*1 determination, await a case case both
because the statute defines lesser included BAILEY, James McNeill Appellant, in terms charged offenses of the offense and because defines lesser included of- Texas, Appellee. The STATE of fenses in terms of the facts of the ease. No. 49983. rehearing The State’s motion for is over- Court Appeals Criminal of Texas. ruled. Sept. 1975. Rehearing MORRISON, Denied Feb. 1976. Judge (concurring part in dissenting part on State’s Motion for Second Rehearing Denied Feb. Rehearing). agree and congratulate my brother part II scholarly opin- ODOM of his
ion. however, agree,
I do not evi- case
dence raises issue crimi- trespass, vigorously
nal must therefore part opinion.
dissent to I of the
DOUGLAS, Judge (dissenting opinion on for Rehearing). Motion
State’s
In addition the reasons set out in the original submission,
dissenting opinions on
appellant’s testimony does not show crimi- trespass. According testimony
nal
appellant, building right- he went into
fully early morning in the to call hours reрort burglary.
officers After
entry, he crime committed the of theft. No alleged trespass
crime criminal such was proved by appellant’s
no crime
testimony. refusing
The court did not err to sub- a charge
mit on a lesser included offense.
deceased’s residence and knocked on the sliding glass door that leads into the den. She tried the door and found that it was time, locked. At that she testified that she . heard a “bumping racket.” Mrs. Seiber walked around the outside of the past house *3 the side utility door and came in through garage door leading into the den. Upon entering door, Mrs. Seiber heard more “bumping noises” and then heard a groan. loud opened She the utility door and saw the lying deceased floor, groaning.
Mrs. Seiber door, then closed the went through back garage to the outside and called out appellant. to the explained She that she believed he was at the house be- cause his automobile had been “setting out by the fence in the back” when she arrived. Mrs. Seiber returned to the den through the garage began to telephone an ambu- lance. Approximately twenty seconds had elapsed from the time she utility closed the door, went outside and returned to the den. During trip outside the garage around house, and into the Mrs. Seiber never saw in the yard back area. Emmett Colvin and Joe Max Hendley, Dallas, appellant. for Prior to the completion of Mrs. Seiber’s telephone conversation, Freddy Wilson Lawhon, Atty., John Dist. Alan L. Levy, up walked to the sliding glass doors in the Atty., Denton, Vollers, Asst. Dist. Jim D. back, where he was unable to enter because Atty., McAngus, State’s David S. Asst. the doors were locked. As Mrs. put Seiber Austin, Atty., State’s for the State. telephone down, the appellant emerged from the utility room where the deceased OPINION lay. Appellant hands, had blood on his BROWN, collar, just Commissioner. below his collar. urged lant Mrs. Seiber to leave the house to murder; punish- The conviction is for summon an ambulance. While Mrs. Seiber ment, jury, assessed life imprison- den, was in the she stated that no one could ment. have entered the house through either 11, 1974, At February 1:45 P.M. on Shir- glass doors in the through den or the out- Seiber, ley neighbor, deceased’s arrived side utility room door. appointment home for an with the de- ceased, Imogene Apple. At that time Mrs. Freddy Wilson went to the deceased’s saw the deceased at her Seiber mailbox and residence to do some plumbing work. Wil- Afterwards, had a brief conversation. up son went sliding glass door and Mrs. went into her time, Seiber house and re- knocked. At that he saw Mrs. Seiber twenty mained there for fifteen to minutes. in the den on the telephone. Mrs. Seiber through Then she went yard the back showed Wilson the utility room where the heard call his he someone name and he the de- lay. Wilson testified that deceased up the house.” went back her head lying face down with ceased the out- leads to up against door In his first amount There was considerable side. in admitting the court erred evi- contends injuries in the room and obvious blood to demonstrate appellant’s intended dence deceased. the head complained The evidence of is thаt motive. appointment deceased had made an saw Freddy Wilson first express of the murder for the afternoon kneeling body. over He noticed blood purpose executing a will. The deceased’s appellant’s chin trou- and on his under prior provided in existence to her death Also, leg. Wilson stated that when ser twenty-one land acres of worth over up to his truck and came the house left $400,000 pass appellant. Gerald going anyone