Pozzerle, Alan
PD-1486-15
| Tex. App. | Dec 30, 2015Background
- Alan Pozzerle was convicted of murder and sentenced to 35 years after a jury trial in Harris County; he appealed and the Fourteenth Court of Appeals affirmed.
- Pozzerle's cell phone was stolen from his motel room; after arranging payment, he met the person holding the phone on the street with an accomplice.
- During the encounter Pozzerle struck the complainant with a jack handle and his van; the complainant died at the scene Pozzerle left. Pozzerle recovered his phone.
- Pozzerle requested jury instructions on (1) defense of property (Tex. Penal Code §§ 9.41–9.42) at guilt/innocence and (2) sudden passion at punishment; the trial court refused both requests.
- The court of appeals held Pozzerle was not in "fresh pursuit" of the phone because roughly 45 minutes elapsed after the theft before the encounter, and also held the record did not support sudden passion. Both issues were overruled and the conviction affirmed.
Issues
| Issue | Plaintiff's Argument (Pozzerle) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether jury should have been instructed on defense of property (use of force to recover property after dispossession) | Pozzerle argued he was unlawfully dispossessed and used force "immediately or in fresh pursuit" to recover his phone, so §9.41(b) justified an instruction | State argued Pozzerle was not in fresh pursuit because substantial time elapsed after the dispossession before he used force | Court held no instruction required: evidence showed ~45 minutes between theft report and encounter, so not immediate or in fresh pursuit; instruction properly denied |
| Whether jury should have been instructed on sudden passion at punishment | Pozzerle argued provocation (theft, alleged knife threat) produced immediate passion negating level of culpability | State argued evidence showed cooling off and lacked proof of passion arising immediately from adequate cause | Court held no instruction required: evidence showed Pozzerle cooled off and mere theft/claim of fear did not prove sudden passion arising from adequate cause |
Key Cases Cited
- Wooten v. State, 400 S.W.3d 601 (Tex. Crim. App.) (standards for sudden passion instruction)
- Trevino v. State, 100 S.W.3d 232 (Tex. Crim. App.) (evidence must show immediate influence of passion)
- Nava v. State, 379 S.W.3d 396 (Tex. App.—Houston [14th Dist.]) (robbery of a cell phone does not ordinarily produce sudden passion)