Ross v. State

The judge trial denied disquali- the motion to will judge issue if the trial refuses to act fy counsel. opinion. accordance argues

Mauze judge that the trial abused

his discretion when he denied Mauze’s mo-

tion to disqualify agree. counsel. We 3.08(a)

Rule Disciplinary Texas

Rules of provides: Professional Conduct

(a) A lawyer accept shall not or continue employment in contemplated pend- or ROSS, Appellant, James Clarence

ing adjudicatory proceeding if the law- yer knows or lawyer believes that the may or be necessary a witness to estab- Texas, Appellee. The STATE of lish an essential fact on behalf of the client, lawyer’s unless: No. 69206. (1) testimony relates to an uncon- Texas, Appeals Court of Criminal issue;

tested En Banc. (2) testimony solely will relate to a 9, Dec. 1992. formality matter of and there is no rea- Rehearing son Granted Jan. to believe that 1993. substantial evidence will be opposition offered in to the testi- Opinion Reconsidering Decision in Part mony; Rehearing Jan.

(3) the testimony relates to the nature legal value of services rendered in case;

(4) lawyer party is a to the action se; appearing

and is pro or

(5) lawyer promptly op- has notified

posing lawyer expects counsel that the testify disqualifica- matter and lawyer

tion of the would work substan-

tial hardship on the client. TEXAS,

SUPREME COURT OP RULES

GOVERNING THE STATE BAR OF TEX X,

AS art. Rule 3.08 Bevil effec

tively “testified” expert as an witness

controverting affidavit in order to defeat summary judgment.

Mauze’s motion for Be-

vil’s any does not come within exceptions

the five enumerated in Rule

3.08(a). Consequently, judge trial

abused his discretion when he denied

Mauze’s counsel. See disqualify motion to Norrell,

Warrilow v. 522-23

(Tex.App. Corpus Christi writ de — nied). 122 of

Pursuant Rule the Texas Rules of Procedure,

Appellate hearing without oral majority

argument, a of the court condition-

ally grants the writ of mandamus. The writ (court

Douglas appointed M. O’Brien Houston, only), appellant. appeal for Holmes, Jr., Atty., B. and Win- John Dist. Taft, Cochran, Timothy E. Jr. and G. ston Huttash, Houston, Attys., Dist. Robert Asst. Paul, Atty., Matthew State’s State’s Asst. W. Austin, for Atty., State.

OPINION BENAVIDES, Judge. August

Appellant was convicted on intentionally kill- capital murder 1983 of ing Ted Martin in the course Ronald while See, V.T.C.A., robbery. committing a After the answered affirmatively special to both issues submitted 37.071, the trial under Article V.AC.C.P. penalty death. imposed court error Appellant presents points eleven aside the for our review. Because we will set judge for failure of the trial conviction correctly charge jury, pockets. we will review mans Robert drove to a dark points three manor of error. road the back of northwood out, got stopped. got Robert then Nix out Appellant’s points of error are based on got I car. and then out of the Robert following by appellant confession which grabbed the man on the left shoulder and I by was introduced the State: grabbed by right the man the shoulder and Friday September ap- On 1982 at then we walked the man about a 100 feet proximately p/m 8:30 Ronald Nix who is a following and Nix was behind us and I had picked up friend of mine me came and gun my right pointing the in up hand the B & B store which is located on Safe- the mans towards head. Robert said this buy. driving Ronald who was his blue enough is far and I told him no “Lets take toyota. We left the B & B store and went weeds,” him then I into the and shoved picked to northwood manor and Robert gun my right him the still in while was up at his a Lewis house. Then we went to up pointing the hand near mans shoulder friend of mines house named Clifford who I towards his head. When shoved the man Highway lives near Homestead and gun the man in went off and struck stayed smoking pot drinking We there and gun head. went off I told Rob- When p.m. until about 10 went down off We go put ert to ahead and him down and then Jensen and rode around and we started to he touched the back of his head and then home, driving, take Robert back Nix was just I I ground. he fell to the told Robert and Robert was in the front and I was in go. shot him in the head lets then left. We got freeway the back. off the some- We I him went to Roberts house and asked We Littleyork where around and Robert said money have I how much did man don’t go money. let’s make I told him I some much he had. remember how gun did not have a and he said he had one. go Robert said lets make some more pulled Robert a out of his silver money I until tomorrow. and said lets wait pocket back and handed it to the backseat a drank a little and I told We went while to me and I looked at it and I told him Robert to take me back to Nix’s car be- you going thang are this “What do with ready getting go I because it cause was passed it I shoots two times?” then getting dropped me was late. Robert and gun back to Robert in the front seat. Nix off and we went back to the house. driving were then on the feeder We by in street and Robert told Nix to turn confession, note that in addition to the We topless stop. got club and Robert out of testimony from other the State introduced up the car and walked to a white man and neighbor One testified that he sources. up guy Ronald ran and hit the white I shotgun pistol shots and a shot heard two got up don’t I know with what. As neighbor rapid in succession. Another fired white mans car which was a tan colored testified that he heard three shots fired also put thunderbird Robert and Ronald rapid Near where the victim’s succession. white man in the back seat of his car. The found, body deputy sheriff located two was lying white man was face down in the back shotgun roadway. on the Other spent shells driving, got seat I into and Robert was and appellant’s car police officers revealed that passengers the front seat on the side and house, approxi- was found at an abandoned got toyota Ronald into his and followed us. mately blocks from the murder scene. two testimony. by then went house and left The State also introduced medical Roberts toyota The medical examiner testified that the vic- got Nix’s and Nix in the front seat behind the riding with me and Robert and I was tim died from a contact wound right ear. He testified that the barrel of the the middle of front seat. The derrin- ger lying gun I to three millimeters from the in the seat and when was two skin, right side of picked up I I and the bullet entered scooted over it asked tissue, head, through brain traveled him how it and Robert told me I worked upper portion left driving lodged into the had to cock it first. While we were through going around Ronald was head. pointed upwards in an

