Ronnie Louis JONES, Appellant, v. The STATE of Texas, Appellee.
No. 05-83-00956-CR.
Court of Appeals of Texas, Dallas.
Feb. 11, 1985.
687 S.W.2d 425
The record, in this case, does not disclose how the convictions for the three driving while intoxicated offenses were entered, except that they were entered on the same day. It does, however, reflect that each was a separate conviction for a separate offense, and that the eighteen month suspensions were for the second and third convictions, both of which were for offenses committed subsequent to the first offense. The enhancement statute specifically provides that the second offense must have occurred after the first conviction. In contrast, article 6687b, section 24(b) provides for an eighteen month suspension if the license is suspended “for a subsequent time.” By their plain meaning, the words “said subsequent suspension” refer to “for a subsequent time.” Appellant stipulated that the second and third suspensions were for the offenses committed after the first driving while intoxicated offense. We hold that this meets the requirements of article 6687b, section 24(b).
Moreover, even if the convictions were not “subsequent” and if, therefore, there were three twelve month suspensions, appellant‘s position requires a second conclusion. For all three suspensions to have expired, they must have run concurrently. Appellant‘s driving record, certified by the Department of Public Safety, indicates that the suspensions run concurrently. Notwithstanding this recitation, the suspensions must, as a matter of law, run consecutively. Texas Department of Public Safety v. Preble, 398 S.W.2d 785 (Tex.Civ. App.-Houston 1966, no writ); Tatum v. Texas Department of Public Safety, 241 S.W.2d 167 (Tex.Civ.App.-Austin 1951, writ ref‘d). Therefore, we hold that the first suspension expired on March 9, 1982, and the second suspension began on that date. On March 24, 1982, appellant‘s drivers license was suspended whether the second suspension was for eighteen months or for twelve months.
The judgment of the trial court is affirmed.
John Nation, Ann B. Wetherholt, Asst. Dist. Attys., Dallas, for appellee.
Before STEPHENS, WHITHAM and GUILLOT, JJ.
Ronnie Louis Jones appeals a conviction for felony murder. Punishment was assessed at confinement for sixty years in the Texas Department of Corrections. Jones asserts three grounds of error. We overrule all grounds and affirm.
In his first ground of error, Jones contends the trial court erred in not instructing the jury on the lesser included offense of voluntary manslaughter. Jones asserts that the circumstances portrayed in his written statement, given to the police after his arrest, show that the homicide in this case was committed under the influence of sudden passion so as to require a jury instruction on voluntary manslaughter. In his statement to the police, Jones admitted that while burglarizing the deceased‘s home, he was surprised by the deceased who was armed with a knife. His statement continues:
Jackie [the deceased] swung at me with the knife. I dropped the clock and ran toward the living room door. The door was locked and I could not get out. I turned around and put my hands up and fell back in a chair. I told her to let me go and Jackie said she was going to kill me because I was trying to rip her off. Jackie stabbed me in the left leg with the knife. I said woman you done stuck me, just let me go. Jackie stuck me on the right and left arms with the knife. Jackie then raised the knife up to stab me in the chest. I grabbed her as I came up out of the chair and threw her on the couch. I took the knife away from her. I started backing up and Jackie had a hold of my shirt. I was backing toward the kitchen and was going to leave out of the kitchen door. When I got to the kitchen door Jackie reached to open one of the kitchen drawers to get a knife. I told her to let me go and she stated I am going to kill your ass. Everything got blurry then and I started to stab her because I thought she was going to kill me. I stabbed Jackie two or three times with the knife, I had taken away from her. Jackie let go of my shirt and I ran out the door.
A charge of voluntary manslaughter in a murder prosecution is mandatory only when there is evidence that the defendant acted under the immediate influence of sudden passion arising from an adequate cause. Hobson v. State, 644 S.W.2d 473, 477-478 (Tex.Crim.App.1983); Luck v. State, 588 S.W.2d 371, 374 (Tex. Crim.App.1979), cert. denied, 446 U.S. 944, 100 S.Ct. 2171, 64 L.Ed.2d 799 (1980). Manslaughter is defined by the Texas Penal Code as follows:
(a) A person commits an offense if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this code, except that he caused the death under the immediate influence of sudden passion arising from an adequate cause.
(b) “Sudden passion” means passion directly caused by and arising out of provocation by the individual killed or another acting with 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.
In the instant case, we find no evidence which would raise the issue that at the time of the offense Jones was acting under the immediate influence of sudden passion arising from an adequate cause. The only evidence with regard to the propriety of a voluntary manslaughter charge is found in Jones’ statement to the police. From that statement it is clear that Jones initiated the provocation leading to the deceased using a knife by breaking into her house to steal. The statement reads in pertinent part “... Jackie said she was going to kill me because I was trying to rip her off.” Sudden passion must be directly
In the case of Daniels v. State, 645 S.W.2d 459 (Tex.Crim.App.1983), a bare claim of fear was found to be insufficient to raise the issue of whether one was acting under the immediate influence of sudden passion arising from an adequate cause. In the instant case, Jones did not make a “bare claim of fear;” Jones never stated he was in any fear. Regardless of this fact, Jones contends that his statement shows “frenzied, provoked actions against a relentless attacker which enraged and frightened him to the point that everything was blurry.” Jones’ statement shows two things: (1) Jones had the knife; and (2) the drawer that deceased “reached to open” was closed. Jones’ statement assumes the deceased was reaching for a kitchen drawer for a knife. The fact that Jones surmised the deceased could reach a knife did not show the requisite fear, only a conscious awareness of danger. Because there is no showing that Jones stabbed the deceased under circumstances which would constitute the offense of voluntary manslaughter, Jones’ first ground of error is overruled.
