Borns v. State

Rule theory could have under the note and deed of that such has been waived. agreement, The letter uncontradict- 299, trust. T.R.C.P.” recognized party, that each by appellee, ed Appellant’s points pertaining of error indebtedness, certain had a one- subject to her counter-claim or set-off are overruled. subject property. third interest in the The rationale, Using the same we also overrule relationship parties between the was еstab- appellee’s appellant contention that was lia- by agreement lished in law the letter capacity. ble her individual parties, denying and was not or court, judgment of the trial insofar attempting deny appellee’s interest appellee any recovery against as it allowed property. in the individually, appellant, as trustee or is RE- Even if it could be conceded that judg- RENDERED. The VERSED and resulting arose, trust there was insuffi denying appel- of the trial court in ment cient evidence to show the terms of the lant’s and counter-claim is AF- set off trust or the conditions under which it requested FIRMED. All other relief Scheltz, 564 arose. Brelsford rehearing appellee’s motion for is denied. (Tex.Civ.App. [1st Dist.] — Houston 1978, n.r.e.): in writ ref d. Since there is evidence to a trust rela sufficient establish

tionship appellee, and between

appellant’s points challenge of error which findings

the trial court’s that she was liable capacity

to the Association in her as trus points

tee are sustained. All the other error are overruled. BORNS, Jr., Appellant, Jesse points appel several of error counter-claim, appеllant alleges lant’s Texas, Appellee. STATE failing the trial court erred in to find that Conine and Hendricks their fidu breached No. 05-83-00339-CR. ciary relationship appellant. Appellant Texas, Appeals of Court of requested findings no of fact or conclusions Dallas. concerning law from the trial court joint any possible fiduciary venture or rela July 1984. tionship arising previously therefrom. As July Rehearing Denied stated, appellant’s testimony was brief questions joint no were аsked her about the fiduciary relationship

venture or the be

tween her and Conine and Hendricks. Nor testify regarding any possible

did she fiduciary relationship

breach of the or

damages allegedly by sustained her as a any purported

result of the rela breach of

tionship. documentary Even if the evi support

dence could assumed to some be

type fiduciary relationship ap between Hendricks,

pellant, Conine Court previously

has held Imatani v. Marmo (Tex.Civ.App. Corpus

lejo, 606 S.W.2d 710 — 1980, writ) that: Christi recovery, given theory

“When

defense, by pleadings and is raised

evidence, findings of fact are made filed, finding ‍​‌​‌‌​‌‌​‌‌‌​​‌​​‌​​‌‌​‌​‌​​‌‌​​​​‌‌​‌‌‌​‌​‌‌‌‌‌‍but no is referable will, theory, appeal, deemed

such be Foreman, Foreman, DeGeurin &

Percy Anton, Jackson, Houston, DeGeurin, Bruce Dallas, Anton, appel- Sorrels, for Shapiro & lant. Meredith, Wade, Atty., Molly

Henry Dist. Atty., appellee. Dist. for Asst. STEPHENS, STEWART Before WHITHAM, JJ.

