COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
DIETRICH EARL SHANNON, §
No. 08-13-00320-CR
Appellant, §
Appeal from the
v. §
Criminal District Court No. 7
THE STATE OF TEXAS, §
of Dallas County, Texas
Appellee. §
(TC# F-1259228-Y)
OPINION
Appellant Dietrich Shannon was convicted of murder and sentenced to life. On appeal,
Appellant contends the evidence was insufficient to support the jury’s rejection of his claims of
self-defense and sudden passion. He also contends the trial court erroneously charged the jury on
those two issues, and that the trial court erroneously failed to charge the jury on the lesser-included
offenses of manslaughter and criminally negligent homicide. We conclude the evidence was
sufficient to support the jury’s verdict and the trial court did not err in charging the jury.
Accordingly, we affirm.1
BACKGROUND
1
This case was transferred from our sister court in Dallas, and we decide it in accordance with the precedent of that
court to the extent required by TEX.R.APP.P. 41.3.
At 3 a.m. the morning of August 17, 2012, Dallas firefighters were called to the scene of a
dumpster fire, where they found the charred body of an adult woman. The victim’s body was
wrapped in a blanket with tape, and a ligature was found around her neck. The victim’s identity
was quickly established based on her prior criminal record with the Dallas County Sheriff’s Office
and the Dallas Police Department.
Shortly thereafter, an informant arrived at the Dallas Police Department and confessed that
he had assisted Appellant in transporting the victim’s body in the trunk of his car from Appellant’s
residence to the dumpster, and that he had observed Appellant pour gasoline into the dumpster and
light it on fire. A search of the informant’s car uncovered two plastic gas cans in the backseat.
The police obtained a search warrant of Appellant’s residence, and found blood on clothing
in an armoire in Appellant’s bedroom. Subsequent testing indicated the blood and the DNA on
the clothing matched the victim’s DNA. The police also found a roll of tape in Appellant’s
bedroom that was similar to the tape used to wrap the victim. Subsequent testing revealed the
tape contained DNA matches for both the victim and Appellant. Police also found a latex glove in
Appellant’s bedroom, as well as drug paraphernalia. Appellant’s DNA was not found on the belt
wrapped around the victim’s neck. A forensic biologist testified, however, that if Appellant had
been wearing gloves when he strangled the victim, it was possible his genetic markers would not
have been found on the belt. Further, the witness explained, the fire could have degraded any
DNA left on the belt.
Appellant was arrested and transported to the police station. After being warned of his
rights, Appellant waived his right to counsel and spoke to a detective during a videotaped
interview. Appellant acknowledged he was acquainted with the victim, but initially denied
2
having any knowledge of her death. After the detective confronted Appellant with the
information the police had obtained, however, Appellant confessed to killing the victim at his
residence two days earlier. Appellant claimed that on the evening of the killing, he and the victim
were smoking crack cocaine together in his bedroom, when they became embroiled in an argument
in which the victim claimed Appellant owed her money. Appellant stated the victim threatened to
steal a car from his residence and to come back later with a “Taser.” Appellant asserted the victim
then “swung” at him, and that he reacted by swinging back at her, causing her to fall backwards
and hit her head on a dresser in his bedroom. According to Appellant, blood started coming out of
the victim’s mouth. He became “scared” and wrapped the victim in a blanket, placed tape around
her body, and put her body in an armoire in his bedroom. The victim’s body remained in the
armoire for two days until he contacted his friend (the informant) to help him dispose of her body.
Appellant stated the entire incident happened very fast, and insisted the victim’s death was
an accident. Appellant expressly denied having any knowledge of a cord or other object being
wrapped around the victim’s neck, and instead consistently claimed the victim had simply fallen
backwards and hit her head during their fight, presumably resulting in her death.2
Dr. Joni McClain, the Deputy Chief Medical Examiner in Dallas County, performed an
autopsy on the body. Dr. McClain testified that when the victim’s body was initially brought to
the examiner’s office, there was a belt wrapped tightly around the victim’s neck, circling it three
times. Dr. McClain determined the victim had died from “ligature strangulation.” Dr. McClain
2
Shortly after the detective left the interview room, Appellant had a recorded conversation with his father, in which he
repeated the same version of the events. During this conversation, Appellant again repeated that he did not mean to
harm the victim.
3
also concluded the victim had not suffered any injuries to her head, skull, or scalp area, or from any
other blunt trauma, prior to her death.
Evidence was introduced at trial that the victim had a prior criminal record, which included
at least one family violence assault conviction. The detective who interviewed Appellant at the
time of his arrest also testified that he had previously met the victim years earlier when she was a
possible witness to a murder in Dallas. The detective described the victim as a “pretty tough gal”
who could be “pretty abrasive.” He further stated that in light of the victim’s past criminal history
involving “violent behavior,” and the fact that she was a drug user, he was not surprised to learn
she had been in a fight with Appellant.
In his closing argument, Appellant’s attorney acknowledged that Appellant had killed the
victim, but claimed that Appellant had acted in self-defense. He asserted that both parties were
“using crack and drugs” when they became embroiled in a “drug-induced” fight over money,
which turned deadly. Counsel claimed that during this fight, the victim threatened and “attacked”
Appellant first, causing him to defend himself by swinging back at her. Appellant’s attorney also
pointed to the victim’s criminal history and the detective’s testimony that the victim was a “tough,
rough, aggressive person,” as justification for Appellant’s admittedly forceful reaction to her.
The jury was instructed on the issue of self-defense, but the jury rejected that defense,
finding Appellant guilty of murder. During punishment, the jury was also instructed that the
murder charge could be reduced to a second-degree felony if it found Appellant had acted under
the “immediate influence of sudden passion arising from an adequate cause,” but the jury rejected
that defense as well. The State sought to enhance Appellant’s sentence with two prior felony
4
convictions to which Appellant pled not true. The jury found both enhancement allegations to be
true, and assessed a life sentence against Appellant.
DISCUSSION
Legally Sufficient Evidence Supported the Jury’s Rejection
of Appellant’s Claim of Self-Defense
In his first issue, Appellant contends the evidence was legally insufficient to allow the jury
to reject his claim of self-defense, and that no rational juror could have found against him on that
issue.
Standard of Review and Applicable Law
Self-defense is statutorily defined: “A person is justified in using deadly force against
another: (1) if the actor would be justified in using force against the other under Section 9.31; and
(2) when and to the degree the actor reasonably believes the deadly force is immediately
necessary[.]” TEX. PENAL CODE ANN. § 9.32 (West 2011). Section 9.31 provides that “a person
is justified in using force against another when and to the degree the actor reasonably believes the
force is immediately necessary to protect the actor against the other’s use or attempted use of
unlawful force.” Id. at § 9.31 (West 2011).
The defendant has the initial burden to produce some evidence to support a claim of
self-defense. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003). But once the
defendant produces some evidence, the burden shifts to the State, which bears the ultimate burden
of persuasion to disprove the raised defense. Saxton v. State, 804 S.W.2d 910, 913
(Tex.Crim.App. 1991). The State cannot meet its burden by simply refuting the self-defense
claim; rather, the State must prove its case beyond a reasonable doubt. Id.
