Wagner v. State

OPINION ON APPELLANT’S MOTION FOR REHEARING

CLINTON, Judge.

We granted rehearing in order to reexamine the last two contentions raised by appellant and discussed in a panel opinion on original submission, viz: that evidence of appellant’s physical condition at the time of the offense should have been admitted on the issue of intent, and that an unqualified reputation witness was allowed to testify at the punishment hearing.

In his bill of exceptions appellant introduced an electroencephalograph report and skull x-rays of appellant dated June 20, 1978, approximately three months prior to the commission of the offense. Dr. William Bryant, a radiologist at Orange Memorial Hospital testified that the x-rays show shotgun pellets projected over a region of *310appellant’s head. He also noted an enlargement of the frontal sinuses. Bryant stated he could not be sure, but he did not believe the pellets had penetrated into appellant's brain.1 He testified that enlargement of the sinuses might signal atrophy of the brain, but that a number of things could cause such an enlargement and further study was needed. Dr. Wallace Norton, a phychiatrist who examined appellant, testified that enlargement of sinuses is sometimes associated with deterioration of the frontal lobes, which areas, if impaired, could affect impulse control. Wallace stated that based on his contact with appellant, he concluded appellant was not insane but that neurological or functional impairment of specific areas of the brain was possible. While he was aware of what was. happening around him, appellant’s emotional contact appeared to Norton to be “a little bit displaced.”2

On original submission the panel concluded that appellant’s reliance on Cowles v. State, 510 S.W.2d 608 (Tex.Cr.App.1974) was misplaced. Because the trial court charged the jury that it must find appellant “intentionally or knowingly” caused the death of the victim, specific intent was not in issue, and therefore the exception to the rule announced in Cowles v. State, supra, could not be invoked.3 This is so because the jury was authorized to convict appellant if it found he knowingly caused the victim’s death. See Womble v. State, 618 S.W.2d 59 (Tex.Cr.App.1981).

However, appellant correctly points out in his motion for rehearing that the trial court charged conjunctively rather than disjunctively as to the culpable mental state in the paragraph applying the law to the facts. The jury was instructed that it could convict appellant if it found he “knowingly and intentionally” caused the victim’s death. Sufficient proof of both mental states was therefore required for conviction. Cf. Ortega v. State, 668 S.W.2d 701 (Tex.Cr.App.1983); Wagner v. State, 544 S.W.2d 143 (Tex.Cr.App.1976). While it is true that “[pjroof of a higher degree of culpability than that charged constitutes proof of the culpability charged [,]” V.A.P.C., § 6.02(e), so that “knowledge” per se did not necessarily have to be proved, we are constrained to hold that the court’s charge in fact placed the burden on *311the State to prove intent beyond a reasonable doubt.

Nevertheless we decline to accept appellant’s argument that because intent was an issue in the case, evidence of possible impairment of mental functions was admissible at the guilt phase of the trial.

Appellant invokes the dicta set out in Cowles v. State, supra, at 610, that “where specific intent is an element of the offense for which the accused is being tried, as in different degrees of murder and the ‘with intent’ crimes [,]” evidence of mental impairment which does not rise to the level of insanity is nevertheless admissible to negate the specific intent and so reduce the magnitude of the crime. As stated in 22 A.L.R.3d 1228, to which both appellant and the State draw our attention:

“[S]everal states have adopted the so-called theory of diminished responsibility. This theory is that since certain crimes, by definition, require the existence of a specific intent, any evidence relevant to the existence of that intent, including evidence of an abnormal mental condition not constituting legal insanity, is competent for the purpose of negativing that intent. Although the doctrine is often referred to as the doctrine of ‘diminished responsibility,’ the actual purpose of such evidence is to establish, by negating the requisite intent for a higher degree of offense, that in fact a lesser degree of the offense was committed.”

Id,., § 5, at 1238.

