound by the outcome of the averaging device. Martinez v. State, 496 S.W.2d 612, 613–14 (Tex. Crim. App. 1973). The court of criminal appeals has held that there is no error if the jurors use such a device in the absence of an agreement to be bound by the outcome. Id.
There is no evidence of any agreement by the jurors to be bound by the averaging of their respective positions on the appropriate punishment in this case. In fact, several jurors testified that they were not influenced by the arithmetic calculations done by the foreperson. As it happens, the jury ultimately agreed with a sentence proposed by the district attorney, fifty-five years. This represented a substantial compromise between one juror who initially thought community supervision was appropriate and others who thought ninety-nine years was appropriate. But the implicit conclusion by the trial court that the verdict was a result of deliberation by the jury and not the mechanical application of an arithmetic device is supported by the record. We overrule Appellant’s second issue.
Discussion of Parole
As required by law, the trial court instructed the jury that a defendant’s term of imprisonment could be reduced by an award of parole or “good conduct time.” See Tex. Code Crim. Proc. Ann. art. 37.07 § 4(a) (Vernon 2005). The jurors were further instructed that they could consider the existence of the parole law and good conduct time but could not consider how those mechanisms might affect Appellant. See id.
A jury’s discussion of parole is reversible error when a defendant shows there was (1) a misstatement of the law, (2) asserted as a fact by one professing to know the law, and (3) the misstatement was relied upon by other jurors, (4) who for that reason changed their vote to a harsher punishment. Salazar v. State, 38 S.W.3d 141, 147 (Tex. Crim. App. 2001) (citing Sneed v. State, 670 S.W.2d 262, 266 (Tex. Crim. App. 1984)).
In this case, there was some suggestion that there might have been a misstatement of the law. At least one juror testified that another juror had said that convicted persons served one third of the assessed sentence. But there is no suggestion that any juror professed to know the law or that such an assertion was relied upon or was the basis for any juror to vote for a longer sentence. Instead, the evidence was clear that the foreperson stopped conversation about parole, telling the jurors that they were forbidden to discuss it.
The implicit trial court finding that there was no juror misconduct with respect to discussion of parole law is supported by the record and is not an abuse of its discretion. We overrule Appellant’s third issue.
Sufficiency of the Evidence–Rejection of Self Defense
In his fourth and fifth issues, Appellant argues that the evidence is insufficient to sustain his conviction in light of his argument at trial that he acted in self defense.
Standard of Review
In reviewing the legal sufficiency of the evidence to support a verdict, we view 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, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). When a defense is presented, we determine 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 found against the Appellant on the defensive issue beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).
When a defendant challenges the factual sufficiency of the rejection of a defense, we review all of the evidence in a neutral light and ask whether the State’s evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003).
Applicable Law
As charged, a person commits the offense of murder if, acting with the intent to cause serious bodily injury, he commits an act clearly dangerous to human life that causes the death of an individual. Tex. Pen. Code Ann. § 19.02(b)(2) (Vernon 2005). A person may use deadly force against another if he reasonably believes that deadly force is necessary to protect himself against the other’s use or attempted use of unlawful force, if a reasonable person in the actor’s situation would not have retreated, and if the use of force is to the degree reasonably believed to be immediately necessary to protect against an attack. Tex. Pen. Code Ann. §§ 9.31(a), 9.32(a) (Vernon 2005). The defendant has the initial burden of producing evidence to support a claim of self defense, but the State retains the burden of persuasion on the issue. See Zuliani, 97 S.W.3d at 594. Because self defense is a complete defense, a finding of guilt is an implied finding against the defensive theory. Id. As the sole judge of the weight and credibility of the testimony, the jury is free to believe or disbelieve the testimony of any witness and to accept or reject any or all of the evidence produced by the parties. See Upton v. State, 853 S.W.2d 548, 552 (Tex. Crim. App. 1993).
Analysis
While his statements to the authorities differed in some details, Appellant’s essential position was that he was faced with a forcible sexual assault when he hit the victim with the hammer. The jury may have concluded that his story was concocted or that Appellant used more force than was necessary to protect himself.
The second proposition finds support in Appellant’s own statements. Appellant said that he hit the victim while he was on the ground. Additionally, Appellant’s statements did not account for the number of strikes to the victim’s body. Appellant said that he hit the victim three times, but the medical examiner testified that there were nine strikes to the victim’s head and others to his body.