did not see toward the house. Stockard, an attorney, *4 appel- testified that ambulance attendant arrived and An that provision, lant was aware of this and with lying floor found deceased attempted persuade had to appellant The up against an outside door. her head to property to title deceased transfer standing had nearby, who was appellant, Howard, a surveyor, Kenneth testi- him. face, hands, shirt, chin, and on his blood appellant approached him two fied that arm. preparing months before the murder about map part of of the de- topographical a Depart- of Lewisville Police Officers Wood, a property. ceased’s Wendell bank off premises. ment arrived and sealed Virginia, ap- from that president testified Edge that he ar- Captain testified when twenty thousand dollars pellant borrowed utility the outside door to the room rived a in him in order to start racket club from Also, inside. other was locked from the Lewisville Mrs. W. testi- area. Greer house, and into with entrances windows appellant that wanted to convince fied exception garage and the of door appellant’s country club the deceased that door, sliding glass were was locked. There Faltejsek good was a idea. Roman project did any entry no evidence of forcible nor days that before the murder testified two appear a anything except disturbed for a planning told him he was coun- appellant security containing legal papers, small box club, tell Faltejsek should not try that although there were sizeable amounts of murder, day of the the deceased. On money present the house. in in appellant met with a bank official Sher- Captain Edge interviewed appellant building country about a for a man loan appellant on the scene. The to him stated in Lewisville. On his financial state- club at that time that he had to the de- come ment, twenty-two appellant listed acres of a with ceased’s house to discuss land matter $400,000 at valued the name of land upon arriving gone her and that had out Apple/Bailey. He pasture
to a
in back of the house.
case,
Where a
such as the one
returning
stated that as he was
us,
dependent
on circumstantial
before
barn,
house,
proximity
in close
its proof,
for
the rules of evidence
evidence
house,
yell
heard someone
and he ran to the
stringently applied
not be so
so as to
through
entering the residenсe
the outside
light
evidence which sheds
exclude
utility room door.
Knapp
Tex.Cr.App.,
occurrence.
with
spoke
appellant
Officer Galler
plan
The
“The testified Sheriff conversation, we prior complained rated the would be faced appellant Here, however, problems. all the facts and cir- different From statements. evidence, the statement including made after cumstances in which possession question hardly was still in one could be describ- fact rifle, eliciting we conclude that ed as directed toward an incrimina- his loaded ting response. appellant’s arrest when he made We find that lant was not under inculpatory voluntarily given Captain remarks described. The statement was was, therefore, admitting Edge not err in such admissible. trial court did No error shown. statements.” was vol- appellant’s We find that statement In this was,
untarily given
Captain Edge
contends that the trial court
erred
admit
therefore,
ting photographs
admissible. No error is shown.
of the deceased taken аt
autopsy.
the time of the
photo
four
State, Tex.Cr.App.,
As stated in Ancira v.
deceased,
graphs show the face of the
determining
the factor in
head,
hand,
upper right
right
side of the
has
the voluntariness of
statement which
Appellant argues
and the left hand.
consistently impressed us is “whether or not
performed
since the
who
the autopsy
doctor
investigation
finally
the focus of the
has
testified that he had to dissect in order to
Ancira, p.
centered on the defendant.”
hemorrhage,
the photo
evaluate
cerebral
case,
Ancira,
interrogating
In this
as in
graphs are inadmissible because the jury
investigation
officer testified that the
depicted
could not determine
the wounds
yet
appellant,
narrowed tо the
but that
autop
were the result of the murder or the
it,”
“anybody could have done
and that
sy.
relies on
Appellant
Terry v.
Tex.
two
suspects
others were
Cr.App., 491 S.W.2d
where we held
the time the statement was made. This
photographs
body
that four
of a child’s
tak
distinguishable
case is
from Ancira
*6
in
autopsy
performed
en after an
had been
testimony
the officer’s
supported by
is
oth-
were inadmissible for the reason
they
that
er facts.
depicted
subject
mutilation of the
“massive
spoke
arresting
Ancira
with the
surgery
performing
matter caused
the
in
Here,
request.
officer at the officer’s
as in
autopsy,”
the
in the
expla
absence of
State,
Brown v.