STEWART, Justice. Borns, Jr., his conviction appeals Jesse sentence murder and for the offense of In his first forty years’ confinement. ground error, challenges Appellant correctly the court’s asserts that requested jury charge refusal to submit a negligent homicide is a lesser homicide, and in included offense of murder and that crimi grounds complains two and three he nal occurs when the actor fails prosecutor’s arguments We perceive a fail risk so obvious that his affirm the conviction. perception gross ure of constitutes a devia acceptable tion from the stаndard of con Appellant money borrowed from the de- § 19.05(a), duct. TEX.PENAL CODE ‍​‌​‌‌​‌‌​‌‌‌​​‌​​‌​​‌‌​‌​‌​​‌‌​​​​‌‌​‌‌‌​‌​‌‌‌‌‌‍See repay previ- ceased and did not it. Their § § 19.07(a), 6.03(d) (Vernon 1974); Sali deteriorated, ously relationship close (Tex.Crim. State, nas v. 644 S.W.2d 744 upon deceased continued to insist re- However, App.1983). require in order to payment. the de- When saw offense, charge on a lesser included we standing parking ceased near his car in the must determine that there is some evidence minister, the church lоt of where he was a raising in the record issue and got pistol parking and went to the that, evidence must if the defend First, indicate her. lot to confront he shot the tire car, her, guilty, guilty only ant is he is of the lesser apparently frighten of her State, 442, pointed Royster then he offense. v. 622 S.W.2d at the deceased. (Tex.Crim.App.1981) (Opinion As the deceased reached 446 out toward the fired, gun, Rehearing); it and she was killed. Court’s Motion for Eldred v. State, 721, (Tex.Crim. 578 S.W.2d 722-23 Appellant pleaded guilty. He did not also, State, App.1979); 627 see Bravo v. testify jury, at his trial before a but in his 152, (en (Tex.Crim.App.1982) S.W.2d 157 written confession he described the incident banc), State, 691, 578 Thomas v. S.W.2d as follows: (Tex.Crim.App.1979). 698 gun pointed her, I had the Joyce gun, reached out toward the and I inad- First, we note that con vertently jerked and a shot went off. shooting tention that the accidental is Joyce fell down and then I realized she an of innocence. v. assertion Williams was shot. 640, State, (Tex.Crim.App. 630 S.W.2d 644 (en banc). 1982) рenal Under the former jury charge charge included a code, accident, a defense of when there was murder, the lesser included offense of in- Appeals the Court of Criminal held that voluntary manslaughter, and an instruction accident not in and of “the defense of does acquit jury defendant if the found negligent itself raise the issue of homi shooting was the result of an State, Simpkins cide.” v. 590 S.W.2d discharge gun. Appel- accidental Here, (Tex.Crim.App.1979). 133 request criminally lant’s fоr a “inadvertently jerked.” that he claimed negligent homicide was denied. This is an assertion that he did not volun Appellant voluntary contends that his tarily engage the conduct of which he criminally 'statement raised the issue of Thus, the assertion that the act accused. negligent homicide in raised the involuntary not raise the issue of does shooting issue that the an accident. negligence, criminal which is based on He maintains further because acciden- State, voluntаry Dockery 542 act. See discharge tal of a can be either invol- (Tex.Crim.App.1975). 644 S.W.2d untary manslaughter criminally negli- or Next, any we consider whether evidence homicide, gent charges both should have raises the issue of this ease jury. been submitted to the He cites as Schoelman, rely negligent homicide. State, authority 644 Schoelman v. State, (Tex. 690 ing on Giles v. 617 S.W.2d (Tex.Crim.App.1983), 727 and Hunter v. court held that the act State, Crim.App.1981),the (Tex.Crim.App.1983) 647 S.W.2d 657 (en banc). “pointing raises the disagree his conten- We with homicide, i.e., distinguish from the issue of tion and these cases unaware of facts of the case at bar. as to whether the accused was ought holding been aware in Moore v. 574 S.W.2d the risk that of_” to have Id. 691. The Court of Criminal (Tex.Crim.App.1978),stated: Appeals Lugo credibility of evidence and whether (en banc), quoted other it is controverted conflicts with opinion from the and said Schoelman con- may the case not be court held there the that: determining sidered in whether a defen- negligence criminal arises when one charge or an on a lesser sive instruction another, since points a loaded given. offense When included should be involuntary man- the distinction between raises a