Steven Mark JOHNSON, Appellant, v. The STATE of Texas, Appellee.
No. 824-89.
Court of Criminal Appeals of Texas, En Banc.
July 3, 1991.
Rehearing Denied Sept. 18, 1991.
815 S.W.2d 707
In appellant‘s forty-ninth pro se point of error, he argues that his right to due process under the
Appellant alleges that the parents of Kenneth Franks and Gayle Kelley perjured themselves over the reasons why they were in the Methodist Children‘s Home. These are little more than bald-faced assertions in appellant‘s brief which we shall not deign to review in our opinion. They are definitely unsupported by the record. Appellant also alleges that exculpatory and prior inconsistent statements would show: Gayle Kelley did not live with Patty Dies at the time of the burglary (her own testimony at trial showed that she moved in with Patty on the day of the reporting of the second burglary); the actual date that appellant‘s store was placed off-limits to the kids at the Children‘s Home (the record indicates appellant had complete access to the records of the Home prior to trial); that Christine Juhl would have exculpatory testimony about appellant‘s alleged conversations with others (there is nothing in the record to show the state did anything to deny appellant‘s access to Juhl); and that the state kept him from George Merilian‘s testimony (this is also unsupported by the record.).
Appellant‘s claims of denial of his due process and due course of law rights are without merit. Appellant‘s forty-ninth pro se point of error is overruled.
The judgment of the trial court is reversed and the cause is remanded to that court.
McCORMICK, P.J., concurs in the result.
J. Frank Long, Dist. Atty., Alwin A. Smith, Asst. Dist. Atty., Sulphur Springs, and Robert Huttash, State‘s Atty., Austin, for the State.
OPINION ON APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW
McCORMICK, Presiding Judge.
Appellant, Steven Mark Johnson, was convicted of murder in a trial by jury. After making an affirmative finding that appellant used a deadly weapon, the jury assessed punishment at forty years’ confinement and a $10,000 fine. The Texarkana Court of Appeals affirmed the conviction and held, inter alia, that (1) appellant was notified in the indictment that “use of a deadly weapon” would be an issue in the prosecution and (2) since there was more than a “mere modicum” of evidence, the evidence was sufficient to support the jury verdict. Johnson v. State, 770 S.W.2d 72 (Tex.App.-Texarkana 1989). This Court granted appellant‘s petition for discretionary review to examine both of these holdings. We will affirm appellant‘s conviction.
Appellant and his wife had a history of domestic trouble and on April 19, 1987, after spending a night out on the town they fought. The fighting began immediately upon their return home; appellant‘s wife was “wired” and wanted to go back out. Appellant, however, after having his amorous advances rejected by his wife, was tired and wanted to go to sleep. A shouting match commenced with appellant‘s wife telling him in graphic detail that she had been sexually involved with co-workers and that she was leaving at once to go have sex with his best friend. She left, locking the door behind her, and appellant went to sleep. Shortly thereafter, appellant‘s wife returned and broke a window to get in the house. A second confrontation ensued, but this time the shouting escalated into an exchange of blows.
The next morning appellant‘s wife was hospitalized and underwent immediate exploratory surgery; doctors had to repair a tear in her liver. She had numerous other internal injuries, but her chances of recov
At trial, appellant testified that on the night of the fight, “she [his wife] continued to tell me what she had been doing ... She elaborated on it a great deal, you know, telling me about how good it was and how many people she had been sleeping with. I lost control.” Appellant testified that, because of this, he began hitting and kicking her. After the jury was properly instructed on both murder and manslaughter, see Cobarrubio v. State, 675 S.W.2d 749 (Tex.Cr.App.1983), they found appellant guilty of murder and expressly found that appellant had used a deadly weapon in the course of the offense.1
Appellant first contends the indictment did not notify him of the State‘s intent to seek a finding on use of a deadly weapon because it did not employ any form of language that would provide notice nor did it expressly refer to “deadly weapon” or a “deadly weapon per se.” This Court stated in Ex parte Beck, 769 S.W.2d 525, 526 (Tex.Cr.App.1989), that any allegation in an indictment that death was caused by a named weapon or instrument “necessarily includes an allegation that the named weapon or instrument was, ‘in the manner of its use ... capable of causing’ (since it did cause) death.” (Emphasis in the original.) See
The allegation in the indictment charging appellant with “causing death by striking with [his] feet and hands” clearly gave notice that the State would attempt to prove “feet and hands” were used as deadly weapons and, consequently, that the prosecution would seek an affirmative finding as to appellant‘s use of these deadly weapons. See Mixon v. State, 804 S.W.2d 107 (Tex.Cr.App.1991) (death caused by “unknown object” provides notice); Gilbert v. State, 769 S.W.2d 535 (Tex.Cr.App.1989) (“serious bodily injury caused by placing complainant in hot liquid” provides notice); Speering v. State, 797 S.W.2d 36 (Tex.Cr.App.1990) (“death caused by strangulation and stabbing” provides notice); Rice v. State, 771 S.W.2d 599 (Tex.App.-Houston [14th Dist.] 1989, no pet.) (“death caused by gasoline” provides sufficient notice). Accordingly, the Court of Appeals correctly determined the notice provided by the indictment in this case was sufficient and the affirmative finding by the jury was proper.