There is circumstantial evidence that supports a rejection of the defense in its entirety. Appellant did not alert the authorities, he fled the state with the victim’s wallet and automobile, and his fiance testified that Appellant appeared calm when he exited the house. Also, Appellant apparently removed the telephone from the wall. This activity is not consistent with a person who is required by unfortunate circumstances to kill another human being. On the other hand, as Appellant points out, his statement that the use of force was in defense of his person is not specifically contradicted by the evidence. While not bearing on the issue of the propensity to engage in a sexual assault, the question of the victim’s sexual orientation was not resolved. The defense suggested that he was a homosexual and there were videotapes introduced into evidence that would support that conclusion. The prosecution called several witnesses in rebuttal who testified that the victim was not a homosexual.
Viewing the evidence in a light most favorable to the verdict, we conclude the jury could have rationally determined that all of the elements of the offense were proven and could have found against Appellant on the issue of self defense. Viewing the evidence in a neutral light, we further conclude that the evidence is not too weak to sustain the verdict and that the jury verdict is not against the great weight and preponderance of the evidence.
Sufficiency of the Evidence–Sudden Passion
In his sixth and seventh issues, Appellant contends that the evidence is legally and factually insufficient to support the jury’s rejection of his “sudden passion” defense.
Applicable Law
At the punishment stage of a trial, a person convicted of murder may assert that he caused the death while under the immediate influence of “sudden passion” arising from an adequate cause. Tex. Pen. Code Ann. § 19.02(d) (Vernon 2005). “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.” Id. § 19.02(a)(2). A cause is adequate if it “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). If a defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree. Id. § 19.02(d).
Standard of Review–Legal Sufficiency
When reviewing the legal sufficiency of a rejected affirmative defense, we first examine the record for evidence that supports the finding while ignoring all evidence to the contrary. Cover v. State, 913 S.W.2d 611, 619 (Tex. App.–Tyler 1995, pet. ref’d) (citing Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989)); Cleveland v. State, 177 S.W.3d 374, 387–88 (Tex. App.–Houston [1st Dist.] 2005, pet. ref’d.); Ballard v. State, 161 S.W.3d 269, 271–72 (Tex. App.–Texarkana 2005), aff’d other grounds, 2006 Tex. Crim. App. LEXIS 1070 (Tex. Crim. App. June 7, 2006) (not yet released for publication). If no evidence supports the negative finding, we then examine the entire record to determine if the contrary proposition is established as a matter of law. Cover, 913 S.W.2d at 619.
When reviewing the factual sufficiency of the evidence in light of a rejection of an affirmative defense, we consider all of the evidence and determine whether the judgment is “so against the great weight and preponderance of the evidence so as to be manifestly unjust.” Zuniga v. State, 144 S.W.3d 477, 482 (Tex. Crim. App. 2004). We review the evidence neutrally, but we do not intrude on the fact finder’s role as the sole judge of the weight and credibility given to any witness’s testimony. Johnson v. State, 23 S.W.3d 1, 7-8 (Tex. Crim. App. 2000).
Analysis
As the court noted in Cleveland, it would be an extraordinary case where “sudden passion” was established as a matter of law. See Cleveland, 177 S.W.3d at 389. Indeed, the jury is entitled to reject or disbelieve even uncontradicted testimony. Id. In this sense, this case is an ordinary one. Appellant told one of the investigating officers that he had acted in a rage. He testified that he was scared and terrified. This does not establish “sudden passion” as a matter of law. The jury could have rationally concluded that Appellant was not telling the truth or that his reaction was objectively unreasonable. We likewise hold that the jury’s determination was not manifestly unjust or against the great weight and preponderance of the evidence. While Appellant’s testimony may raise the issue of “sudden passion,” the jury could have disbelieved his story or concluded that the complained of attack was not the sort that would render a person of ordinary temper incapable of cool reflection. In fact, the evidence showed that Appellant was capable of cool reflection immediately after the assault as he calmly instructed his fiance to wait outside, pulled the telephone from the wall, and collected the victim’s car keys, car, wallet, and hammer. There is nothing in the law that requires the period of a loss of cool reflection to have any particular duration, but Appellant’s quick recovery of his planning abilities undercuts his testimony. Perhaps the best objective evidence that Appellant was incapable of cool reflection is the same evidence that may have undercut his self defense argument—the excessively brutal nature of the murder. As Appellant points out, the two defenses are not mutually exclusive. See Medlock v. State, 591 S.W.2d 485, 487 (Tex. Crim. App. 1979). But the brutal nature of the assault does not prove that Appellant acted with “sudden passion” or that the provocation, if any, was the kind that would commonly cause this kind of reaction from a person of ordinary temper.