defen- source slaughter and criminal de- issue or raises issue that a lesser sive an solely on two infer- pends which of the offense commit- may included regarding the awareness ences accused’s ted the issue must be submitted ... сorrect, issues, “reck- of the risk is both duty jury’s It is then under negligence,” and “criminal lessness” proper to determine the instructions jury should submitted sup- and the evidence is credible whether for resolution. included ports the defense or the lesser appears court in glance At first it that the offense, added). (emphasis required criminally a charge on Schoelman Moore, at Lugo, quoting 667 S.W.2d defendant negligent homicide because the 124; Schoelman, at 574 S.W.2d see also pointing gun a at the deceased. How was at 644 S.W.2d 732-33. ever, con interpretation of Schoelman agree with and Schoel- Lugo We prior opinions the of flicts with of Court source, evidence, all man that from where, although the ac Appeals Criminal that, an issue must be considered and once deceased, gun it was pointed cused a at evidence, by it cannot raised the has been Simp held that the issue was not raised. evidence, 129; State, by whether negated other kins, 529 be 590 S.W.2d Lewis v. weak, unimpeached, In (Tex.Crim.App.1975). strong, or contradict S.W.2d 550 that, Schoelman, the defendant testified 147. We do Lugo, 667 at ed. See S.W.2d gun point intended to a at an “while she interpret Lugo, either or Schoelman not person, of the other ‘she was not aware pointing gun of a neces that the act hold created,’ that which her conduct and risk of, a requires sarily raises the issue and accidentally discharged she ‘the when on, of charge thе lesser included offense ” hand, there grabbed.’ On the other was negligent criminally homicide. indicating ‘that was additional Schoelman, the statement Cited ” conduct.’ perceived she risk of her Giles, “pointing at that 617 S.W.2d there, court, Id. 644 S.W.2d 734. The person at a criminal loaded constitutes inferences held that the two “[w]hich upon was based London negligence,” awareness of regarding accused’s (Tex.Crim.App.1977), 27 547 S.W.2d correct is a matter to be drawn risk is Dockery, In Dockery, 542 S.W.2d 644. and by jury.” the circumstances Schoel negli- only charged with the defendant was man, 734; Giles, 617 S.W.2d homicide, greater offense gent with the 691; also see Branham manslaughter. involuntary murder or In (Tex.Crim.App.1979). There, accidental distinguished the court Schoelman, own testimo defendant’s homicide, acquittal, from which results in conflicting, the is ny, though raised both homicide, punishment negligent for which criminally negligent homicide and sues of by law. concluded provided The court manslaughter. involuntary defendant, having the conduct Schoelman, interpretation proper asleep was on gun in his hand when he once Lugo, as it is discussed arose, discharging and it as the floor neg- criminally raises the issue of therefore, act, voluntary awas homicide, ne- thereafter be ligent cannot aware of ought to been defendant have Lugo, evidence. In gated by other Thus, the reiterating by its conduct. Appeals, risk he created of Criminal Court supported eye when thе conviction deceased in defendant of criminally negligent offense homicide. at the “shook” his deceased. The fact pointed at the the defendant ‍​‌​‌‌​‌‌​‌‌‌​​‌​​‌​​‌‌​‌​‌​​‌‌​​​​‌‌​‌‌‌​‌​‌‌‌‌‌‍The Court of found Appeals Criminal not raise the issue of criminal- deceased did in that Dockery similarities London ly negligent homicide. Id. at 552. pointing the defendant’s act of a loaded shotgun sufficiently was volun- Simpkins are similar facts tary to constitute negligence. criminal There, was facts us. the defendаnt before London, year the sixteen defendant old requested convicted of murder and charged requested a was with murder but homicide, charge on charge criminally negligent homicide. manslaughter, involuntary aggravated manslaughter involuntary No assault. The evidence showed that de- requested. only had jury Because the fendant of the risk knew he created: finding guilty the alternative of him qualified range Army the rifle free, setting him appellate court re- weapons dangerous. knew that were particular versed held that under the There evidence that was no the defendant presented, jury facts have found could of a unjusti- not aware substantial and criminally negli- defendant was ought fiable risk of which he to have been gent. aware. The defendant claimed that shooting the result negligent

