Charles EVANS, Appellant, v. The STATE of Texas, Appellee.
No. 63859.
Court of Criminal Appeals of Texas, En Banc.
July 16, 1980.
599 S.W.2d 943
“Possession of marihuana, however, need not be exclusive and evidence which shows that the [defendant] jointly possessed the marihuana with another is sufficient. (citations omitted) Mere presence at a place where narcotics or dangerous drugs are possessеd does not in itself justify a finding of joint possession.”
In this case, there was evidence that at some time marihuana had been smoked in the car. There was no testimony as to whether the marihuana had been smoked recently. The appellant was the driver of the car. The marihuanа was under the seat on the passenger side. It is not clear from the record how many persons were in the car.2 The appellant did not own the car.
Where the accused is not in the exclusive control of the place where the contraband is found, it cannot be concluded that he had knowledge of the contraband and control of it unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. Duff v. State, supra. See Heltcel v. State, 583 S.W.2d 791 (Tex.Cr.App.1979); Wiersing v. State, 571 S.W.2d 188 (Tex.Cr.App.1978). There was no showing by independent facts and circumstances that the appellant exercised care, control or management over the contraband. As there is insufficient evidence to show possession of the contraband, the judgment is reversed, and remanded to the trial court with instructions to enter a judgment of acquittal.
Robert A. Scardino, Jr., James T. Stafford, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty., Larry P. Urquhart and Keno Henderson, Asst. Dist. Attys., Houston, Robert Huttash, State‘s Atty., Austin, for the State.
PHILLIPS, Judge.
This is an appeal from a conviction for capital murder. The jury affirmatively answered the first and second punishment issues. See
Appellant urges that the trial court erred in refusing to submit the third punishment issue to the jury.
(b) On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:
. . . . .
(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceаsed.
Appellant contends that this issue was raised by the evidence and that he timely requested the court to submit the issue to the jury. We agree with appellant‘s contention and reverse.
The record reflects that appellant entered a jewelry store armed with a pistоl to commit a robbery. The manager of the store also had a pistol, and in an exchange of gunfire with appellant he was killed. At the guilt-or-innocence phase of appellant‘s trial, the State introduced into evidence parts of appellant‘s written confеssion. See Harrington v. State, 547 S.W.2d 616 (Tex.Cr.App.1977); Otts v. State, 116 S.W.2d 1084 (Tex.Cr.App.1938). The pertinent parts are as follows:
. . . I headed toward the back counter, an old man stepped toward the counter like he was going to help me, there was another old woman sitting back be
hind him. When I got to the counter I came up with the pistol, and jumped over it. The old man took a step back and then he came up with a pistol, I don‘t know where it came from. I started shooting and he shot. It all happened real fast . . . I didn‘t realize until after I got in the car that I had been hit. I was shot in the right thigh, it was a through and through shot.
On cross-examination of the police officer through whom the State had introduced parts of the confession, appellant introduced into evidence other parts of the confession. See Harrington, supra; Otts, supra. When the parts introduced by the State and appellant are combined, the pertinent parts read as follows (parts introduced by aрpellant are italicized):
. . . I headed toward the back counter, an old man stepped toward the counter like he was going to help me, there was another old woman sitting back behind him. When I got to the counter I came up with the pistol, and jumped over it. The old man took a step back and then he came up with a pistol, I don‘t know where it came from. He had it pointed at me and he shot. I started shooting and he shot some more. It all happened real fast . . . I didn‘t realize until after I got in the car that I had been hit. I was shot in the right thigh, it was a through and through shot.
* * * * * *
I want to say that shooting that man was the fartherest (sic) thing in my mind, things just happened so fast.
In urging that the third punishment issue was raised by the evidence, appellant relies primarily upon his confession. Appellant maintains that the confession “by its very language raises the issue of provocation.”
In Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975), this Court held the death penalty statutes constitutional because they limited the stаndardless imposition of capital punishment. The Court assigned great weight to the role that the three punishment issues would play in limiting standardless jury discretion:
. . . These questions direct and guide their deliberations. They channel the jury‘s consideration on punishment and effectively insure against the arbitrary and wanton imposition of the death penalty.
In Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the Supreme Court agreed that the death penalty statutes were constitutional. The Court emphasized the critical role of the three punishment issues:
. . . The Texas statute does not explicitly speak of mitigating circumstancеs; it directs only that the jury answer three questions. Thus, the constitutionality of the Texas procedures turns on whether the enumerated questions allow consideration of particularized mitigating factors.
* * * * * *
The Texas Court of Criminal Appeals has not yet construed the first and third questions . . .; thus it is as yet undetеrmined whether or not the jury‘s consideration of those questions would properly include consideration of mitigating circumstances. In at least some situations the questions could, however, comprehend such an inquiry. For example, the third question asks whether the conduct of the defеndant was unreasonable in response to any provocation by the deceased. This might be construed to allow the jury to consider circumstances which, though not sufficient as a defense to the crime itself, might nevertheless have enough mitigating force to avoid the death рenalty . . . We cannot, however, construe the statute; that power is reserved to the Texas courts. [Emphasis added]
Jurek v. Texas, supra, at 272, 96 S.Ct. at 2956, and id. at note 7.
In Brown v. State, 554 S.W.2d 677 (Tex.Cr.App.1977), the defendant contended that
This broader interpretation of the provocation issue is in accord with the views of at least one commentator. See Crump, Capital Murder: The Issues in Texas, 14 Hous.L.Rev. 531, 560 (1977). This commentator made the following cоmments concerning the kind of evidence required to raise the provocation issue:
If read literally, the issue would apply only in situations wherein the offense is really voluntary manslaughter rather than capital murder. Indeed, the requirement that the killing be reasonable is a more diffiсult requirement to meet than that for reduction to manslaughter. It would appear, therefore, that the question ought to be submitted even in circumstances where the conduct is marginal in its reasonableness. Thus, an imperfect self-defense issue, even if so imperfect that it would not justify rеduction to manslaughter, should be considered sufficient to raise the issue and require the provocation question to be submitted.