The jury had the ability to observe Appellant as he testified and was in the best position to assess his credibility. The jury’s resolution of what conflicts there were in the evidence was reasonable as was their rejection of the “sudden passion” defense. We overrule Appellant’s sixth and seventh issues.
Jury Instruction
In his eighth issue, Appellant argues he is entitled to a new punishment hearing because the jury instructions did not require a unanimous verdict on the issue of “sudden passion.”
Applicable Law
The jury’s verdict on the “sudden passion” issue must be unanimous. Sanchez v. State, 23 S.W.3d 30, 34 (Tex. Crim. App. 2000). Appellant did not object to the jury charge, and so we review the matter to determine if he suffered egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1988). In making this determination, “the actual degree of 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 relevant information revealed by the record of the trial as a whole.” Id. The purpose of this review is to illuminate the actual, not just theoretical, harm to the accused. Id. at 174. Egregious harm is a difficult standard to meet and must be determined on a case by case basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002).
Analysis
The jury was asked the following question:
Do you find by a preponderance of the evidence that on the occasion in question, at the time of the commission of the offense for which defendant is on trial, the Defendant, Daniel Latham, caused the death of DEAN SUGGS while he, DANIEL LATHAM, was under the immediate influence of sudden passion arising out of adequate cause?
The jury answered “No” on the verdict form they were given. Appellant cites Newton v. State, 168 S.W.3d 255 (Tex. App.–Austin 2005, pet. ref’d), for the proposition that a jury charge that does not specifically require a unanimous determination on the “sudden passion” question is defective. But Newton is easily distinguished from the present case. In Newton, the verdict form did not require the jury to unanimously find against the defense before they sentenced him as a first degree felon. Id. at 257-58. Instead, the charge, to which the defendant objected, allowed the jury to unanimously find that “sudden passion” was established and sentence the defendant as a second degree felon or to sentence him as a first degree felon without making a unanimous determination on the “sudden passion” issue. Id. The court of criminal appeals has required that the verdict on “sudden passion” be unanimous whether it is accepted or rejected, and the court in Newton found error on that basis. Id. at 260; Sanchez, 23 S.W.3d at 32.
The present case does not suffer from that defect. The jury was required to answer the question about “sudden passion,” and they did so. That portion of the charge does not recite that the determination must be unanimous, but neither did it allow a less than unanimous determination against Appellant’s position. In Cartier v. State, 58 S.W.3d 756, 760 (Tex. App.–Amarillo 2001, pet. ref’d), the jury charge did not specifically say that the finding on the matter of “sudden passion” was to be unanimous, but it did state elsewhere that the verdict was to be unanimous. Id. The court concluded that this sufficiently directed the jury to make a unanimous determination of the “sudden passion” issue.
We find Cartier to be persuasive on this issue. The jury in this case was instructed that their verdict must be unanimous and that they were to have the foreperson sign her name to the form that conformed to their verdict. In the same paragraph they were instructed to answer the special issue, the “sudden passion issue,” before considering the sentence. Additionally, after receiving the verdict, the judge recited that the jury verdict was “no” on the “sudden passion” issue and that punishment was assessed at fifty–five years of imprisonment. The jury was polled and asked if the judge had recited their verdict correctly. Each juror agreed that it had been recited correctly.
The jury charge instructed the jury that the verdict was to be unanimous and did not permit the jury to decide the “sudden passion” issue on less than a unanimous basis. The instructions could have more clearly stated that the finding on the issue of “sudden passion” had to be unanimous, but we hold that the instructions were sufficiently clear that Appellant did not suffer egregious harm. We overrule Appellant’s eighth issue.
Disposition
We affirm the judgment of the trial court.
SAM GRIFFITH
Justice
Opinion delivered July 26, 2006.
Panel consisted of Worthen, C.J. and Griffith, J.
(DO NOT PUBLISH)
1 The State argues that a juror may not testify about deliberations. See Tex. R. Evid. 606(b). This objection was not raised in the trial court, and this type of evidence may be considered when it is admitted without objection. See Salazar v. State, 38 S.W.3d 141, 147 n.3 (Tex. Crim. App. 2001).