5
We review the legal sufficiency of the evidence to support a jury’s rejection of a
self-defense claim under the Jackson v. Virginia standard. Smith v. State, 355 S.W.3d 138, 144
(Tex.App. – Houston [1st Dist.] 2011, pet. ref’d) (applying standard to jury’s rejection of
self-defense claim); see also Saxton, 804 S.W.2d at 914 (distinguishing standard of review for
defensive claims in which State bears the burden of persuasion and affirmative defenses in which
defendant bears the burden of proof). Under that standard, a reviewing court must examine all of
the evidence in the light most favorable to the verdict and determine whether a rational trier of fact
could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In self-defense cases,
this requires a court to review all of the evidence presented at trial in the light most favorable to the
prosecution to determine if any rational trier of fact would have found the essential elements of
murder beyond a reasonable doubt and also would have found against appellant on the self-defense
issue beyond a reasonable doubt. Saxton, 804 S.W.2d at 914. Further, the court must defer to
the jury’s determinations of the witnesses’ credibility and the weight to be given their testimony,
as the jury is the sole judge of those matters. Jackson, 443 U.S. at 326, 99 S.Ct. at 2793; Brooks v.
State, 323 S.W.3d 893, 899–900 (Tex.Crim.App. 2010) (plurality op.); see also Hargrove v. State,
No. 05-11-00307-CR, 2012 WL 3553501, at *3-4 (Tex.App. – Dallas Aug. 20, 2012, pet. ref’d).
We must be mindful that self-defense is a fact issue to be determined by the jury, and that the jury
is free to accept or reject any defensive evidence on the issue. Saxton, 804 S.W.2d at 913-14.
Analysis
The trial court instructed the jury on the definition of self-defense in accordance with the
applicable law, and further instructed the jury that if it had a reasonable doubt whether Appellant
6
was acting in self-defense, it “should give the benefit of that doubt to defendant and find him not
guilty.”3
In finding Appellant guilty of murder, the jury rejected Appellant’s claim of self-defense.
Saxton, 804 S.W.2d at 914 (a jury’s guilty verdict “is an implicit finding rejecting the defendant’s
self-defense theory”). Appellant argues, however, that no rational jury could have rejected his
claim of self-defense, asserting that he presented conclusive evidence to support that claim and
that the State did not meet its burden of disproving the claim beyond a reasonable doubt.
In support of this argument, Appellant first points to the statements he made during his
videotaped confession to the effect that he had become embroiled in an argument with the victim
while they were both “high on crack.” Appellant asserts that during this altercation, the victim
“exploded” at him, “threatened to steal a car out of the backyard and to taze [sic] [him],” and then
“violently attacked Appellant, swinging at him.” Appellant then points to the detective’s
testimony that the victim was a “tough, mean woman who was a drug addict,” to justify his
reaction of swinging back at the victim in self-defense, causing her to hit her head on a dresser in
her bedroom. Apparently now willing to concede on appeal that he later “wrapped a belt around
3
The trial court instructed the jury that: “a person is justified in using force against another when and to the degree
he reasonably believes the force is immediately necessary to protect himself against the other person’s use or
attempted use of unlawful force. The actor’s belief that the force was immediately necessary is presumed to be
reasonable if the actor knew or had reason to believe that the person against whom the force was used was committing
or attempting to commit unlawful deadly force and did not provoke the person against whom the force was used and
was not otherwise engaged in criminal activity. A person is justified in using deadly force against another if he
would be justified in using force against the other in the first place, as above set out, and when he reasonably believes
that such force is immediately necessary to protect himself against the other person’s use or attempted use of unlawful
deadly force. A person who has a right to be present at the location where the deadly force is used, and has not
provoked the person against whom the deadly force has been used and is not engaged in criminal activity at the time
the deadly force is used, is not required to retreat before using deadly force as described. For the purpose of
determining whether the actor reasonably [believed] that deadly force was necessary, you may not consider whether
the actor failed to retreat.”
7
[the victim’s] neck” and strangled her, Appellant contends that “that fact does not obviate his right
to defend himself against the actual and perceived deadly attack on him by [the victim].”4
In his videotaped confession, however, Appellant never indicated that the victim had a
weapon of any kind at the time of their altercation, and never said that the victim made an
immediate threat to “taze” Appellant; instead, as indicated above, Appellant stated that the
victim’s only threat was to return with a Taser at an unspecified time in the future. Additionally,
the medical examiner testified that at the time of her death, the victim was 5’ 5” and weighed only
126 pounds, while Appellant concedes that he was a “large man” in comparison to the victim’s
“diminutive” stature. Therefore, a rational jury could have concluded that the victim’s act of
swinging at Appellant and threatening to return at a later date with a “Taser,” would not have
caused a reasonable person to believe that it was “immediately necessary” to respond with deadly
force in order to defend himself.
In addition, the jury was presented with a version of the facts at trial that differed
significantly from the version described by Appellant in his videotaped confession. In particular,
the State presented the testimony of the medical examiner, who repeatedly stated that she observed
no physical signs of a head injury on the victim that would have supported Appellant’s claim that
the victim fell backwards and hit her head during the parties’ altercation; instead the medical
examiner testified that the victim died solely due to ligature strangulation. Based on this
contradictory evidence, the jury could have reasonably concluded that Appellant was not credible,
and could have rationally concluded Appellant’s claim of self-defense was fabricated. See
Villarreal v. State, No. 04-13-00553-CR, 2015 WL 1939284, at *6 (Tex.App. – San Antonio Apr.
4
We note that although Appellant never conceded this fact at trial, he now admits in at least two points in his brief that
he did in fact strangle his victim.
8
29, 2015, no. pet. h.) (mem. op., not designated for publication) (jury’s decision to reject
defendant’s claim of self-defense ultimately hinged on the credibility of the witnesses and the jury
was therefore free to reject the defendant’s version of what occurred at the time of the victim’s
death).
Moreover, at best, the evidence presented to the jury was conflicting on what happened the
night of the killing; the jury was free to resolve any conflicts in the evidence in favor of the State.
See, e.g., Thompson v. State, No. 05-12-00259-CR, 2014 WL 1477676, at *4 (Tex.App. – Dallas
Apr. 14, 2014, no pet.) (mem. op., not designated for publication) (where State presented evidence
that conflicted with the defendant’s version of the events, the jury was free to resolve any conflicts
in the evidence against the defendant and to reject the defendant’s claim of self-defense); Campa v.
State, No. 05-07-01210-CR, 2009 WL 1887123, at *5 (Tex.App. – Dallas July 2, 2009, pet. ref’d)
(not designated for publication) (jury was free to reject defendant’s claim of self-defense in favor
of the State’s evidence); see also Smith v. State, 355 S.W.3d 138, 146 (Tex.App. – Houston [1st
Dist.] 2011, pet. ref’d) (statement of appellant and his witnesses did not conclusively prove claim
of self-defense in light of other evidence presented by the State).
We conclude the record contained sufficient evidence from which a rational jury could
have rejected Appellant’s claim of self-defense, and accordingly, we overrule Appellant’s first
issue.