I. tim with the brain; the manner towards his direction one, appellant of error number out into the victim the robbers walked which following state- directs our attention to the field; or re- of shock a deserted lack confession: I ment in his shoved “[w]hen victim; the state- killing the morse for off man in man the went and struck the him in just shot “[he] ment of Appellant because of argues the head.” appel- an go” lets as indication the head statement, the evidence is insufficient intentionally the death of the lant death of prove he caused the victim. Martin V.T.C.A. statement While this isolated argues further that because shooting inference may raise an that the purported exculpatory introduced state accidental, find the adduced at we evidence by appellant, the state must dis statement appellant trial is sufficient to find intentional- State, v. prove that statement. See Palafox. ly death caused the of the victim. 177, (Tex.Crim.App.1980); 181 608 S.W.2d The standard of review to deter (Tex. State, 303, County v. 812 313 S.W.2d sufficiency of to show mine the the evidence defendant, Palafox, In Crim.App.1989).1 killing is mur an intentional the same under to charged capital admitted State, capital Thompson v. der and murder. home. burglarizing the victim and his killing 627, (Tex.Crim.App.1984), 691 630 S.W.2d that he took the The confession illustrated cert, denied, 184, 865, 474 U.S. 88 106 S.Ct. murder from the house to make the items (1985). jury may 153 infer the L.Ed.2d The like a The confes appear burglary. to look weapon deadly intent to kill from the use of a exculpated him of admitted murder but sion it would not to infer unless be reasonable in charged: offense murder capital bodily injury that or serious could death robbery. the statements course of Because Godsey weapon. result from the use of the charged exculpatory the offense were (Tex.Crim. 578, 719 v. S.W.2d 581-82 those required disprove state State was App.1986). determining And in the sufficien Id., in the confession. ments evidence, cy of the must be the evidence 181. light to the