The issue of an accidental Dockery discharge. homicide raised in The court held London and that the issue not criminally negligent was cоnsidered as a included not lesser homicide was involuntary offense of Fur manslaughter. raised. ther, Giles, in criminally negli the issue of that the Court We are aware of Criminal gent homicide was not at all. considered Appeals, Lugo, expressly disapproved in of

There, fifteen-year-old a defendant bor implication Simpkins an that a defend- derringer a rowed from his brother negate ant’s can evidence that gun that testified the while he went off be sufficient the would otherwise to raise pointing was it at the The trial deceased. issue of a lesser included offense. How- charged only court on murder and the de ever, implication this comes from a discus- requested charge fendant a the on lesser regarding sion in of the Simpkins offense involuntary manslaugh included of aggravated the included offense of lesser reversed, appellate The stating ter. court said, the court evi- assault where “[T]he requested charge invоluntary the that on not raise the issue of of- dence does this manslaughter given should have un been fense, appellant the in that has denied com- reading der these facts. Our of Giles does voluntary act mitting any or intentional support proposition not the the act that of any of which would raise of the elements gun pointing always a will Simpkins, at this offense.” 590 S.W.2d charge negligence. a on mandate criminal the Lugo necessity 134. stressed of con- holdings analyses From our of in rela sidering the evidence in order to deter- all London, to the facts of Dockery, tion an mine whether instruction a lesser Giles, Schoelman, we conclude given; not included should be it offense did charge on criminal before holding disapprove Simpkins of that required, there must be some evidence that the issue of homicide the issue of accused raises whether the was not raised. unaware, ought but was to aware, by pointing of the risk he created Here, is no there the record dangerous weapon. appellant from that was un- source risk by pointing aware of the created Lewis, 550, defendant