The Trial Court Properly Instructed the Jury that
Appellant did not have a Duty to Retreat
In Issue Two, Appellant contends the trial court’s instructions on the issue of self-defense
were erroneous, and deprived him of a fair trial because they improperly suggested to the jury that
9
he had a “general duty to retreat,” when no such duty existed under the revisions made to the
self-defense statute in 2007.
Standard of Review
The purpose of a jury charge is to instruct the jury on the law that applies to the case and to
“guide them in its application to the case[.]” Delgado v. State, 235 S.W.3d 244, 249
(Tex.Crim.App. 2007); see also TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007) (trial court
shall give jury “a written charge distinctly setting forth the law applicable to the case”). When
reviewing claims of jury charge error, we must first determine whether an error actually exists in
the charge. See Kirsch v. State, 357 S.W.3d 645, 649 (Tex.Crim.App. 2012); Barrios v. State,
283 S.W.3d 348, 350 (Tex.Crim.App. 2009). If error exists and appellant failed to object to the
charge, we will not reverse for jury charge error unless the record shows that the appellant suffered
egregious harm as a result of the error. Barrios, 283 S.W.3d at 350.
Invited Error
Initially, we note that it is unclear if Appellant is simply unhappy with the language used
by the trial court in its “no duty to retreat” instruction, or whether Appellant is contending that the
trial court should not have provided any instruction regardless of how it was worded. To the
extent that he is arguing the latter position, we believe Appellant is prohibited from raising this
issue on appeal. Appellant expressly asked the trial court to provide an instruction to the jury
regarding the law relating to “no duty to retreat.” A party cannot invite an error at trial and then
complain of it on appeal. See Tucker v. State, 771 S.W.2d 523, 534 (Tex.Crim.App. 1988);
Livingston v. State, 739 S.W.2d 311, 341 (Tex.Crim.App. 1987); Cadd v. State, 587 S.W.2d 736,
741 (Tex.Crim.App. 1979). Consequently, if a defendant requests a jury charge and that charge is
10
given as requested, he is in no position to complain of any error therein on appeal. Cadd, 587
S.W.2d at 741; see also McCray v. State, 861 S.W.2d 405, 409 (Tex.App. – Dallas 1993, no pet.);
Hargrove, 2012 WL 3553501, at *9 (where defendant requested instruction on “no duty to retreat”
provisions in the law, he could not be heard to complain of error in the instruction on appeal).
Although it does not appear that Appellant himself proposed the exact language to be
included in the “no duty to retreat” instruction, it is undisputed that Appellant did in fact ask the
trial court to provide an instruction of this nature, and he does not explain in his brief how he would
have preferred the instruction to be worded. In addition, we note that Appellant was given the
opportunity to review the jury charge, which contained the complained-of instruction, and
expressly advised the trial court that he had no objection to the charge. We will therefore limit
our review to determine if the charge correctly set out the law on the issue of “no duty to retreat.”
Applicable Law
Appellant points out that prior to 2007, the self-defense statute provided that in order to
establish a valid claim of self-defense, the defendant had to establish not only that the victim used
deadly force against him, but also that “a reasonable person in the [defendant’s] situation would
not have retreated” prior to using deadly force in response. TEX. PENAL CODE ANN. § 9.32(a)(2)
(West 2006).
Appellant correctly points out that this provision was deleted from the statute in 2007, and
in its place, the Texas Legislature enacted sections 9.32(c) and (d) to the Penal Code, which
provide that a person does not have a duty to retreat under the following circumstances:
(c) A person who has a right to be present at the location where the deadly force is
used, who has not provoked the person against whom the deadly force is used, and
who is not engaged in criminal activity at the time the deadly force is used is not
required to retreat before using deadly force as described by this section.
11
(d) For purposes of Subsection (a)(2), in determining whether an actor described by
Subsection (c) reasonably believed that the use of deadly force was necessary, a
finder of fact may not consider whether the actor failed to retreat. 5
In discussing this change in the law, the Court of Criminal Appeals explained in Morales v.
State that before 2007 it was appropriate to instruct a jury that the defendant must have
“reasonably believed that a reasonable person in the [defendant’s] situation would not have
retreated.” 357 S.W.3d 1, 4 (Tex.Crim.App. 2011). However, the Court noted, due to the 2007
revisions, trial courts should no longer submit jury instructions on the “general duty to retreat,”
because those instructions are no longer authorized by statute. Id. at 5.
In Morales, the trial court was apparently aware of the change in the law, and therefore
instructed the jury in accordance with the revised statute, but went on to give additional
instructions that required the jury to make a general determination whether the defendant had a
duty to retreat. See id. at 3, 5-6. The Court in Morales did not find any error in the portion of the
instruction that “tracked the current statute,” explaining that “[i]f a matter is contained within a
relevant statute, the trial judge may appropriately instruct the jury on the wording of the statute.”
Id. at 5. However, the Court concluded that it was error to provide additional instructions
regarding the defendant’s general duty to retreat, because those additional instructions were no
longer “authorized by statute” and “constituted [improper] comments on the weight of the
evidence.” Id. at 6.
Analysis
5
See Acts 2007, 80th Leg., ch. 1, § 3, eff. Sept. 1, 2007.
12
Although his argument is unclear, Appellant appears to cite Morales for the proposition
that the trial court’s instruction erroneously instructed the jury on the general duty to retreat and
constituted an improper comment on the weight of the evidence. Morales, however, is clearly
distinguishable from the present case. Here, the trial court did not give the jury an instruction on
the general duty to retreat; instead, the trial court gave the jury an instruction that mirrored the
revised statute on self-defense:
A person who has a right to be present at the location where the deadly force is used,
and has not provoked the person against whom the deadly force has been used and is
not engaged in criminal activity at the time the deadly force is used, is not required to
retreat before using deadly force as described. For the purpose of determining
whether the actor reasonably [believed] that deadly force was necessary, you may not
consider whether the actor failed to retreat.
Appellant appears to concede that this instruction tracked the exact language of the revised
self-defense statute; he complains without citation to authority, however, that the instruction may
have nevertheless somehow misled the jury into believing the defendant had a “general duty to
retreat” or that it somehow “focused the jury on a non-existent duty to retreat.”6 We disagree.
Our sister courts have rejected similar arguments challenging so-called “implied”
no-duty-to-retreat instructions given to a jury. For example, in Whitney v. State, 396 S.W.3d 696,
701–03 (Tex.App. – Fort Worth 2013, pet. ref’d), the court rejected the defendant’s argument that
the instruction errouneously “implied the existence of a non-existent duty” to retreat. The court
concluded that, even if the instruction somehow did imply the existence of a duty to retreat, it was
nevertheless a correct statement of the law, and “a trial court will not be held to have erred in its
6
Appellant also points out that the Court in Morales stated that an instruction should not be given where the
provisions do not apply under the terms of the statute, such as when the defendant provoked the victim, or when the
defendant was engaged in criminal activity at the time. Morales, 357 S.W.3d at 5. We do not, however, understand
Appellant to be contending that the benefits of the “no duty to retreat” language in the statute were not applicable to
him for these reasons, particularly in light of his request that the jury be instructed on this issue at trial.