Tex.Cr.App., 475 S.W.2d nation,
probative
their
value was out
938, the defendant
the conversa
initiated
weighed by
inflammatory
their
nature.
tion which led to the statement. Miranda
Arizona,
v.
384 U.S.
the
Lynn,
per
S.Ct.
Dr.
doctor who
L.Ed.2d
defined
interrogation
autopsy,
custodial
formed the
testified that each of
“questioning
as
initiated
law enforce
photographs complained
depicted
the
of
murder,
ment officers after a
during
proba
has been taken wounds incurred
the
custody
deprived
into
or otherwise
of his bly by
heavy,
a
blunt instrument. There
any
of action in
significant way.”
testimony
freedom
was no
to the effect that
The fact that the
offi
police
photographs pictured
accused
the
the deceased sub
office,
home,
together
are
in an
or
sequent
autopsy. Terry
cers
a
cannot be
police
a
car will not render a statement
prevent
construed to
the admission of rele
if the
not fall
photographs merely
inadmissible
circumstances do
vant
because the de
interroga
within the definition of custodial
ceased has been removed to clinical sur
roundings.
tion. The fact that
had been free
Knoppa
Cf.
Tex.Cr.
go
App.,
to
and had chosen to return in order to
802. Only
S.W.2d
where the re
speak
Captain Edge
removes this case
sults of surgery have obfuscated the results
proscription
po
from the
of Miranda. Had
of the crime will otherwise accurate de
begun
investiga-
pictions
to
their
lice officers
focus
be inadmissible. The photographs
question
Imogene
in
here
illustrated and
Apple
clarifiеd the
McNeill
was not caused
description
injuries,
doctor’s
independent
the
and no
the
act
party,
third
error is
in
death,
reflected
their admission. Prov
there
was such
or if
have a
thereof,
ost
The were deceased had rolled over en after the charge complained of read as fol- placed on a backboard and a towel or lows: placed por- sheet had been over the lower “Unless find from the evidence be- body. Appellant argues tion of her yond a reasonable doubt that the death of photographs depict do not because the Imogene Apрle was not McNeill caused was found were of- deceased as she independent act of a party, jury. the state to inflame the fered death, there was such a or if have a Cabbell, thereof, emergency Robert a fireman and reasonable doubt technician with the Lewisville Fire the defendant.” acquit medical Department, testified that he arrived best, charge was confusing At but it did lying and found the deceased face scene not, contends, as the shift pool in a of blood. Cabbell testified down proof to the burden of defendant. Nor was floor and that there was blood “all over the charge contradictory inas the case of He further the walls and the cabinets.” Black v. 137 Tex.Cr.R. her over to deter- testified that he rolled (1939), relied upon S.W.2d and that he mine if she was alive or dead lant. placed her on a backboard. and his assistant charge given paraphrased can be *8 State, Martin v. follows: limit the admission does not you beyond Unless a reasonable to those which gruesome photographs of doubt that the death was not aby caused as that depict' a scene found party, acquit then will the de- it. The enough to discover unfortunate fendant. is that if “a verbal rule there announced analysis produces of the issues involved An the would description body of the and scene following: admissible, depicting the photograph a be was prove A. The must that death It was not error to State is admissible.” same not causеd party. a third photographs. admit prove beyond B. The must committed the Appellant State “A” a murder. parked reasonable doubt. his out by car fence in back so that it not usually parked would be seen. He it charge C. The should read: Unless where it could be seen. B,” then you acquit. find “A the testimony Shirley From Seiber the charge actually This resembles Wilson, Freddy plumber, no one but given. It affirmative is an statement of appellant was in the house the de- the defensive issue. And it does shift ceased the time of the homicide. If of proof appellant. burden State’s anyone house, else had been in the however, issue, majority’s I take with the have Appellant would seen them. had paragraph reliance on another of the chin, face, blood his on hands arm as jury, submitted court to the “The well as on his clothing. gave He several proof burden of all criminal cases rests contradictory versions to who those were at trial; upon throughout the state it nev- the house shortly after the homicide. er thing shifts to the defendant.” It is one versions, After these different to “consider the as a whole” on “ Edge