For example, the slight self-defense issue in Smith v. State, [540 S.W.2d 693 (Tex.Crim.App.1976)] which involved a prototypical claim of “hip-pocket motion” by the deceased, was sufficient to raise the provocation issue, and it was wisely submitted to the jury by the trial court. [Emphasis added]
Id.
We reaffirm our holding in Brown, supra, and construe the third punishment issue to permit the jury to consider particularized mitigating circumstances. We specifically construe this issue to include the situation where the evidence raises an imperfect self-defense claim. We think the Legislature intended this type of situation to fall within the ambit of the third issue. A more restrictive interpretation would render this issue a virtual nullity, and we presume the Legislature did not intend such a result. We merely pause to observe that the construction we adopt today is similar to the possible construction mentioned by the Supreme Court in Jurek v. Texas, supra.
When we apply our construction of the third punishment issue to the facts in the present case, it is clear beyond doubt that appellant was entitled to have this issue submitted to the jury. According to appellant‘s confession, beforе he fired any shots the manager of the jewelry store pointed a pistol at him and fired it. Because appellant entered the store with a pistol to commit a robbery, he had no legal right of self-defense against the manager. See Davis v. State, 597 S.W.2d 358 (Tex.Cr.App.1980); Dickson v. State, 463 S.W.2d 20 (Tex.Cr.App.1971). Appellant therefore was not еntitled to have the self-defense issue submitted to the jury at the guilt-or-innocence phase of his trial. Nevertheless, his imperfect self-defense claim warranted submission of the provocation issue at the penalty phase.
Firing his pistol only after being fired upon rendered appellant less culpable than an armed robber who kills without provocation. The jury should have been allowed to consider this mitigating circumstance in the context of the third punishment issue. Appellant‘s imperfect self-defense claim may have been sufficiently mitigating to warrant a sentence of life imprisonment.
The sole purpose of the punishment issues is to aid the jury in determining whether the proper punishment is life imprisonment or death. Because the provocation issue was not submitted, the jury failed
The State argues that failure to submit the provocation issue did not constitutе reversible error for three reasons. First, the State contends that appellant‘s request for submission of the issue did not comply with
MR. STAFFORD [Defense Counsel]: May I state thе objection to the Court‘s charge.
We respectfully request the Court at this time, in response to the Court‘s charge as to the punishment phase of the trial, that the Court submit special issue Number 3, under Article 37.071, because I think there is sufficient evidence before the Court, before the jury, to answer this question and we would respectfully ask the Court include such issue in this charge.
THE COURT: Request is denied.
The State next contends that the parts of the confession that appellant introduced into evidence did not constitute substantive evidence and therefore could not raise the provocation issue. The State relies on 7 Wigmore, Evidence § 2113 (3d ed. 1940). This reliance is misplaced. A recent revision of this treatise shows that numerous courts, including this Court, have rejected the contention that the State advances. 7 Wigmore, Evidence § 2113 n. 7 (Chadbourn rev. 1978); see Rivera v. State, 406 S.W.2d 466 (Tex.Cr.App.1966); Trammell v. State, 167 S.W.2d 171 (Tex.Cr.App.1942).
Finally, the Statе contends that the parts of the confession that appellant introduced into evidence did not raise the provocation issue, but merely showed that the deceased attempted to defend himself lawfully. The State further contends that the deceased‘s responsе was reasonably foreseeable, and therefore appellant was not entitled to have the provocation issue submitted.
The State‘s argument ignores the purpose of the punishment issues. They cannot relieve a defendant of criminal liability; they serve only to guide thе jury‘s deliberations on punishment. That the deceased acted lawfully or that his conduct was reasonably foreseeable does not deprive appellant of his right to have the jury consider mitigating circumstances. The evidence raised the provocation issue, and it shоuld have been submitted to the jury.
We also note an additional ground of error that requires us to reverse this judgment. Appellant contends that the trial court erred in overruling his motion to quash the indictment because it failed to state the name of the alleged robbery victim. We recently have held that overruling such a motion constitutes reversible error. Brasfield v. State, 600 S.W.2d 288 (opinion on State‘s motion for rehearing, decided 1980); see King v. State, 594 S.W.2d 425 (Tex.Cr.App.1980).
The judgment is reversed and the cause remanded.
ONION, Presiding Judge, concurring.
This appeal is from a conviction for capital murder committed during the course of
At the outset we are confronted with appellant‘s contention that the trial court erred in overruling his timely presented motion to quash the indictment because it failed to allege the name of the robbery victim which was essential as part оf the aggravation and to elevate the charged offense from murder (
I would adhere to Brasfield and reverse this conviction on that ground alone. I would not reach the question of whether the trial court also erred in not submitting the third special issue under
For the reasons stated, I concur.
ODOM, J., joins in this concurrence.
DOUGLAS, Judge, dissenting.
The conviction should not be reversed. The indictment should be held to be sufficient. See the dissenting opinion in Brasfield v. State, 600 S.W.2d 288 (Opinion on State‘s Motion for Rehearing, 1980).
Notes
The following statement by the witness on cross-examination seems to indicate that more than two persons were in the car.
“Q. Okay. Did he say something to that effect, it [the car] belonged to the passenger, Danny Luna?
A. He didn‘t give a name at the time.
Q. Okay, but isn‘t that who he indicated was the Mexican male in the front seat?
A. Well, I don‘t recall him indicating anyone other than one of the occupants of the car at that time.”
(Emphasis added)