13
jury charge by tracking the law as set out by the legislature.” Id. at 703; see also Russell v. State,
No. 03-12-00440-CR, 2014 WL 1572473, at *4 (Tex.App. – Austin April 18, 2014, pet. ref’d)
(mem. op., not designated for publication) (trial court’s instruction mirroring the 2007 revisions to
the self-defense statute regarding the “no duty to retreat” provision was an appropriate statement
of the law, and therefore not given in error).
In the present case, the trial court’s instruction on self-defense properly tracked the
language of the revised Penal Code, and did not include any additional instructions that would
have caused the jury to believe that Appellant had a general duty to retreat. We therefore find that
the trial court did not err in providing this instruction to the jury.7 Accordingly, Appellant’s
second issue is overruled.
The Trial Court Properly Refused to Provide Instructions on the Lesser-Included Offenses
of Manslaughter and Criminally Negligent Homicide
Appellant was charged with murder by “intentionally and knowingly” causing the death of
the victim, or alternatively, intentionally causing “serious bodily injury,” thereby resulting in her
death. At trial, Appellant requested jury instructions on the lesser-included offenses of
manslaughter and criminally negligent homicide, claiming the evidence raised the issues of
whether he acted either recklessly or with criminal negligence. Appellant asserted that his
videotaped confession constituted evidence that he acted recklessly or with criminal negligence
when he swung at the victim, causing her to fall backwards and hit her head. The trial court,
7
In his brief, Appellant makes a general one-sentence allegation that the jury charge did not properly apply the law on
the “doctrine of retreat” to the facts of the case, leaving the jury in a “state of confusion as to the application” of the
doctrine to the facts. Appellant, however, provides no explanation why he believes the charge would have confused
the jury, and cites no authority in support of this claim. Because appellant failed to properly brief this assertion, we
decline to address it. See TEX.R.APP. P. 38.1(i) (an appellate brief must “contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record”); Lucio v. State, 353 S.W.3d 873, 877-78
(Tex.Crim.App. 2011) (dismissing appellant’s issues because “his brief presents no authority in support of his
argument”).
14
however, disagreed with Appellant and declined to submit the instructions. In Issues Three and
Four, Appellant now contends that this ruling was in error.
Applicable Law
We conduct a two-step Aguilar/Rousseau analysis to determine whether the trial court
should have given the jury a lesser-included offense instruction. State v. Meru, 414 S.W.3d 159,
162 (Tex.Crim.App. 2013); Cavazos v. State, 382 S.W.3d 377, 382 (Tex.Crim.App. 2012). First,
we must determine as a matter of law whether the requested instruction is indeed a lesser-included
offense of the offense charged. Meru, 414 S.W.3d at 162; Cavazos, 382 S.W.3d at 382; Hall v.
State, 225 S.W.3d 524, 535 (Tex.Crim.App. 2007). To do this, we compare the elements of the
offense as alleged in the indictment with those of the requested lesser offense. Meru, 414 S.W.3d
at 162. This is a question of law that is independent of the evidence produced at trial. Rice v.
State, 333 S.W.3d 140, 144 (Tex.Crim.App. 2011); see also Meru, 414 S.W.3d at 162. Second, as
a question of fact, we must determine there is some evidence in the record that would permit a jury
to rationally find that, if the defendant is guilty, he is guilty only of the lesser offense. See Meru,
414 S.W.3d at 162–63 (citing Hall, 225 S.W.3d at 536); Guzman v. State, 188 S.W.3d 185, 188–89
(Tex.Crim.App. 2006).
“[A]nything more than a scintilla of evidence may be sufficient to entitle a defendant to a
charge on a lesser offense.” Cavazos, 382 S.W.3d at 385; see also Meru, 414 S.W.3d at 163.
Further, in determining whether the evidence presented at trial supported an instruction on a
lesser-included offense, a reviewing court may not consider whether the evidence presented was
“credible, controverted, or in conflict with other evidence.” Moore v. State, 969 S.W.2d 4, 8
(Tex.Crim.App. 1998).
15
Nevertheless, the evidence supporting an instruction on a lesser-included offense “must
still be directly germane to the lesser-included offense[.]” Cavazos, 382 S.W.3d at 385; see also
Hampton v. State, 109 S.W.3d 437, 441 (Tex.Crim.App. 2003) (evidence must be “directly
germane” to lesser-included offense before an instruction on a lesser-included offense is
warranted). Further, this “threshold requires more than mere speculation – it requires affirmative
evidence that both raises the lesser-included offense and rebuts or negates an element of the greater
offense.” Cavazos, 382 S.W.3d at 385.
Analysis
The State does not dispute that as a legal matter, both manslaughter and criminally
negligent homicide are lesser-included offenses of murder, and we agree. See Cavazos, 382
S.W.3d at 384 (manslaughter is a lesser-included offense of murder); Saunders v. State, 840
S.W.2d 390, 391 (Tex.Crim.App. 1992) (criminally negligent homicide is a lesser-included
offense of murder). As such, the only issue for our consideration is whether there was any
evidence presented at trial from which a rational jury could have found Appellant guilty of either
of the two lesser-included offenses, and not guilty of the greater offense of murder.
Murder is statutorily defined as intentionally or knowingly causing the death of another, or
alternatively, intentionally or knowingly causing serious bodily injury to another by committing an
“act clearly dangerous to human life,” resulting in that person’s death. TEX. PENAL CODE ANN. §
19.02 (West 2011). A person acts intentionally, or with intent, with respect to the nature of his
conduct or to a result of his conduct when it is his conscious objective or desire to engage in the
conduct or cause the result. Id. at § 6.03(a) (West 2011). A person acts knowingly when he is
16
aware of the nature of his conduct and that his conduct is reasonably certain to cause the result.
Id. at § 6.03(b).
Manslaughter is also statutorily defined, and requires a finding that the defendant
“recklessly cause[d] the death of an individual.” TEX. PENAL CODE ANN. § 19.04(a) (West 2011).
A person acts recklessly when he is aware of but consciously disregards a substantial and
unjustifiable risk that the result will occur. Id. at § 6.03(c). A person commits criminally
negligent homicide if he causes the death of an individual by criminal negligence. Id. at §
19.05(a) (West 2011). A person acts with criminal negligence when he ought to be aware of a
substantial and unjustifiable risk that the the result will occur. Id. at § 6.03(d).
In light of these definitions, in order for Appellant to have been entitled to an instruction on
either manslaughter or criminally negligent homicide, the record had to contain “some affirmative
evidence” that Appellant did not intend to kill or cause serious bodily injury to his victim, thereby
allowing a rational jury to find him not guilty of murder. In addition, there had to be “some
affirmative evidence” from which a rational juror could have concluded that Appellant had the
lesser mental state required for manslaughter or criminally negligent homicide, i.e., that he acted
either recklessly in conscious disregard of an unjustifiable risk that his conduct would cause the
victim’s death, or alternatively that he ought to have, but did not, perceive that his conduct would
result in the victim’s death. Cavazos, 382 S.W.3d at 385; see also Villalba v. State, No.
05-13-01661-CR, 2015 WL 1514453, at *4-7 (Tex.App. – Dallas Mar. 31, 2015, pet. ref’d) (mem.
op., not designated for publication).