volunteered to Captain . review, quite thing rely another to' on a I did not tell the whole or exact truth phrase fortuitous catch-all to cure otherwise everything,” about and “I hid the murder majority reversible error. The would seem- jacket, a weapon, gloves.” and the ingly rely plate boiler paragraph on this officer found a pipe metal with blood аnd shifting cure and all defects the burden flesh on and a a pair coat with of blood proof portions in other of the court’s gloves stained pocket. one The officers charge. type subject of solution This is copy found a of a will executed for great potential abuse and I cannot ac- top deceased on of a box security on a table. practice. cede to such a the only This was instrument outside the box. J.,
MORRISON, joins in this concurrence. Appellant attempted get had the de- ceased to advance him money some for de- OPINION ON APPELLANT’S MOTION a veloping club but she had refused. He FOR REHEARING knew the contents of the will in which he DOUGLAS, Judge. major of, was beneficiary. day On the Appellant urges that the trial court erred just murder, short time before in admitting testimony that the deceased appellant in attempt an a loan to obtain was planning change There will. is club, building country twenty-two listed proof no that knew that she had $400,000 land acres of valued at the name planned change her will so he would thought “Apple-Bailey.” This showed property would not be left value over the day. was about to land that own the $400,000 provided for in the will that Appellant had made statements that he already signed. $2,000 month that he live on the could not making pilot. as a
Assuming that it was error to admit testimony, proof its admission to re- in this case shows does amount no other killed deceased. versible Let us look lant and error? to some anyone else was There nо indication that testimony already opinion in the mentioned Appel- crime. suspected committing original evi- submission and additional only person in the house at the lant was dence in the Even appears record. the homicide. His statement judge wisely time of though cautiously the trial the murder where he had hidden circum- officer instructed that this was a *9 out case, gloves jacket turned to be weapon, led to stantial the evidence evidence almost, not, if direct evidence of that no other true and the conclusion
325
applied
“The rule
get
A
stated has been
committing the crime.
motive to
on
many
prior
he could not live
decisions in this
because
State.
property
property
Judgments
he wanted the
have been reversed
and that
when cir
his income
immediately
cumstances
show a
proved.
it
was
were admitted to
motive
and he wanted
for murder
it was not shown
that
any,
admitting
The
knowledge
defendant had
circum
testimony is not
complained of
sufficient
g. Phillips
State,
stances.
e.
v.
See
[22
Appellant’s
for
cause.
motion
reverse this
Tex.App. 139],
they
rely only upon Knapp
charge
v.
affirmative
is one which states
(Tex.Cr.App.1973)
evidence is] defendant, weak, issues, strong, it be such as are especially upon and whether based Thompson unimpeached, tending or contradicted.” evidence establish the inno- trial, (Tex.Cr.App. cence of the S.W.2d an inferen- 1974). negative way, tial or does not meet this short, was, guage: providentially, absent from “In the defence 1. saddled Griffin [sic] Griffin, who, jurisdiction things at trial court’s the time of the onus on all con- sidered, plight Appeals good carry summarized was in it.” trial. Reynolds’ Court of following Reynolds, supra, Tex.App. with the lan- defense
327 emphasized The language makes it evi- is en- The defendant legal requirement. major dent that the reason for the rule is pre- affirmative to a distinct and titled charge that a whiсh fails to instruct affirm- arising upon his the issues sentation atively on the evidence favorable to the jury not evidence, may that the in order defendant constitutes a comment on the ignore his defences induced be [sic] weight of the evidence in violation of what the court did supposition that upon 36.14, is now Art. Vernon’s Ann.C.C.P. importance them of sufficient not deem 38.05, Compare Art. V.A.C.C.P. Accord: consideration, and for a further justify State, McLaughlin Tex.App. 340, 10 v. 357- presentation such that without reason (Austin 1881). Term an intel- condition to make jury are in no question What remains is the of what of the law which should ligent selection charge form an affirmative should take. govern them in case should find that State, The Cozby recent case of v. true. defendant’s evidеnce (Tex.Cr.App.1974), S.W.2d 589 is helpful. 