In 529 S.W.2d the deceased. He loaded had owned manslaughter involuntary convicted of was years protection for the requested for several and the church; just he had shot the tire on negligent homicide was denied. car, discharged obviously and a fatal struck the and he knew bullet victim’s error, languagе must that was loaded and that it could reversible used record, inflict this necessarily fatal wounds. Under to refer to accused’s failure appellant issue was raised of whether testify and that it is not that the sufficient risk of have unaware of a which should language implied as an might be construed therefore, aware; correctly been court Rogers v. or indirect allusion thereto. requested charge on appellant's denied (Tex.Crim.App. criminally negligent homiсide. 1980). Appellant complains prosecu- next First, not hold that did we arguments closing to In tor’s his. to latter right complain waive argument guilt-innocence phase portion argument by of prosecutorial fail prosecutor the trial the stated: ing object portion. to to the earlier voluntary you His statement shows portion argument, ‍​‌​‌‌​‌‌​‌‌‌​​‌​​‌​​‌‌​‌​‌​​‌‌​​​​‌‌​‌‌‌​‌​‌‌‌‌‌‍which stated first relationship going that the still had that not rebutted evidence Well, West, you Mr. what leads possession keys regarding his January that In of this conclusion? allegation that he deceased’s house 1982, Joyce year, year Chester there, spent night not had did necessar $5,000 Wynnewood Bank. borrowed testify. ily refer failure $2,000 says Joyce gave He him of it. objection Consequently, an time relationship So we know properly have overruled. been going on. still keys You had the to the house. also Next, complained hold that the we has been We know that. And that portion does not constitute reversible night spent You also over rebutted. er error. order to constitute reversible been there. And that has not rebutted. ror, manifestly language must be either you all into So can take of this considera- intended, or such a that the character determining his intent was. tion what necessarily naturally take jury would intent, Now, again, as far as his testify. a comment on his failure to be knowledge, let’s into consideration take (Tex. State, 627 Angel v. prior has Mr. the threats that he made. challenged Crim.App.1982). comment (the attorney) men- Nacol defense hasn’t standpoint from of the must be viewed the only He’s tried knock tioned that. to jury’s If the remark calls the atten fact that but he couldn’t rebut the down only of evidence that tion absence 11th, July July 11th Jesse that on that appellant supply, could testimony from the her Joyce’s Borns threatened life to Id.; must be reversed. see the conviction and Aunt. He couldn’t rebut that fact State, 611 S.W.2d 649 Johnson v. also goes to knowl- that to his intent and State, 573 (Tex.Crim.App.1981); Myers v. edge. (Tex.Crim.App.1978). regarding Appellant contends that evidence argument in challenged Viewing the the knowledge the of accused intent jury, appear the it does not context before source, only one the accused available from manifestly jury’s to call the be intended to therefore, himself, im- the State testify. to appellant’s failure attention to his failure to testi- properly commеnted on knowledge Intent and of a defendant Further, no argues he that one could fy. other than testi except by shown often appellant’s fact of threat rebut the Although re mony of defendant. the appellant himself. the silence, it not to his does mark alludes objection was argues State it, rather it focuses focus attention objection made timely not because Despite the testimony of witnesses. argument. It portion to the first may fact no one еlse argues complained further threat, enough to hear the rebuttal close merely a summation statement testimony question could have come by appellant’s witness- presented Here, witness. impeachment that, in to constitute from It order es. concedes prosecutor’s may just jury’s comments as marks directed the attention to the well have been heard to mean that defend- only appellant’s absence of evidence that impeach ant could not Fur- witness. testimony supply; consequently, could ther, overruled, objection when convictions at 594- were reversed. Davis prosecutor say, went on to like the “Just right subpoena people, State has a so argument A similar was af- Thomas They the Defense. subpoena any- does can prosecutor argued: firmed. There the anything they Viewing one and want.” you something you I’ll tell else didn’t context, argument total of the flow solitary single hear. Yоu hear one didn’t complained argument appear does not part bit on the of this de- of contrition jury’s impermissibly focus the attention fendant from his witnesses nor his attor- testify. failure of ney. up He wife sister had his Appellant finally complains of the They you, ‘Boy, he’s there. didn’t tell prosecutor’s argument punishment at the sorry sorry about this. He’s phase of the trial which he stated: right. just to do He wants wishes say And what did he both those times? just hadn’t have done it.’ He wishes he Joyce’s It was аn accident. It was fault. hadn’t have done it.’ You didn’t hear Coughlin He has never told Mr. or Mrs. single that. You didn’t hear one bit of thing you expect Crittendon the first guarantee you sorry that and I if he was anybody, much less a minister: I’m for he had done—and I he is what submit sorry I sorry killed her and I’m she’s no sorry you not the least bit would’ve — longer living here with the rest of us. heard it from about his witnesses. Appellant claims that neither witness had Appeals The Court of Criminal held that punishment phase been called at the аrgument necessarily not be un- trial. He contends that if the accused does derstood as a reference to the defendant’s testify, and a demand for evidence of testify the defendant failure because during contrition is made prosecutor’s testify called his wife and his sister to argument, reversible error results because stage punishment of the trial and the argument improper constitutes an com prosecution expressly had referred to “his testify. Ap ment on failure to Thomas, 485; witnesses.” Davis pellant authority cites as Davis v. 594-595. Because the in Thomas (Tex.App. 646 S.W.2d 594 — Dallas argument only challenged the as a com- pet. granted), and Thomas v. testify, argu- ment on his failure to and the (en banc). S.W.2d 481 others, referred to the ment Davis, prosecutor argued: ground the court overruled this of error. know, you may You find it hard to be- The facts of the instant case are similar by age you mean, lieve that 17 can be as Contrary appеl- to those of to Thomas. vicious, totally as as self-centered and as claim, testimony lant’s the record includes felings devoid of for human other [sic] punishment phase at the Crittendon is, being way he lives as but that’s the he Coughlin during and Crittendon both is. You think he can can be be rehabili- guilt-innocence phase of the trial. The ar- tated? Look at that witness stand. Was gument refers to what told two you there one shred of evidence before to immediately ‍​‌​‌‌​‌‌​‌‌‌​​‌​​‌​​‌‌​‌​‌​​‌‌​​​​‌‌​‌‌‌​‌​‌‌‌‌‌‍witnesses after the offense. you going change, tell he can he’s to be Therefore, necessarily it does not direct the changed, changed, he wants to be he will jury to the fact that minds of changed? testify in own did not behalf. argument designed This to show the Judgment is affirmed. jury displayed that Davis had no contrition wrongdoing any to for his nor desire WHITMAN, Justice, dissenting. life, attitude, change way or his State, I being respectfully Lugo le- dissent. v. justify jury which would in (en assessing punishment. nient in The re- 667 144 S.W.2d 886