viewed most favorable trier any verdict decide whether rational The rule of law articulated Palafox of fact have ele could found the essential to the case. The inapplicable is facts of this beyond the crime ments of a reasonable Here, exculpatory. not statement 510, doubt. Dunn v. 819 513 S.W.2d prove beyond a reason State was Virginia, (Tex.Crim.App.1991); v. Jackson appellant intentionally caused doubt that able 307, 319, 2781, 2789, 99 61 443 U.S. S.Ct. Appellant argues Martin. the death of (1979). L.Ed.2d 560 the statement contained in appeal that killing an that the confession raises inference Applying the to the criteria Jackson statement accidental. While the isolated was case, we rational trier of facts of find a may be to show of itself insufficient in and beyond have found a reasonable fact could caused the death appellant intentionally doubt victim, State’s does not that the it follow of the deceased. death V.T.C.A. greater because is somehow made burden statement While the isolated into evi admitted the confession the State sup lend by appellant may his confession v. dence. Gribble argument shooting port to his that the — cert, denied, U.S. (Tex.Crim.App.1990), accidental, that was not the evidence -, 115 L.Ed.2d 1023 111 S.Ct. con jury jury A rational could reviewed. stated, “[Requiring As this court appellant’s request informa from clude beyond doubt disprove a reasonable State to derringer to fire after tion on how uninten- abducted; appellant killed the deceased placement of had been victim qualitatively quantita- nor tionally vic- is neither the ear of the underneath (Tex. September after See 1. For cases tried Ibanez Crim.App.1986). longer exists. or "voucher” rule no "Palafox” confessed, tively just shot him in requiring prove different than it to Robert I “I told beyond a from the medi- go.” reasonable doubt that he killed the head lets Evidence Gribble, intentionally.” [him] that the victim was 808 S.W.2d at cal examiner illustrated range underneath the point shot at blank right ear. There also of con- Because the evidence is sufficient to find shot, shotgun pistol secutive shots and a appellant intentionally caused the death of attempt disguise what could have an been Martin and because exculpatory there is no Additionally, the sound of the execution. statement in the confession which must be previous aggra- evidence illustrated that on disproved, appellant’s point first of error is robbery, appellant vated threatened the vic- any overruled. We note in addition that tim, head, your Nigger, you “Red raise inference of accident could be made going your we’re to blow brains.” This evi- alleged exculpatory from the statement was dence taken as a whole was sufficient for a clearly outweighed by the evidence outlined rational to find that the murder was above. Appellant’s point “deliberate.” fourth of er- ror is overruled. II. four, appel of error number lant asserts that the evidence is insufficient III. support jury’s finding the he deliber Appellant claims that the trial court erred Martin, ately required special killed failing jury on the charge lesser 37.071,

issue number one. Article V.A.C.C.P. involuntary manslaughter included offense of jury “A must ‘a find moment of deliberation in point of error number three. part and the determination on the of the justified actor to kill’ before it is in answer part This Court has enunciated two test ing ‘yes’ special issue number one.” Kin charge to determine on a lesser whether a (Tex. State, 84, namon v. 791 95-96 S.W.2d Royster required. included offense is v. Crim.App.1990). This Court will look at the State, 442, (Tex.Crim.App. 622 446 S.W.2d totality case-by- of the circumstances in a 1975); 556, State, Aguilar v. 682 S.W.2d 558 analysis case to determine whether the mur (Tex.Crim.App.1985). prong The first of Kinnamon, supra; der was “deliberate.” requires requested test that the offense to be State, (Tex. Cannon v. 691 S.W.2d 677 charged is of a lesser included offense cert, denied, Crim.App.), 474 U.S. 106 charged. Royster, offense 622 at 446. S.W.2d (1985). S.Ct. 88 L.Ed.2d 931 In deter Involuntary manslaughter is a lesser includ evidence, mining sufficiency of the prong ed offense of and the first of light evidence must be viewed in the most Royster easily test is met. Brooks v. State, favorable the verdict. Dunn v. 819 State, (Tex.Crim.App.1977) 548 S.W.2d 680 (Tex.Crim.App.1991); 513 S.W.2d Jack 307, 319, Virginia, son v. 443 U.S. 99 S.Ct. inquiry, The is there second whether 2781, 2789, 61 L.Ed.2d 560 if is some evidence in the record that guilty, guilty The evidence from the trial is sufficient for defendant is he is of jury Royster, supra; Aguilar, to find that the murder was “deliber- lesser offense. su pra. credibility ate” as for the return of an The of affirma- the evidence and special tive answer to issue number one. whether it conflicts with other evidence must deciding The evidence at trial reveals that not be considered in whether the Martin, accomplices charge given. and his robbed and on the lesser offense should be (Tex.Crim. State, drove him to his execution site. Once the Saunders v. 840 390 S.W.2d 4, 1992); accomplices App.1992) (rehearing three had reached a dark and denied Nov. (Tex.Crim. road, State, accomplices Lugo deserted the three v. 667 S.W.2d 144 if there Appellant App.1984). Martin exited the ear. and Robert We must determine is Appellant appel Martin out to the at trial which indicates walked field. some evidence lant, guilty only involuntary pointed guilty, a cocked at the victim’s if of Appellant manslaughter. head and shot the victim. also