Many jurisdictions that recognize different degrees of murder based upon whether or not “deliberation” and “premeditation” are present will admit evidence of abnormal mental capability where it may contribute to a reduction from first to second degree murder. Id., § 7, at 1246. However, V.A.P.C., § 19.02 recognizes no such “degrees” of murder. Hence, the doctrine of diminished responsibility will not justify admission of appellant’s proffered evidence to establish a lesser “degree” of murder.

Other jurisdictions have held evidence of abnormal mental capability not amounting to insanity admissible to negate the element of malice aforethought. 22 A.L.R.3d, § 8, at 1252. Though malice aforethought is also not an express element under § 19.02, supra, we have held that when “sudden passion arising from an adequate cause,” see V.A.P.C., § 19.04, is raised as an issue in a murder prosecution, it will function “in the nature of a defense to murder that reduces the offense to voluntary manslaughter.” Braudrick v. State, 572 S.W.2d 709, 710 (Tex.Cr.App.1978). Were we to find that appellant’s proffered evidence contributed to a showing of “sudden passion arising from an adequate cause,” the doctrine of diminished responsibility would mandate that the evidence be admitted. However, the evidence presented in appellant’s bill of exceptions did nothing to advance this issue.

The import of appellant’s proffered evidence is that the injury to his head possibly affects his impulse control, and that he seems to lack emotional contact with his surroundings. All that can be inferred from this evidence is that appellant may be more susceptible than the normal person to acting under the influence of a suddent passion. It does not further the proposition that appellant did in fact act under the influence of such a passion on the night of the offense.

Furthermore, introduction of such evidence would only confuse the jury in seeking to apply the charge on voluntary manslaughter that was given by the trial court. The court charged:

“ ‘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.” 4

See § 19.04(c), supra. As previously observed, the thrust of the evidence pertain*312ing to appellant’s head injury is that he is not a person of ordinary temper. The statutory definition of voluntary manslaughter does not contemplate what would constitute adequate cause from the perspective of an individual whose impulse control is impaired. See Hobson v. State, 644 S.W.2d 473, 478 (Tex.Cr.App.1983). Lack of normal impulse control is simply not a circumstance recognized by the Legislature to diminish the criminal responsibility of an accused or reduce his crime to a lesser included offense.

We therefore find that, the issue of appellant’s sanity having been taken out of the case, appellant’s proffered evidence was not material on the issue of his guilt, and its introduction at the guilt phase at trial would only have confused the jury— the very evil sought to be averted in Cowles v. State, supra. The trial court did not err in refusing to admit this evidence and the panel was correct in overruling appellant’s contention in this regard on original submission.5

Appellant also argues that his conviction should be reversed because the trial court erroneously admitted the testimony of Officer Ray Long at the punishment phase of the trial. Long testified, in essence, that he was a Patrol Sergeant with the Orange Police Department, that he had “known of” appellant for approximately two months, and that he knew appellant’s reputation in the community for being a peaceable and lawabiding citizen to be bad. Prior to so testifying, Long was taken on voir dire by appellant, wherein it was established that the basis for his knowledge of appellant’s reputation was a discussion with Charles Gans. The voir dire is substantially set out in our opinion on original submission and will not be reproduced here.

However, we do think it necessary to place Long’s voir dire testimony in context. Appellant was found guilty of the shooting death of Laura D. Smith. The shooting occurred on the night of September 28, 1978, when appellant forced his way into the home of the deceased in an effort to see her daughter, Willie Etta Smith. Though not married to appellant, Willie Etta Smith had borne one child and miscarried another by him. There was evidence that a few days prior to the offense, Willie Etta Smith and appellant had taken a blood test preparatory to getting married, though Smith testified that her participation in this was coerced. Sometime after the offense was committed, and after Willie Etta Smith had married Charles Gans, appellant apparently threatened their lives. Long testified on voir dire that it was Gans’ communication of this particular threat which constituted the sole foundation for his knowledge of appellant’s reputation.