Appellant next contends the evidence was legally insufficient to support the jury verdict of murder because he raised the issue of “sudden passion,” and the State failed to negate sudden passion beyond a reasonable doubt.
In Texas, a person commits murder if he “intentionally or knowingly causes the death of an individual.”
Nevertheless, in a plurality opinion subsequent to Braudrick, this Court held that sudden passion is not a defense or even in the nature of a defense to murder. Bradley v. State, 688 S.W.2d 847, 849 (Tex.Cr.App.1985). Rather, in a case such as the one at bar, where murder is charged but the evidence raises the issue of sudden passion, the negation of sudden passion becomes an “implied element” of the offense of murder.3 Bradley, 688 S.W.2d at 851.
This manipulation of “sudden passion” has placed the State in the ludicrous position of having to prove a negative, that is, the absence of “sudden passion.” See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, 375 (1970) (United States Supreme Court declared that due process “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged“). In Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the Supreme Court expressly declared that due process “requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case.” But cf. Patterson v. New York, 432 U.S. 197, 206-207, 97 S.Ct. 2319, 2324-2325, 53 L.Ed.2d 281, 289-290 (1977) (New
the person killed which passion arises at the time of the offense and is not solely the result of former provocation.
“(c) ‘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.”
The Supreme Court observed in Mullaney that:
“It has been suggested ... that because of the difficulties in negating an argument that the homicide was committed in the heat of passion the burden of proving this fact should rest on the defendant. No doubt this is often a heavy burden for the prosecution to satisfy. The same may be said of the requirement of proof beyond a reasonable doubt of many controverted facts in a criminal trial. But this is the traditional burden which our system of criminal justice deems essential.
“Indeed, the Maine Supreme Judicial Court itself acknowledged that most States require the prosecution to prove the absence of passion beyond a reason-able doubt. [citation omitted]. More-over, the difficulty of meeting such an exacting burden is mitigated in Maine where the fact at issue is largely an ‘objective, rather than a subjective, behavioral criterion.’ [footnote omitted]. In this respect, proving that the defendant did not act in the heat of passion on sudden provocation is similar to proving any other element of intent; it may be established by adducing evidence of the factual circumstances surrounding the commission of the homicide.” Mullaney, 421 U.S. at 701-702, 95 S.Ct. at 1891, 44 L.Ed.2d at 521.
Therefore, if the issue of “sudden passion” is raised but a jury finds a defendant guilty of the offense of murder as alleged in the indictment, this Court will make two determinations in a sufficiency analysis: “(1) whether the evidence was sufficient to establish the offense of murder and (2) whether the evidence was sufficient to disprove the issue of [sudden passion].” Jefcoat v. State, 644 S.W.2d 719, 725 (Tex.Cr.App.1982) (panel opinion and rehearing denied by Court en banc). “To prove the absence of sudden passion, the State may present evidence tending to establish its converse—e.g., that at the moment he intentionally or knowingly killed, appellant was capable of, and did in fact act with cool reflection, in spite of circumstances that may well have been provocative.” Gold v. State, 736 S.W.2d 685, 690 (Tex.Cr.App.1987).
For example, a jury could reject sudden passion, even though it was raised by the evidence,
“if the jury finds there was no provocative conduct, or at least none occurring at the time of the offense, then of course there is no finding of cause at all, much less ‘adequate cause.’ Alternatively, the jury could find there was provocative conduct, even adequate to render an ordinary man incapable of cool reflection, but that nonetheless, the defendant himself acted coolly and deliberately. Finally, it could find there was provocative conduct, that the defendant was in fact provoked, but that the provocation was not such as would render a man of ordinary temper incapable of cool reflection.” Gold, 736 S.W.2d at 690, n. 3, citing Gonzales v. State, 717 S.W.2d 355, 361 (Tex.Cr.App.1986) (Clinton, J., dissenting.)