In attempting to meet this standard, Appellant relies almost exclusively on the statements
he made to the detective during his videotaped confession. In particular, Appellant points out that
17
he stated that he killed the victim unintentionally or by accident, which he believes negated the
“mens rea required for murder[.]” In addition, Appellant points out that during his confession, he
described a scenario in which he allegedly “struck” the victim, causing her to fall backwards and
hit her head on a dresser. According to Appellant, this description of the events, coupled with his
statement that the victim died by accident, tended to show by a scintilla of evidence that his
conduct was that of a person who either ignored or overlooked a substantial risk that his conduct
might cause the victim’s death, thereby raising both manslaughter and criminally negligent
homicide.
Initially, we note that numerous courts have held that a defendant’s statement that he did
not intend to kill or cause his victim serious bodily injury, standing alone, does not raise the issue
of manslaughter or criminally negligent homicide. See, e.g., Arnold v. State, 234 S.W.3d 664,
672 (Tex.App. – Houston [14th Dist.] 2007, no pet.); Ventura v. State, No. 05-99-01745-CR, 2001
WL 541090, at *5-6 (Tex.App. – Dallas May 23, 2001, pet. ref’d) (not designated for publication).
As the Court of Criminal Appeals noted in Godsey v. State, 719 S.W.2d 578, 584 (Tex.Crim.App.
1986), a statement that a defendant did not intend to kill the victim “cannot be plucked out of the
record and examined in a vacuum.” Instead, regardless of any statements made by the defendant
on the issue of his intent, the entire record must still be reviewed to determine if a rational trier of
fact could have concluded that the defendant did not in fact act intentionally. Mathis v. State, 67
S.W.3d 918, 926 (Tex.Crim.App. 2002).
In conducting this review, numerous courts have held that when the record demonstrates a
defendant committed an act that was “clearly dangerous to human life,” such as shooting a victim
at point blank range or stabbing a victim in the throat, the evidence will not rationally support a
18
finding that the defendant acted recklessly or negligently, even in light of the defendant’s
testimony that he did not intend to kill his victim. See, e.g., Cavazos, 382 S.W.3d at 385 (where
evidence revealed that the defendant pointed a loaded gun at his victim, pulled the trigger twice,
and then fled the scene, no rational jury could have concluded that his conduct was merely
reckless, despite the defendant’s testimony that he did not intend to kill his victim); Mathis, 67
S.W.3d at 926 (where evidence revealed that the defendant walked into an apartment and fired a
high-powered rifle at three separate victims, no rational juror could have concluded that defendant
was guilty only of manslaughter and not murder, despite the defendant’s claim that his conduct
was not intentional); Forest v. State, 989 S.W.2d 365, 368 (Tex.Crim.App. 1999) (defendant’s act
of shooting a victim in the buttocks was “clearly dangerous to human life,” and defendant’s
testimony that he did not intend to kill his victim was insufficient to warrant an instruction on the
lesser-included offense of manslaughter).8
Our review of the record in the present case indicates that Appellant similarly engaged in
conduct that was “clearly dangerous to human life.” Appellant not only admitted in his
8
See also Wesbrook v. State, 29 S.W.3d 103, 113-14 (Tex.Crim.App. 2000) (given the state of the entire record,
which established that appellant shot multiple victims at close range, appellant’s statement that he did not intend to kill
his victims was not evidence from which a jury could have rationally concluded that appellant was only guilty of
aggravated assault); Godsey, 719 S.W.2d at 584-85 (appellant’s statement that he did not intent to kill his victim did
not warrant a lesser-included instruction on aggravated assault or reckless conduct where the appellant pointed a
loaded gun directly at a group of police officers, thereby manifesting “only the intent to kill the officer” and not to
merely act recklessly or in a threatening manner); King v. State, No. 05-12-00842-CR, 2014 WL 310113, at *5-8
(Tex.App. – Dallas Jan. 28, 2014, pet. ref’d) (mem. op., not designated for publication) (no rational jury could have
found defendant’s conduct was reckless, where the defendant fired a gun multiple times at a bank guard, despite the
defendant’s claim that he was in a “confused” state of mind at the time of the killing); Nevaraz v. State, 270 S.W.3d
691, 694-95 (Tex.App. – Amarillo 2008, no pet.) (defendant’s claim that he accidentally stabbed his victim did not
warrant a manslaughter instruction); Arnold, 234 S.W.3d at 670-71 (where the record indicated that the defendant
pointed a gun directly at his victim and shot him at close range, the defendant’s statements that he did not intend to kill
the victim did not constitute evidence upon which a jury could have rationally found that the defendant’s actions were
merely reckless); Martinez v. State, 16 S.W.3d 845, 848 (Tex.App. – Houston [1st Dist.] 2000, pet. ref’d) (where
defendant stabbed his victim and cut his throat, his conduct was “clearly dangerous to human life,” and his testimony
that he did not intend to kill his victim was not sufficient evidence to warrant an instruction on manslaughter); see also
Ventura, 2001 WL 541090, at *5-6 (defendant’s act of firing five shots at his victims were clearly intentional acts, and
defendant was therefore not entitled to an instruction on either manslaughter or criminally negligent homicide, despite
his claim at trial that he was unaware that his shots had hit anyone).
19
videotaped confession to swinging multiple times at his victim, who he acknowledges was much
smaller than him, but the virtually unrefuted evidence at trial established that Appellant thereafter
strangled his victim with a belt, a fact that he appears to be now willing to acknowledge on appeal.
Further, the physical evidence established that the victim did not die from, or even suffer, a head
injury, but rather from being strangled by a belt. Just as no rational jury could determine that
shooting a victim at close range or stabbing a victim in the throat are acts of mere recklessness or
negligence, we similarly believe that no rational jury could find that strangling a victim with a belt
was an act that was merely reckless or negligent. Therefore, despite any statements in the record
from Appellant disavowing his intent to kill or seriously injure the victim, we conclude there was
no “affirmative” evidence presented at trial that warranted instructions on the lesser-included
offenses of either manslaughter or criminally negligent homicide.
Moreover, Appellant did not focus at trial on whether his conduct was merely reckless or
negligent. Instead, in both his opening and closing arguments, Appellant’s counsel focused
almost exclusively on the claim that Appellant acted in self-defense after the victim “attacked”
him, and counsel repeatedly asked the jury to acquit Appellant for that reason. Appellant also
requested and received a jury instruction on the issue of self-defense.
