NUMBER 13-06-140-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
BOBBY LYNN LOFTIS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 94th District Court of Nueces County, Texas
MEMORANDUM OPINION
Before Chief Justice Valdez, and Justices Rodriguez and Garza
Memorandum Opinion by Justice Garza
A jury found appellant, Bobby Lynn Loftis, guilty of attempted capital murder, injury to a child, and aggravated assault. The jury sentenced appellant to life imprisonment for the attempted capital murder charge and for the injury to a child charge, and to twenty years' imprisonment for the aggravated assault charge, all running concurrently. By one issue, appellant contends the trial court erred in denying his request for a "sudden passion" instruction in the punishment phase. We affirm.
Background
Appellant and Brenda Elizondo dated for eight or nine years until breaking up in 2005. In 1999, they had a daughter, Veronica Loftis. Appellant's relationship with Brenda was an abusive one. According to appellant, on August 27, 2005, he wanted to take Veronica to Dallas to visit his parents. Appellant asked Brenda to allow him to take Veronica, asked her to get back together with him, and wanted Brenda to give him a ride to the airport or bus station. Brenda refused to pursue a relationship with appellant, refused to allow appellant to take Veronica to Dallas, and refused to give appellant a ride. Appellant, who claimed he was upset even before he met with Brenda and Veronica, grew angrier with Brenda's refusal to concede to his wishes. Appellant drew a gun and insisted that Brenda resume a relationship with him. Appellant then choked Brenda, pointed the gun at her and said, "If you don't take me to the airport right now I'm going to kill all your fucking family." Appellant then shot Brenda in the head, and proceeded to shoot his six-year-old daughter in the head. After being shot, Veronica fell to the floor, got back up and said "[M]y daddy shot my mom and he shot me and I don't want to die." Appellant then shot himself. Brenda, Veronica, appellant, and Brenda's 82 year-old grandmother, Olivia, who suffered a heart attack as a result of the altercation, were taken by ambulance to the hospital. Brenda suffered a gunshot wound above her right eyebrow with an exit wound on her left temporal lobe. Veronica suffered a gunshot wound on the left side of her head. Appellant had a gunshot wound under his chin and an exit wound on the top of his forehead. Both Brenda and Veronica sustained serious bodily injury, but Brenda sustained the most serious injury. Brenda suffered brain damage, her nose and entire roof of her left eye were destroyed, she lost all vision in her left eye, and was unable to open the eyelid. Veronica made a miraculous recovery.
At trial, appellant claimed the gun accidently went off once, injuring both Brenda and Veronica with one bullet. He admitted to intentionally shooting himself. Appellant testified that he had never before been as angry as the night of the shooting and that he "just, lost [his] (unintelligible)." He claimed that he was set off because Brenda refused to let him take Veronica out of town and the fact that the argument went on and on "and it just kept building up and I just lost control."
Analysis
In his sole issue, appellant contends the trial court erred in refusing his request to submit a "sudden passion" instruction to the jury during the punishment phase of trial. See Tex. Pen. Code Ann. § 19.02(d) (Vernon 2003). (1) At the punishment stage of a murder trial, "the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from adequate cause." Id. "Sudden passion" means "passion directly caused by and arising out of provocation by the individual killed." Id. § 19.02(a)(2). "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." Id. § 19.02(a)(1). If the defendant proves the issue by a preponderance of the evidence, the offense is reduced to a second degree felony. Id. § 19.02(d).
In the present case, appellant was convicted of attempted capital murder, not attempted murder. Because appellant was convicted of attempted capital murder, he was not entitled to the submission of a sudden passion instruction in the punishment charge. See Ex parte Watkins, 73 S.W.3d 264, 276 (Tex. Crim. App. 2002) (stating "if appellant is convicted of attempted capital murder, the trial court will not even have occasion to submit the 'sudden passion' issue.") (emphasis original); see also Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000) (providing that a person convicted of capital murder is not entitled to submission of "sudden passion" issue at punishment).
Appellant contends that the reasoning in Mims v. State, 3 S.W.3d 923 (Tex. Crim. App. 1999) supports a conclusion that, because attempted murder is a lesser included offense of attempted capital murder, the issue of "sudden passion" can be submitted in an attempted capital murder case. However, in Watkins, the court of criminal appeals, in addressing a contention similar to the one in Mims, explained that although "sudden passion" can be an issue in an attempted murder prosecution, its applicability is due to the derivation of attempted murder from murder. See Watkins, 73 S.W.3d at 276 n.6. The court reasoned, "[b]ecause the 'sudden passion' issue is not applicable to capital murder, it would likewise be inapplicable to attempted capital murder." Id. The court further explained:
Under Wesbrook, "sudden passion" does not reduce a capital murder to a lesser crime. That capital murder is built upon first degree murder is immaterial. If the State proves the additional elements required to establish capital murder, then "sudden passion" simply does not constitute a partial excuse to the crime, as it would if the State had proved only ordinary murder. The Legislature is within its prerogative to set a factor that is mitigating as a matter of law with respect to one offense, but not with respect to a greater offense.
Id. Because appellant was not entitled to the submission of the issue of "sudden passion," the trial court properly denied his request to instruct the jury. Accordingly, appellant's issue is overruled.
Conclusion
The judgment of the trial court is affirmed.
_________________________
DORI CONTRERAS GARZA,
Justice
Do not publish.
Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 12th day of April, 2007.
1.