875 manslaugh- victim was person involuntary shooting commits that the A inference This is controlled person recklessly if that causes the death a reckless act. case ter majority § 19.- of this Court of an individual. V.T.C.A. Penal where a Saunders that, person recklessly “regardless strength he is 05. “A acts ... when determined evidence, consciously disregards any of but a sub- aware weakness of the evidence or unjustifiable guilty stantial and risk that the cir- raises the issue the defendant offense, or charge cumstances exist the result will occur.” must of the lesser then the 6.03(c). Code, § 391; see, Ojeda The essen- v. given.” V.T.C.A. 840 S.W.2d at be tial difference between murder and involun- 742 (Tex.Crim.App.1986); tary manslaughter requisite (Tex.Crim.App. is mens Bell v. 693 S.W.2d 434 1985). being first and the latter given rea —the intentional at trial is Where evidence inferences, being recklessness. subject to two reasonable instructed inferences. should be on both Appellant’s expert confession testimo- Saunders, 392; v. 840 S.W.2d at Thomas ny at trial raised the of recklessness. issue (Tex.Crim.App. confessed: 1985). The confession of the defendant enough Robert said this is far and I told subject to an inference that he weeds,’ him no ‘Lets take him into recklessly during killed the course or Martin I him was still then shoved while committing robbery of Martin. Ac my right up hand the mans shoul- near cordingly appellant, to the re was entitled pointing towards I der his head. When charge on the offense quested lesser included the man the off and shoved went involuntary manslaughter. struck the man in the head. (Tex. See, In Almanza v. stated the rule State we Gibbs cert, — denied, U.S.-, the error in was the Crim.App.), “[i]f 112 that timely subject objection of a in the trial Appel L.Ed.2d S.Ct. 117 444 court, reversal is if the error is necessity first then lant was also aware of the to injure rights of the defen ‘calculated to derringer cock the hammer before the could dant,’ means no that there Surely which more than be fired. it is reckless to at least loaded, some harm to accused from the knowingly hold a at must be cocked also, State, (Tex.Crim.App. error.” 686 S.W.2d 171 Montoya someone’s head. See v. 1984). appellant In the Lugo instant case (Tex.Crim.App.1987); 744 15 v. S.W.2d State, the jury 144 harmed because was not instructed (Tex.Crim.App.1984). confession, not allowed the lesser upon and to consider In addition to the State and involuntary manslaughter. offense of presented testimony Appellant conflicting derringers to the different brands of set trial court’s therefore aside the safety respective Appellant’s their devices. of sentence judgment of conviction and that expert testified would not take “[it] death, remand to the trial the cause pressure trigger much on the to release the proceedings not inconsistent court why cartridge. hammer to fire the That’s opinion. this you carry weapon not normally would a very just point, It takes cocked. little at that J., WHITE, concurs in the result. weapon. a slight squeeze, depending on the pressure There is a wide in to variance McCORMICK, P.J., dissents. the hammer.” The state release confession CAMPBELL, J., gun for reasons stat- I shoved and the dissents “[w]hen ment the man dissenting appel opinion Saunders off ...” and the of ed in the went (Tex.Crim.App.1992) together when taken raise an expert lant’s believe, cumstances, duty implement that law opinion it is his 2. The author of continues expressed dissenting opin- subsequent conscientiously reasons cases fairly for the ion of decided. in all White, wrongly Judge that Saunders applies. Vargas v. which it See However, the in that J., rule announced 1992) (Benavides, (Tex.Crim.App. clearly the and it is now law of this case is concurring). that, except special cir- belief under the author’s 1992) (White, J., Appellant claimed (rehearing lessly denied Nov. killed the victim. robbery dissenting). he during the commission and “the went shoved the victim forward the head.”2 This the man in off and struck OPINION ON STATE’S MOTIONS that such evidence was suf- Court concluded FOR REHEARING involuntary man- to raise the issue of ficient capi- lesser included offense of slaughter as a WHITE, Judge. trial court erred in tal and that the August Appellant was convicted on disallowing appellant’s request' for such an capital intentionally murder for kill- Ross, instruction. at 875. ing Ronald Martin while in the course of Ted committing robbery. Tex.Penal Code a See in the evidence as to No conflict existed 19.03(a)(2). § Ann. was sentenced robbery. appellant perpetrated whether a to death. confession, By appellant stated that his own head while a he held a near the victim’s point In of error number three our through pock- went the victim’s co-defendant submission, original opinion on Ross v. Testimony possibility at trial raised the ets. 69,206 9, 1992), (Tex.Cr.App. No. December during robbery, commission of the failing we held the trial court erred intentionally did not and know- appellant jury on the lesser included of- the victim. ingly cause the death of See involuntary manslaughter, fense of conclud- 19.02(a)(1). If Ann. Tex.Penal Code ap- entitled ing presented that the evidence weapon manner in which the was used involuntary man- pellant jury charge to a on clearly dangerous to to an act hu- slaughter. finding appellant suffered amounted After harm, life, resulting some we reversed and man homicide constitutes remanded point one by instant cause. In of error number felony-murder as defined the offense of found the evidence adduced at trial was we Only §Ann. Tex.Penal Code appellant sufficient to find the homicide had been effected as a result of the victim. death conduct would the reckless four, the evidence error number we held that jury charge appellant be entitled to from trial was sufficient for a to find involuntary lesser included offense of man- Ross, the murder was “deliberate.”1 Ann. slaughter. See Tex.Penal Code 875. 19.05(a)(1). 6.03(c), §§ Rehearing, In the State’s Motions for two-part This Court has enunciated a they only lesser included of argue that the charge a on a test to determine whether felony- by the was fense raised evidence required. Royster offense is lesser included this Court erred when it and that (Tex.Cr.App. 622 S.W.2d jury the should have been concluded 1981). requires prong of the test The first given the included an instruction on lesser charged a requested to be is that the offense involuntary manslaughter. offense of We of the offense lesser included offense agree contention. will reconsid with this 446. The charged. Royster, 622 opinion original er Part III of our on submis there is some evi inquiry second is whether concerning point sion of error number three. if is in the record that the defendant dence The State contends that no evidence only of the lesser offense. guilty, guilty he is that, guilty, appellant presented to show Royster, supra. guilty only involuntary manslaughter. of a lesser included It clear that murder is is Admittedly, conflicting as there was evidence capital parte murder. Ex McClel reck- offense of appellant to whether or submission, only complete description of the facts in the in opinion original A In on we 1. our original opinion on stant case is cited submission, points appellant’s addressed three of eleven of 69,206 (Tex.Cr. Ross v. No. error. 1992). App. December land, er, (Tex.Cr.App.1979). 588 S.W.2d there was not sufficient evidence to raise involuntary the of manslaughter. issue It is also well that if are settled facts elicited during trial that raise an issue of a lesser In Almanza v. charge properly included offense (Tex.Cr.App.1984), we stated the