banc) go gun “that caused the to off.” аnd Schoelman case, (Tex.Crim.App.1983), support appel 727 present the evidence established that ground of error complaining lant’s first gun” the victim “reached out toward to charge the trial court’s refusal on crimi Thus, and “a shot went off.” critical nally negligent Compare homicide. the ac in essentially facts are the same both ap in testimony cused’s Schoelman with Indeed, present Schoelman and the case. pellant’s in present written cоnfession stronger facts in case are present testimony: case. The Schoelman key in to criminal than Schoelman. Q: really took this to You and went failure of is found in the frighten Coe, to that door perceive Lugo, actor to the risk. 667 correct? present The evidence in the S.W.2d A: That is correct. appellant acted “inad case established that him, vertently.” means “inatten by frightening “Inadvertent” Q: And retrieve NEW your ring, is that correct? tive.” THIRD INTER WEBSTER’S (3d 1140 NATIONAL ed. DICTIONARY thought just give it to A: I 1976). “inattеntive,” If appellant was hurting me. I had intention of detect, recognize the spot, failed to risk. anyone. Therefore, that ap the record establishes Q: point intent was to Your pellant perceive failed the risk. Schoel- say, ring,” “I want my him and negli man held that the issue of criminal that correct? gence should have been submitted A: Yes. Likewise, 644 at 734. S.W.2d you Q: you did did not? And criminally negligent homicide Yes. A: required present case. lengths great to tell majority goes have Q: you I knоw didn’t to have Appeals that the Court of Criminal it, you gun in intent to fire had the Lugo court did not mean what said say your you hand and it accidental-' pointing the act about off, you ly pull then didn’t went of, raising requiring charge the issue Tillery trigger, gun, Mrs. hit on, the lesser included offense you isn’t that what said? majority fails in negligent homicide. The grabbed. A: She Indeed, distinguish Lugo. its efforts to go off? Q: And that caused quotes Lugo relies on Schoelman correct. A: That’s in the the accused lat above hold Accоrdingly, I would ter case. you if Q: right. All But had intended refusing to charge anyone, you had the trial court erred Buford or all shoot trigger? pull homicide. Conse to do was appellant’s I first quently, would sustain Sir, that to I presumed I be true. A: and remand. ground of error and reverse trigger gun, pulled never on that intentionally, my life. Furthermore, sustain I would ground for the reasons stat at 731-32. third of error S.W.2d my ed in dissent Thomas confession: Appellant’s written 1981), (Tex.App. — Dallas her, Joyce gun pointed at I had the aff'd, 638 S.W.2d 481 gun, I inad- toward the out reached banc). Therefore, (en I also reverse off. jerked and a shot went vertently reason. additional and remand for that I and then realized she Joyce fell down was shot. case, present

In and the both Schoelman per pointed another

the accused Schoelman, showed

son. “grabbed” victim

that the

Case Details

Case Name: Borns v. State

Court Name: Court of Appeals of Texas

Date Published: Jul 3, 1984

Citation: 674 S.W.2d 879

Docket Number: 05-83-00339-CR

Court Abbreviation: Tex. App.