A claim of self-defense is incompatible with a claim of recklessness or negligence. In
order to raise a claim of self-defense, a defendant must admit to the underlying criminal act and its
culpable mental state, and then raise the defense as justification for his conduct. See, e.g.,
Carrasco-Flores v. State, No. 08-13-00232-CR, 2015 WL 2357631, at *6 (Tex.App. – El Paso
May 14, 2015, no. pet. h.) (not designated for publication) (defendant who contends that victim
was injured by accident has not confessed to elements of the offense and cannot raise self-defense)
20
(citing Shaw v. State, 243 S.W.3d 647, 657–58 (Tex.Crim.App. 2007), and Ex parte Nailor, 149
S.W.3d 125, 133 (Tex.Crim.App. 2004)). Therefore, in a long line of cases, the courts have
concluded that raising self-defense in a murder trial, and thereby impliedly admitting that the
conduct was intentional, is “inconsistent with a claim that the defendant acted only recklessly,”
thereby precluding an instruction on the lesser-included offenses of manslaughter and criminally
negligent homicide.9 See, e.g., Montemayer v. State, No. 14-13-01045-CR, 2015 WL 1928738, at
*1-3 (Tex.App. – Houston [14th Dist.] Apr. 28, 2015, no. pet. h.) (mem. op., not designated for
publication) (where defendant testified that he shot his victim in self-defense, the trial court
properly refused to give an instruction on manslaughter); Nevarez v. State, 270 S.W.3d 691,
694-95 (Tex.App. – Amarillo 2008, no pet.) (where defendant in murder trial admitted
purposefulness of actions that led to death and argued self-defense, he was not entitled to
manslaughter charge); Martinez, 16 S.W.3d at 845 (where defendant testified that he acted in
self-defense, the trial court properly refused to give manslaughter instruction); Huerta, 2008 WL
4603473, at *2-4 (appellant’s testimony that he shot at his victim in self-defense precludes an
instruction on an accidental or reckless murder, as one cannot accidentally or recklessly act in
self-defense); Avila v. State, 954 S.W.2d 830, 843 (Tex.App. – El Paso 1997, pet. ref’d)
(defendant’s claim that he acted in self-defense precluded an instruction on reckless discharge of a
weapon, as one cannot act accidentally or recklessly in self-defense); Johnson v. State, 915 S.W.2d
653, 659-60 (Tex.App. – Houston [14th Dist.] 1996, pet. ref’d) (where defendant testified that he
9
In Alonzo v. State, 353 S.W.3d 778 (Tex.Crim.App. 2011), the Court of Criminal Appeals cited this line of cases,
recognizing that the courts in Nevaraz, Martinez, and Avila all concluded that the defendants therein were not entitled
to manslaughter instructions because they claimed at trial they had “acted intentionally in self-defense, not merely
recklessly.” Although the Court in Alonzo found these cases inapplicable to the situation it was considering, the
Court nevertheless expressly stated that it was not calling these cases “into question.” Id. at 782.
21
acted in self-defense, the trial court properly refused to give instructions on lesser-included
offenses involving elements of recklessness and criminal negligence).
Accordingly, we conclude that by affirmatively raising the issue of self-defense at trial,
Appellant impliedly admitted that he acted intentionally in causing the victim’s death, and was
thereby precluded from receiving an instruction on the lesser-included offenses of manslaughter
and criminally negligent homicide. Issues Three and Four are overruled.
Sufficient Evidence Supported the Jury’s Finding that
Appellant Did Not Act with “Sudden Passion”
In his fifth and sixth issues, Appellant contends the evidence was both factually and legally
insufficient to support the jury’s affirmative rejection of his claim that he did not act with “sudden
passion” when he killed the victim during their altercation.
Standard of Review
The Court of Criminal Appeals recently discussed the standard of review courts should
apply when analyzing challenges to the legal and factual sufficiency of an affirmative defense.
Butcher v. State, 454 S.W.3d 13, 20 (Tex.Crim.App. 2015). In Butcher, the Court clarified that
although it had abolished factual-sufficiency review as it applies to criminal convictions in Brooks
v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010), “[a]ffirmative defenses may be evaluated for
[both] legal and factual sufficiency[.]” Butcher, 454 S.W.3d at 20.
In a legal-sufficiency review of an affirmative defense, the Court explained, “reviewing
courts should first assay the record for a scintilla of evidence favorable to the factfinder’s finding
and disregard all evidence to the contrary unless a reasonable factfinder could not.” Id. (citing
Matlock v. State, 392 S.W.3d 662, 669–70 (Tex.Crim.App. 2013)). In a review of this nature, a
jury’s rejection of a defendant’s affirmative defense “should be overturned for lack of legal
22
sufficiency only if the appealing party establishes that the evidence conclusively proves his
affirmative defense, and ‘no reasonable [factfinder] was free to think otherwise.’” Id. (citing
Matlock, 392 S.W.3d at 670).
When examining the factual sufficiency of a jury’s rejection of an affirmative defense,
however, an appellant court must examine the evidence in a neutral light, but may only overrule a
jury’s verdict if it is against the “great weight of the evidence as to be manifestly unjust,
conscience-shocking, or clearly biased.” Id. In conducting this review, the reviewing court must
not usurp the function of the jury by substituting its judgment in place of the jury’s assessment of
the weight and credibility of the witnesses’ testimony, and must instead give deference to a jury’s
determination of those issues. Matlock, 392 S.W.3d at 671; see also Johnson v. State, 23 S.W.3d
1, 9 (Tex.Crim.App. 2000).
Applicable Law
At the punishment stage of a murder trial, a defendant may raise the issue whether he
caused the death of his victim under the “immediate influence of sudden passion arising from an
adequate cause.” If the defendant proves sudden passion by a preponderance of the evidence, the
offense of murder is punished as a second-degree felony, rather than as a first-degree felony.
TEX. PENAL CODE ANN. § 19.02(d) (West 2011); see also McKinney v. State, 179 S.W.3d 565, 569
(Tex.Crim.App. 2005) (sudden passion is a mitigating circumstance that, if found by the jury to
have been proven by a preponderance of the evidence, reduces the offense from a first degree
felony to a second degree felony); Wooten v. State, 400 S.W.3d 601, 605 (Tex.Crim.App. 2013).
The Code defines “[s]udden passion” as “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
23
solely the result of former provocation.” TEX. PENAL CODE ANN. § 19.02(a)(2). The Code
defines “[a]dequate cause” as a “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. at § 19.02(a)(1).
“‘Sudden passion’ requires first that the record contain objective evidence that direct
provocation by the victim or someone acting with the victim occurred at the time of the killing.”
Naasz v. State, 974 S.W.2d 418, 423-24 (Tex.App. – Dallas 1998, pet. ref’d) (citing Merchant v.
State, 810 S.W.2d 305, 310 (Tex.App. – Dallas 1991, pet. ref’d)). Evidence of “prior
provocation” alone is not enough; the provocation must be of such a nature that it elicits more than
merely “ordinary anger.” Id. The record must also contain evidence from which the jury could
subjectively decide that the defendant killed the victim while in an “excited and agitated state of
mind arising out of the direct provocation.” Id. at 424.
Analysis
Appellant claims the evidence established that the victim adequately provoked him when
she became “very angry” with him during their argument, “attacked him with her fists,” “beat
[him] with her fists,” and “threaten[ed] to taser him.” According to Appellant, the evidence also
demonstrated that the victim’s conduct caused him to “fear[] for his life,” as he knew the victim
had a “violent character.” Appellant further claims that the evidence demonstrated that after he
was provoked by the victim, he “erupted and struck [the victim] back and strangled her with a
belt,” and that there was “strong evidence that rage and terror existed in [his] mind . . . at the time
he first struck [the victim] all the way through the moments it took to strangle her.”