On original submission this ground of error was overruled in reliance on Crawford v. State, 480 S.W.2d 724 (Tex.Cr.App.1972), wherein it is said that “[ajlthough the officers could not testify to specific acts, it is not improper for them to discuss specific acts with other persons as a basis for determining what appellant’s reputation is in the community.” Id., at 726-727. It is clear from the context of Crawford *313and the case cited as authority therein, see Frison v. State, 473 S.W.2d 479 (Tex.Cr.App.1971), that the testimony of the police officers in those cases was not based solely on discussions as to specific acts. It is imperative that a reputation witness has discussed the accused’s reputation with members of the community as a basis for his opinion that such reputation is bad. Mitchell v. State, 524 S.W.2d 510 (Tex.Cr.App.1975). We read Crawford to stand for the proposition that discussion of specific acts which occurs during the course of conversation as to an accused’s reputation in the community will not serve to taint or invalidate the officer’s understanding of that reputation. This is not the same, however, as holding that reputation testimony may be grounded solely on the officer’s knowledge of specific acts.

We cannot state the matter any more clearly than did the Dallas Court of Appeals in Moore v. State, 663 S.W.2d 497, 500 (Tex.App. — Dallas 1983):

“Reputation testimony is necessarily based on hearsay, but is admitted as an exception to the hearsay rule. For reputation testimony to be an exception to the hearsay rule it must meet two basic criteria: (1) that there is some necessity for the introduction of the testimony; (2) that the testimony has some circumstantial probability of trustworthiness. 5 Wigmore, Evidence § 1580, 1611, & 1612 (Chadbourn rev. 1974); 1A R. Ray, Texas Law at Evidence Civil and Criminal § 1321 (Texas Practice 3d. ed 1980).[6] The trustworthiness of reputation testimony stems from the fact that a person is observed in his day to day activities by other members of his community and that these observations are discussed. Over a period time [sic] there is a synthesis of these observations and discussions which results in a conclusion as to the individual’s reputation. When reputation is based solely on specific acts, this synthesis is lost, as well as its reliability. When reputation testimony is given by police officers who have investigated an individual’s offenses and by victims of an individual act who have spoken only with others who are also victims, it is obvious that the witnesses’ conclusions as to the appellant’s reputation will be slanted against the individual and will not have the trustworthiness implicit in the exception to the hearsay rule. The conclusion of such witnesses as to the reputation may be vastly different from those who have had the day to day contact within the community envisioned in the traditional exception to the hearsay rule for reputation testimony. What is actually occurring with testimony of this type is that a witness takes the specific acts of the individual and then infers what the reputation of the person would be. In this respect, this evidence could easily be fabricated and, thus, loses its reliability. Consequently, if this were an open question, we would likely hold that such testimony was inadmissible.”7

The instant case serves as a perfect example of the reason that knowledge of specific acts alone as a basis for reputation testimony violates the rationale for admitting such testimony in the first place. Long based his knowledge of appellant’s reputation on a single “terroristic threat” which was related to him by Gans. While strictly speaking this incident was not part of the transaction for which appellant was being prosecuted, both incidents were a product of the tumultuous relationship between appellant and Willie Etta Smith. *314Long’s testimony could not possibly constitute the kind of synthesis of observation and discussion in the community which is the basis for deeming reputation evidence reliable. His testimony was not indicative of the climate of opinion in the community. Rather, it reflected a single unproven allegation made by an obviously biased third party. Standing alone, knowledge of such a specific act will not qualify a witness to testify that he knows the reputation of an accused to be bad, and we so hold. The testimony of Officer Long was erroneously admitted.

We conclude, however, that admission of this testimony was harmless. Though Long was the only witness to testify on behalf of the State at the punishment hearing, his testimony was concise and unem-bellished. The jury never learned of the extraneous incident which was the purported basis for this testimony. Appellant himself offered no evidence in his own behalf during this proceeding.8 In final argument the prosecutor did not mention Long’s testimony. Instead he emphasized the violent circumstances surrounding the offense9 and made a general plea to the jury to fulfill its role in the law enforcement process by giving appellant a life sentence. Prior to the argument on punishment the prosecutor stated for the record that the State would have no objection to appellant reopening the case to present evidence on his eligibility for probation, but this invitation was expressly declined by appellant. On this state of the record we conclude that admission of the testimony was harmless beyond a reasonable doubt. See Mitchell v. State, supra.