464; State, Ct.App. The 7 Texas Heath v. Cozby, this Court reversed the conviction 414; State, Ct.App. v. The 7 Texas Smith because of the trial court’s give failure to Tex.Ct.App.] v. The Beckham [8 charge an affirmative “good issue of happen that the testimo- may “It often purchase. faith” There the court approved fabricated, has ny in defence [sic] as an “affirmative charge” requested inartistically upon as to bear and that so following language: which used the improbability or actual its face an air you “You are further instructed that if untruth; then the court is not but even believe from the evidence that the De- duty considering from relieved fendant, Cozby, purchased Charles right framing charge, as it is LTD, faith, good аlleged red ’71 Ford falsity to have its truth or the defendant to have been stolen from Ted Arendale by by jury and determined Ford, found, you if have so from the said As said in the first instance. court Ray paid Woods and valuable considera- Riojas case of this court in the recent automobile, purchase tion for the of said [50,] in Tex.Ct.App.] The [8 you say by your will verdict ‘Not ‘In discussing question: this identical Guiltyor you if have a reasonable all the evidence elicited on view of thereof, doubt acquit the De- trial, probable it is more than (Emphasis added.) fendant.” defence, instruc- proper even under a [sic] given Cozby The which was tion, appreciable no ef- would have had inadequate deemed —but this Court— would have been jury, fect with the and was as follows: reaching altogether by them in discarded though you “Even should be- was not a conclusion. But that their beyond from the evidence a reasona- lieve the determination of question for ble doubt that the Defendant received below, be with this court and cannot persons proper- from unknown of court provinces appeal. court on ty described in the indictment of the val- rigidly defined plainly are Dollars, Fifty yet you ue of over cannot act law, it is not for the former to convict the Defendant unless further cannot be that the latter upon a belief evidence, believe from the be- find and any particular portion of affected doubt, that, time yond a reasonable at the (the jury) may Possibly they evidence. did, property, received said if he so altogether an different view of entertain Defendant received the same fraudulent- evidence, pre- as is their undoubted ly, appropriate with the intent said ” Reynolds under the law.’ rogative his own use and benefit and property to 414-415, thereof, add- supra, (Emphasis deprive the owner of the value ed.) and that the Defendant then knew that stolen, (1913), examples the same theretofore been as it if have a doubt as to reasonable should have been given. whether Defendant such received judgment should be reversed.
property fraudulently, or as to whether the Defendant knew at the he re- time ODOM, J., joins in Part I of this dissent. same, did, prop- ceived that such *12 stolen, erty had been then theretofore
you acquit (Empha- will the Defendant.” added.)
sis requested charge in Cozby follows above; is, guidelines outlined theory
states the defensive affirmatively,
using language: you direct “If believe acquit
. the Defendant.” GASSETT, Appellant, William Parma given Similarly, Cozby in negative presents theory defensive in Texas, Appellee. The STATE of emphasize which unduly terms the State’s “ No. 49599. theory the case: . . cannot convict the Defendant unless find and Appeals Court Criminal of Texas. ” believe . . . 21, Jan. 1976. In this case the raised State’s evidence the issue whether the homicide com- Rehearing Denied Feb.
mitted acts of other than appellant. Accordingly, the appellant timely
made objection to the court’s “to for its failure instruct for ac-
quittal if the finds the death
the deceased was caused the independent person.”
act of a third objec-
The trial court responded to this by giving confusing seemingly
tion
contradictory charge reproduced which is in concurring .opinion original submis- objected
sion. The charge. this
form of charge given strongly in case Cozby,
resembles negative emphasis, capacity
its in its
creating jur- confusion in the minds of the implying
ors them trial
judge favored the view of the case. State’s
Reynolds v. supra; McLaughlin
State, supra. charge request- Similarly,
ed is in form here Cozby.
endorsed the Court It should given;
have the failure to do so was
reversible error. Burkhalter v. See (1916), Tex.Cr.R. S.W. 71 Tex.Cr.R. S.W.
Ward v.