24
Appellant contends that under this set of facts, no rational jury could have concluded that
there was insufficient provocation to cause an ordinary person to be incapable of cool reflection,
and he therefore asserts that the evidence was legally insufficient to support the jury’s rejection of
his claim of sudden passion. Again relying on this same set of facts, Appellant also claims that
the jury’s rejection of his sudden passion defense was against the great weight of the evidence, and
was therefore factually insufficient to support the jury’s verdict. We disagree with both
arguments.
Initially, we note that Appellant’s summary of the facts is without citation to the record,
and he has taken great liberty in his characterization of the evidence. As there were no other
witnesses to the altercation, and Appellant did not testify at trial, we must presume that Appellant
is basing his factual summary on the statements he made in his videotaped confession. However,
Appellant never stated during his confession that the victim “beat Appellant with her fists,” and
there is no evidence in the record to establish that the victim even made contact with Appellant
when she swung at him. In addition, Appellant never stated that the victim made any immediate
threat to “taser” him; instead, Appellant stated only that the victim threatened to return at an
unspecified future time and bring a Taser with her. Moreover, Appellant never expressed that he
was in a state of “terror” or “rage” during the altercation, and Appellant fails to point to any
“strong evidence” in the record to suggest that he was in any such emotional state when he killed
the victim.10
10
It is well-settled that “[a]ssertions in an appellate brief that are unsupported by the record will not be accepted as
fact” by a reviewing court. Ex parte Preston, 833 S.W.2d 515, 519 (Tex.Crim.App. 1992)(op. on reh’g); see also
Ramirez v. State, No. 08-05-00386-CR, 2007 WL 1792961, at *1 (Tex.App. – El Paso June 21, 2007, no pet.) (not
designated for publication ) (court will not consider statements made in party’s pleadings or correspondence that are
not supported by appellate record).
25
At most, Appellant’s videotaped confession provided evidence that the victim became
angry with Appellant, threatened to return with a “Taser,” and then swung at him. Appellant
provided no evidence that the victim, who he acknowledges was much smaller than him,
threatened him with a weapon, or engaged in any other threatening or provoking conduct. Under
this set of facts, the jury was clearly free to conclude that the victim’s conduct was not of such a
nature that it would have produced the requisite degree of “anger, range, resentment or terror” in a
reasonable person; instead, the jury could have believed the victim’s conduct would have, at most,
produced an “ordinary level” of anger or fear in a reasonable person under these circumstances.
See Castellano v. State, No. 01-14-00486-CR, 2015 WL 3981807, at *2 (Tex.App. – Houston [1st
Dist.] June 30, 2015, no. pet. h.) (mem. op., not designated for publication) (jury was free to reject
defendant’s claim of sudden passion where the only evidence presented at trial suggested that the
victim had yelled at the defendant, called him names, and attempted to strike him with her fists
before defendant strangled his victim); see also McKinney v. State, 179 S.W.3d 565, 570
(Tex.Crim.App. 2005) (yelling and pushing do not constitute adequate cause sufficient to raise
issue of sudden passion).
In addition, although the jury could have inferred from the statements made by Appellant
in his videotaped confession that he was in some state of fear when the victim swung at him during
their altercation, there was no evidence presented at trial to suggest that Appellant’s level of fear
was such that he was “incapable of cool reflection” when he reacted by striking and later strangling
his victim. A “mere claim of fear” by a defendant does not, standing alone, establish the existence
of sudden passion arising from an adequate cause. See Gonzales v. State, 717 S.W.2d 355, 357
(Tex.Crim.App. 1986) (citing Daniels v. State, 645 S.W.2d 459 (Tex.Crim.App. 1983)); see also
26
Latham v. State, No. 12-05-00146-CR, 2006 WL 2065334, at *7 (Tex.App. – Tyler July 26, 2006,
no pet. h.) (mem. op., not designated for publication) (despite defendant’s testimony that he was
“scared and terrified” of the victim, the jury was still free to reject his claim of sudden passion, as
the jury could have rationally concluded that the defendant was not telling the truth or that his
“terror” was objectively unreasonable). In fact without more, a trial court is justified in refusing
to give the jury an instruction on sudden passion. See Gonzales, 717 S.W.2d at 357; see also
Villalba, 2015 WL 1514453, at *4-7 (defendant’s testimony that he felt “kind of frightened” by the
victim’s conduct did not raise the issue of sudden passion, and therefore court acted properly in
refusing to instruct the jury on the issue).
In the present case, despite the weak nature of the evidence presented at trial, Appellant
was given the benefit of a jury instruction on the issue of sudden passion, and the jury simply
rejected his claim. Based on our review of the record, we conclude that the jury’s rejection of
Appellant’s claim of sudden passion was both factually and legally supported by the evidence, and
we therefore overrule Appellant’s fifth and sixth points of error.
The Trial Court Properly Instructed the Jury that its Verdict
on Sudden Passion had to be Unanimous
In his final issue, Appellant contends the trial court erroneously charged the jury on sudden
passion by failing to instruct the jury that its verdict on sudden passion must be unanimous, and
because the “verdict form[s]” on this issue were “wrong” as well.11
Analysis of the Jury’s Charge
11
As previously discussed above, when reviewing claims of jury charge error, we first determine whether an error
actually exists in the charge. If error exists, and the defendant made no objection at trial, we will not reverse for jury
charge error unless the record shows appellant suffered egregious harm as a result of the error.
27
As discussed above, during the punishment phase of Appellant’s trial, the trial court
provided the jury with an instruction on the affirmative defensive of “sudden passion.” The
charge correctly apprised the jury of the statutory definition, and further advised the jury that if it
believed Appellant proved by a preponderance of the evidence that he acted “under the immediate
influence of sudden passion arising from an adequate cause,” it was required to make an
affirmative finding on that issue. The court also instructed the jury that if it did not believe
Appellant proved by a preponderance of the evidence that he acted under the influence of sudden
passion, it was required to make a negative finding on that issue. After instructing the jury that it
was also required to make affirmative findings on the State’s enhancement allegations as well, the
trial court concluded its charge by instructing the jury that its verdict on punishment “must be
unanimous.”
Appellant did not object to the jury charge at trial. He now claims the charge was
erroneous because it failed to specifically instruct the jury that its verdict on sudden passion had to
be unanimous. In this regard, Appellant cites Sanchez v. State, 23 S.W.3d 30 (Tex.Crim.App.
2000), for the proposition that a jury’s verdict on the issue of sudden passion must be unanimous,
and claims that the trial court’s failure to instruct the jury on the unanimity requirement deprived
him of a “fair trial.”
We agree with Appellant that Sanchez stands for the proposition that a jury’s verdict on
sudden passion must be unanimous. His reliance on Sanchez is otherwise misplaced, however.
In Sanchez, the trial court had given the jury an instruction indicating that its verdict had to be
unanimous if it found in favor of the defendant on the issue of sudden passion, but the instruction
erroneously indicated that the jury did not have to reach a unanimous verdict if it chose to enter a
28
negative finding on the issue. Further, a poll of the jury in Sanchez revealed that three of the
jurors had wanted to find in the defendant’s favor on the issue of sudden passion, but because of
the trial court’s instructions, the majority prevailed, and the jury found against the defendant on a
less than unanimous basis. Id. at 32.