A jury may not, however, find facts necessary to establish the absence of sudden passion “purely on the basis of its disbelief of the accused‘s contrary assertions“; the State bears the burden of presenting the factfinder with sufficient evidence to negate any claim of sudden passion beyond a reasonable doubt. Gold, 736 S.W.2d at 689.
When this Court is called upon to evaluate the sufficiency of evidence, we determine “whether, after viewing the evi
“The court is never to make its own myopic determination of guilt from reading the cold record. It is not the reviewing court‘s duty to disregard, realign or weigh evidence. This the factfinder has already done. The factfinder, best positioned to consider all the evidence first-hand, viewing the valuable and significant demeanor and expression of the witnesses, has reached a verdict beyond a reasonable doubt. Such a verdict must stand unless it is found to be irrational or unsupported ... by the evidence, with such evidence being viewed under the Jackson light. Concrete application of the Jackson standard is made by resolving inconsistencies in the testimony in favor of the verdict.” 755 S.W.2d at 867 (footnote omitted).6
We shall now address appellant‘s claim of insufficient evidence using the Jackson standard as construed by Moreno.
First, a rational factfinder could decide that the wife‘s statements taunting appellant with tales of her claimed sexual escapades were insufficient to constitute an “adequate cause” for sudden passion. Appellant testified that “[s]he had said things like that to me before.” In fact, appellant did not strike his wife the first time that night she taunted him with the statements. Rather, when she threatened to go sleep with his best friend, he merely told her “just go ahead and go.” Appellant testified that after watching her drive off, he lay down to go to sleep. When appellant‘s wife returned and the second fight began, appellant admits that she did not taunt him with anything that he had not heard before. Indeed, he confessed that he had “cooled down” by the time she returned. In addition, there was testimony that appellant had a bad temper; not only had he previously battered his wife (she had been admitted to the hospital in February of 1987), but appellant had also physically abused his first wife.
Moreover, even if the jury did believe the taunts were sufficient to provoke appellant initially, a rational factfinder could still determine that appellant continued to inflict the injuries leading to his wife‘s death long after “sudden passion” would have subsided in a person of ordinary temper. Appellant testified that when his wife returned the second time, he tried to calm her down.
“I wasn‘t going to fight with her. She‘d hurt me bad enough. There was no use in having anything to do with her anymore. She then told me what she‘d been doing. What she was going to continue to do. She told me it was over. And I told her it was over and I couldn‘t see no point in pursuing the issue any further ... She continued to want to fight. She come up and was pounding on my chest. I grabbed hold of her hands to make her quit and try to get her just to leave.”
“I wanted to calm her down and talk rationally with her and just explain to her that it wasn‘t worth it. She continued to tell me what she‘d be [sic] doing, and she was very elaborate. She elaborated on it a great deal, you know, telling me about how good it was and how many people she‘d been sleeping with. I lost control.”
Appellant admitted that he had no idea how many times he struck her, but the very nature of his wife‘s injuries reveals that appellant did not strike her with a single blow in reaction to her taunts or in an attempt to make her cease taunting.7 Rather, he hit and kicked her repeatedly, causing broken ribs, serious internal injuries, and a face swollen beyond recognition. Furthermore, when the fighting did finally cease, appellant picked his wife up off the floor and left her in the bathroom while he went to bed and once again fell asleep. He had no idea how long the encounter took. We concede that there are contradictions in the testimony. But if these contradictions are resolved in favor of the verdict pursuant to our guidelines in Moreno, there is clearly enough evidence for any rational juror to find that, even if provoked, appellant either began or continued to strike his wife when a man of ordinary temper would have exercised restraint.
Accordingly, we hold that a rational trier of fact could find the absence of either “adequate cause” or “sudden passion” beyond a reasonable doubt; therefore, there is sufficient evidence to support the jury‘s verdict of murder.
The judgment of the Court of Appeals is affirmed.
CAMPBELL, J., concurs in the result.
MALONEY, J., dissents.
CLINTON, Judge, concurring on appellant‘s petition for discretionary review.
I agree with the majority‘s ultimate resolution of appellant‘s second ground for review here. In my view the court of appeals correctly affirmed appellant‘s conviction on authority of this Court‘s decision in Gold v. State, 736 S.W.2d 685 (Tex.Cr.App.1987), even allowing for our later rejection of Gold‘s regrettable “mere modicum” articulation of the standard, in Butler v. State, 769 S.W.2d 234 (Tex.Cr.App.1989). The majority overreaches, however, to “acknowledge” that the holding of the plurality in Bradley v. State, 688 S.W.2d 847 (Tex.Cr.App.1985), since endorsed by a majority of the Court in cases such as Gold and Lawrence v. State, 700 S.W.2d 208 (Tex.Cr.App.1985), was somehow “unnecessary.” At 710, n. 3. The Court has a short memory indeed.