In his second ground of error, Jones contends the trial court erred in denying the motion to dismiss his indictment for failure to comply with the Speedy Trial Act.
The standard for dismissal under Article 32A.02, section 1, “that the State is not ready for trial,” refers to the preparedness of the prosecution for trial and does not encompass the trial court and its docket.
In his third ground of error, Jones asserts the trial court committed reversible error by excluding the testimony of Police Chief Billy Prince after hearing his testimony outside the presence of the jury, pursuant to the state‘s motion in limine. Jones argues that Prince was called to show the six officers who testified were biased against Jones.
Trial courts have considerable discretion as to how and when bias may be proved and as to what collateral evidence is material for that purpose. Cloud v. State, 567 S.W.2d 801 (Tex.Crim.App.1978).
The extent to which a witness may be cross-examined for the purpose of showing bias on a collateral matter rests on the sound discretion of the trial judge. The trial judge must balance the probative value of evidence sought to be introduced against the risk its admission may entail. Cloud, 567 S.W.2d at 802. Such potential risks include the possibility of undue prejudice, embarrassment or harassment either to the witness or to a party, the possibility of misleading or confusing the jury, and the possibility of wasting time. Cloud, 567 S.W.2d at 803; see also Howell v. American Livestock Insurance Company, 483 F.2d 1354 (5th Cir.1973); United States v. 412.93 Acres of Land, 455 F.2d 1242 (3rd Cir.1972). The witnesses’ testimony indicates they testified only to what they saw and did at the scene of the crime. Furthermore, it is beyond dispute that the deceased was killed by multiple stab wounds and that Jones admitted his involvement.
Prince‘s testimony does not show any potential for bias on the part of any of the witnesses. In essence, Jones was asking the trial court to allow him to impeach Prince on the basis of speculation as to pressure the two witnesses might have felt to testify favorably for the State. Speculation about a witness’ ulterior motives for testifying against the defendant is of little probative value as impeachment. Such speculation invites harassment of the witness, can delay the trial, and can confuse the issues and the jury. Carrillo v. State, 591 S.W.2d 876, 887 (Tex.Crim.App. 1979). The trial court‘s exclusion of Prince‘s testimony was not an abuse of discretion. Jones’ third ground of error is overruled.
The judgment of the trial court is affirmed.
STEPHENS, J., files a dissenting opinion.
STEPHENS, Justice, dissenting.
I respectfully dissent. The majority has determined that appellant‘s written statement constitutes no evidence that he was acting under the immediate influence of sudden passion arising from an adequate cause when he inflicted stab wounds on the decedent, causing her death. I disagree.
The majority opinion correctly recites the principle that a charge of voluntary manslaughter in a murder prosecution is mandatory only when there is evidence that the defendant acted under the immediate influence of sudden passion arising from an adequate cause. Hobson v. State, 644 S.W.2d 473, 478 (Tex.Crim.App.1983) (en banc). However, this principle must be considered together with other principles of law concerning lesser included offenses. In Hobson, the Court stated that the question is whether “some” evidence that the defendant was acting under such “immediate influence” is present. Hobson v. State at 478.
In reaching its decision as to the propriety of a charge on involuntary manslaughter, the trial court must consider all evidence, and if any evidence, whether contradicted or not, raises an issue that a lesser included offense may have been committed, the trial judge must include a proper instruction on the lesser included offense.
Several conclusions are reached by the majority in their analysis of appellant‘s statement, with which I disagree. The majority concludes that “Jones did not even make a bare claim of fear;” that “Jones initiated the provocation leading to the deceased using a weapon by breaking into her house to steal;” and that “the fact that Jones thought the deceased could reach a knife did not show the requisite fear, only a conscious awareness of danger.” Judge Clinton, in Daniels v. State, 645 S.W.2d 459, (Tex.Crim.App.1983) (en banc), stated that “‘a bare claim of ‘fear’ does not demonstrate ‘sudden passion arising from adequate cause,‘” yet, he recognized that “on the other hand ‘fear’ that rises to the level of ‘terror’ may constitute sudden passion when its cause is such that would commonly produce a degree of terror ‘sufficient to render the mind incapable of cool reflection.‘” In Lugo, the court adopted the language used in several earlier cases for the proposition that the trial court‘s judgment of the strength or weakness of the evidence is not controlling. Being the prerogative of the jury to pass upon the probative force of the evidence, the appellant has the right to have a jury and not the court decide the effect of such evidence.
With these guidelines in mind, I conclude that a rational trier of fact could have found that the appellant, upon being caught in the apartment, sought to flee without the intention of harming anyone. When cornered, he fell into a chair and, in an attempt to protect himself, wrestled the knife from his assailant. After gaining possession of the knife, he again retreated, trying to escape, but when he saw the assailant reach for the drawer he thought she was reaching for a knife. He then told her to “let him go,” to which she responded, “I am going to kill your ass.” It was at this point in time that “Everything got blurry then and I started to stab her because I thought she was going to kill me.” Under these circumstances a rational trier of fact, viewing the circumstances with the eyes of an ordinary man, could have well concluded that appellant‘s fear rose to the level of terror which rendered him incapable of cool reflection, and acting under this immediate state of passion, he inflicted the fatal stab wounds.
I would reverse and remand the cause for the failure to include the lesser included offense of voluntary manslaughter in the charge.