Although the defendant in Sanchez had not objected to the charge at trial, the court of
appeals concluded that the defendant was entitled to a new punishment hearing, as the trial court’s
erroneous charge clearly deprived the defendant of his right to a unanimous verdict, and resulted in
egregious harm to the defendant, particularly in light of the jury poll indicating that the verdict was
in fact decided on a less than unanimous basis. Id. at 33. The Court of Criminal Appeals
affirmed the appellate court’s decision, agreeing that the erroneous jury charge deprived the
defendant of his right to a unanimous verdict, warranting a new punishment hearing. Id. at 34; see
also Bradshaw v. State, 244 S.W.3d 490, 497 (Tex.App. – Texarkana 2007, pet. ref’d) (finding
similarly worded jury instruction erroneous).
In the present case, however, the trial court’s jury charge did not suffer from a similar
defect, and in no way misled the jury on the issue of jury unanimity. Instead, the jury charge
properly informed the jury that its verdict had to be unanimous, but simply did so at the end of the
charge in general terms, rather than when instructing the jury on the specific issue of sudden
passion. In addition, the trial court reminded the jury before it retired to the jury room to
deliberate punishment, that its verdict had to be unanimous.12 Moreover, after the jury announced
its sentence, the presiding judge affirmed that its verdict was unanimous, and there is nothing in
12
Before the jury began its deliberations on punishment, the trial court stated: “I wish you good luck in your efforts to
achieve your unanimous verdict in this case.”
29
the record to suggest that the verdict was entered on less than a unanimous basis as it was in the
Sanchez case.
We also note that several other courts addressing this same issue have held that it is not
error for a court to wait until the end of a jury charge to inform the jury that its entire verdict must
be unanimous, and that it is not necessary for the trial court to also specifically recite that the
verdict on the issue of sudden passion must be unanimous. See, e.g., Barfield v. State, 202
S.W.3d 912, 918 (Tex.App. – Texarkana, 2006, pet. ref’d) (jury was not misinformed on jury
unanimity in finding sudden passion, but to the contrary, the court’s general instruction
“appropriately guaranteed a unanimous finding on the sudden passion issue”); see also Cartier v.
State, 58 S.W.3d 756, 760 (Tex.App. – Amarillo 2001, pet. ref’d) (jury charge was not
fundamentally flawed where it provided a general instruction on jury unanimity, even though it did
not expressly instruct the jury that its finding on sudden passion had to be unanimous); Latham,
2006 WL 2065334, at *8 (concluding there was no error where the trial court’s charge did not
specifically recite that the jury’s determination on sudden passion had to be unanimous, but
properly gave a general instruction on jury unanimity); Campa, 2009 WL 1887123, at *6-7
(same).
Because the jury’s charge in the present case similarly informed the jury that its verdict had
to be unanimous, and because the jury charge did not permit the jury to decide the issue of sudden
passion on less than a unanimous verdict, we find no error in the jury charge.
Analysis of the Verdict Forms
Although his argument is somewhat unclear, Appellant also criticizes the verdict forms
utilized by the trial court, contending that they were “wrong” because they did not require the jury
30
to expressly make a “yes or no” finding on the issue of sudden passion. We conclude the verdict
forms that were utilized adequately ensured that the jury made an affirmative finding on the issue
of sudden passion.
The verdict forms on punishment were broken into two sets. The first set was labeled,
“Verdict Forms if the Answer to the Special Issue of Sudden Passion True, Use the Following
Verdict Forms.” This first set of forms required the jury to make findings regarding the
enhancement allegations, and to assess punishment against Appellant within the range available
for second degree felonies (as would be required if the jury found sudden passion to be true). The
second set of forms was labeled, “Verdict Forms if you find the Special Issue of Sudden Passion
Not True.” This second set of forms required the jury to make findings regarding the
enhancement allegations, and to assess punishment against Appellant within the range available
for first degree felonies (as would be required if the jury found sudden passion not true). Both
sets of forms indicated that the jury’s verdict had to be unanimous with regard to the enhancement
allegations, but did not indicate that they were required to make a unanimous finding with respect
to the sudden passion issue. The presiding juror signed the verdict form in the second set, labeled
“Sudden Passion Issue Not True,” stating that the jury had unanimously found both enhancements
to be true, and that they were assessing Appellant’s sentence at life in prison.
While these forms did not expressly require the jury to write that its finding on the sudden
passion issue was true or not true, the jury was required to select between the two sets of verdict
forms based on whether “the Answer to the Special Issue of Sudden Passion [was] True” or “Not
True.” The selection process therefore required the jury to make an “affirmative finding” on the
issue of Appellant’s claim of sudden passion. Since the jury was also instructed in the jury charge
31
that it was required to make an affirmative finding on sudden passion, we cannot conclude that the
jury was in any way confused about its duty to make this finding. Further, by using the second set
of verdict forms, labeled as “Sudden Passion Issue Not True” when entering the sentence in
Appellant’s case, there can be little doubt that the jury made an affirmative finding of “not true” on
this issue. We therefore overrule Appellant’s seventh issue.
Reformation of Error in the Judgment
The trial court’s judgment currently reflects the notation “N/A” regarding Appellant’s plea
and the jury’s findings to the two enhancement paragraphs. The reporter’s record, however,
reveals that Appellant pleaded “not true” to the State’s notice of enhancements, and that the jury
made “true” findings as to both enhancement paragraphs. An appellate court is authorized to
reform or modify the judgment to conform to the record of the proceedings and to render an
appropriate judgment, in accordance with its authority under Rule 43.2 of the Texas Rules of
Appellant Procedure. See French v. State, 830 S.W.2d 607, 609 (Tex.Crim.App. 1992) (appellate
court has authority to reform a judgment to include an affirmative finding to make the record speak
the truth when the matter has been called to its attention by any source); Bigley v. State, 865
S.W.2d 26, 27–28 (Tex.Crim.App. 1993) (appellate court has the power to modify incorrect
judgments when the necessary data and information are available to do so). We therefore modify
the trial court’s written judgment to reflect Appellant’s pleas of “not true” to the State’s notice of
enhancements, and the jury’s “true” enhancement findings to the two enhancement paragraphs.
TEX.R.APP.P. 43.2(b).
CONCLUSION
32
The trial court’s judgment as modified is affirmed. The trial court certified Appellant’s
right to appeal in this case, but the certification does not bear Appellant’s signature indicating that
he was informed of his rights to appeal and file a pro se petition for discretionary review with the
Texas Court of Criminal Appeals. See TEX.R.APP.P. 25.2(d). The certification is defective. To
remedy this defect, this Court ORDERS Appellant’s attorney, pursuant to TEX.R.APP.P. 48.4, to
send Appellant a copy of this opinion and this Court’s judgment, to notify Appellant of his right to
file a pro se petition for discretionary review, and to inform Appellant of the applicable deadlines.
See TEX.R.APP.P. 48.4, 68. Appellant’s attorney is further ORDERED to comply with all of the
requirements of TEX.R.APP.P. 48.4.
STEVEN L. HUGHES, Justice
October 21, 2015
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Do Not Publish)
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