In Braudrick v. State, 572 S.W.2d 709 (Tex.Cr.App.1978), at 711, a panel of the Court held:
“that causing death ‘under the immediate influence of sudden passion arising from an adequate cause’ is in the nature of a defense to murder that reduces the offense to the lesser included offense of voluntary manslaughter, and that the State need not prove such influence beyond a reasonable doubt to establish voluntary manslaughter, but that if raised by the evidence it must prove the absence of such influence beyond a reasonable doubt to establish murder.”
It is apparent from this language, first, that the so-called “shifting of the burden of proof” inherent in requiring the State to disprove sudden passion whenever that issue is raised by the evidence in order to obtain a murder conviction, at 710, n. 3, had already occurred in Braudrick, and was not a “manipulation” novel to Bradley.
The problem with the holding in Braudrick is that it failed to acknowledge that voluntary manslaughter, as promulgated in
Nevertheless, in cases such as Paige v. State, 573 S.W.2d 16 (Tex.Cr.App.1978), the Court held in a prosecution for murder that the evidence was sufficient to support a conviction for voluntary manslaughter even though it did not raise, much less prove by sufficient evidence, the element of sudden passion. The basis for this holding was the old legal aphorism that proof of a greater offense will necessarily sustain a conviction for a lesser included offense. See also Daniel v. State, 668 S.W.2d 390 (Tex.Cr.App.1984). The innovation in Bradley was to point out that this aphorism does not hold true in every case of homicide because of the peculiar relationship between murder and voluntary manslaughter.
The offense of voluntary manslaughter is murder “except that” the murder must have been committed while the actor was “under the immediate influence of sudden passion arising from an adequate cause.”
Braudrick itself rendered voluntary manslaughter a lesser included offense under the terms of
I agree that the present statutory scheme occasionally places this Court and the courts of appeals in “the ludicrous position of acquitting a defendant when there is sufficient evidence in the record that he is guilty of murder.” Daniel v. State, 668 S.W.2d at 398 (Miller, J., concurring). That the Legislature could improve upon it is clear. See Bradley, supra, at 853, n. 13; Gold, supra, at 686, n. 1. But to say that Bradley (really Braudrick) was an “unnecessary” “manipulation” of the statutory
Therefore, I concur only in the judgment of the Court. I cannot join its opinion.
OVERSTREET, Judge, concurring on appellant‘s petition for discretionary review.
Appellant‘s ground for review no. 1 deals with what kind of notice is required to inform an accused that the State intends to seek a deadly weapon finding. The answer I believe is simple. Relying in part on Ex parte Patterson, 740 S.W.2d 766 (Tex.Cr.App.1987), I would say that the State should be required to add the simple language of “The State intends to seek an affirmative finding of the use of a deadly weapon,” either in the indictment or in a separate instrument filed with the court at the time the indictment is presented or at anytime prior to trial in order that the accused has adequate notice. With the above, I concur only in the judgment of the Court. I cannot join its opinion.
Notes
“* * *
“(b) ‘Sudden passion’ means passion directly caused by and arising out of provocation by the individual killed or another acting with
By redrafting the murder statute to make sudden passion an “implied element,” the Bradley plurality forced the State to bear the onerous burden of proving a negative—the absence of sudden passion. See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); see also Id. at 421 U.S. at 701-702, 95 S.Ct. at 1891, 44 L.Ed.2d at 521 (Supreme Court noting the heavy burden of negating sudden passion).
We now acknowledge that the Bradley manipulation of the murder statute (and the consequential shifting of the burden of proof) was unnecessary. Manslaughter could qualify as a lesser included offense of murder under Section (3) of
The Legislature could easily resolve this muddled relationship between murder and manslaughter by either making “sudden passion” a mitigating issue to be considered in the punishment phase of a trial for murder or drafting it as an affirmative defense like that in Patterson, supra. See Bradley, 688 S.W.2d at 853 n. 13 and at 853 (Miller, J., concurring); Castillo-Fuentes v. State, 707 S.W.2d 559, 565-566 (Tex.Cr.App.1986) (Teague, J., concurring); Daniel v. State, 668 S.W.2d 390, 398-400 (Tex.Cr.App.1984) (Miller, J., concurring).