Appellant’s motion for rehearing is overruled.

. The electroencephalograph report notes that penetration of one or two fragments into the brain was possible.

. This evidence was inadmissible on the issue of the defense of insanity because appellant's notice of intent to offer such evidence was untimely filed under Article 46.03, § 2, V.A.C.C.P. See Opinion on original submission.

. The general rule announced in Cowles is that evidence falling short of establishing insanity will not be admitted on the issue of guilt.

"An exception to this rule is where specific intent is an element of the offense for which the accused is being tried, as in the different degrees of murder and the ‘with intent' crimes. Annotation, 22 A.L.R.3d 1253, and cases there cited; People v. Taylor, 220 Cal.App.2d 212, 33 Cal.Rptr. 654. The reasoning behind the exclusion of this type of evidence is that if the accused can distinguish between right and wrong and understands the nature and consequences of his acts, and is therefore legally sane, the fact that he suffers from a weak mind or from emotional problems does not excuse his act,'and is consequently imma-ferial on the question of guilt and would only confuse the jury if admitted into evidence." (Emphasis in original.)

510 S.W.2d at 610. At the time Cowles was decided the operative test for determining insanity as a defense in Texas was the M’Naghten Rule, which inquired whether an accused at the time of the offense could distinguish right from wrong as to the conduct with which he is charged. At the time of the instant prosecution, which commenced June 19, 1978, the operative test could be found in V.A.P.C., § 8.01(a), which read:

"(a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of mental disease or defect, either did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of the law he allegedly violated.”

This different standard for determining insanity does not change the general rule that once insanity has been excluded from the case, evidence of diminished mental capacity will not be admitted. Appellant here argues that the evidence adduced in his bill of exceptions should come in under the exception to the general rule noted above.

. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

. At the hearing on appellant’s motion for new trial and in his motion for rehearing appellant alludes to V.T.C.A. Penal Code, § 19.06 as authority for the admissibility of his proffered evidence. Section 19.06 reads:

"In all prosecutions for murder or voluntary manslaughter, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense."

Assuming arguendo that the evidence of a possible defect of impulse control was a "relevant ... circumstance! ] going to show the condition of the mind of the accused at the time of the offensef,]” and therefore admissible under this provision, failing to admit it would have been harmless. This is so because, while it may have been relevant, nevertheless, as we have demonstrated in our rejection of such evidence under the doctrine of diminished responsibility, it was not material to the establishment of any operative issue in the guilt phase of the trial.

. Section 1321 states:

"The reasons for this [hearsay] exception are two: (1) The inherent difficulty of obtaining any satisfactory evidence of the desired fact other than proof of tradition and reputation creates a necessity for this evidence. (2) The fact that a prolonged observation and discussion of certain matters of general interest by a whole community will sift possible errors and bring the result down to us in a fairly trustworthy form furnishes a guarantee of correctness."

. The court of appeals felt constrained by Romo v. State, 593 S.W.2d 690 (Tex.Cr.App.1980) to allow knowledge of specific acts alone to serve as a basis for reputation testimony. To the extent that it conflicts with our present disposition, Romo v. State, supra, is overruled.

. This, in spite of the State’s concession at trial that the evidence as to appellant’s possible problem with impulse control, while not admissible during guilt/innocence, could surely be produced as evidence in mitigation of punishment at the punishment phase of the trial. See Cowles v. State, supra.

. The evidence at guilt/innocence showed that after the shooting took place, appellant obtained a jack from his car and proceeded to shatter virtually everything in the house that was made of glass. He then smashed the windshields and windows of two cars parked in the driveway of the residence before getting into his own car and driving to his sister's house down the street. There he admitted to his brother-in-law that he had shot the deceased.