requested, charge then a on issue the must rule the error the was the “[i]f given. be Jackson v. subject timely objection aof in the trial 695 (Tex.Cr.App.1977). court, then reversal is if the error is injure rights ‘calculated the the committing robbery, admits defen dant,’ which means no more that there than during which he held a to the victim. In must be harm the some accused from the robbery, the course was fired words, error; other an error which has by appellant, killing the victim. Trial preserved by been properly objection will call possibility raised the the ap- long for as reversal as error is not harm pellant may not have intentionally and know- less.” In instant case because evi Therefore, ingly victim’s death. clearly issue, dence raised the appellant was possible it is the appellant’s actions consti- harmed because the was not instructed clearly dangerous life, tute and act to human upon and not allowed consider lesser death, which resulted in the victim’s indicat- felony-murder. offense of ing appellant may only guilty have been reasons, Based on aforementioned felony-murder, distinguished from involun- appellant was entitled to a jury receive tary manslaughter. See Tex.Penal Code charge on the lesser included offense of mur- 19.02(a)(3), §§ Ann. der, felony-murder, or involuntary but not Jackson-, manslaughter. Royster, supra. original On submission we found the point evidence at trial We reverse the conviction on raised issue of reckless based of error appellant’s number two of brief ness, on we reversed conviction based original asserting appellant’s submission Ross, appellant’s point third of error. right jury charge to a on the lesser offense of at 875. We believe that was incorrect. murder,4 and remand cause to the trial agreement We are in appellant’s court. brief

on original submission that the evidence clearly raises the issue that CLINTON, J., believing correctly that we may guilty only be of the lesser offense of three, joins decided of error clearly murder an committing danger- act judgment of the Court. ous to causing human life and the death of deceased. the Motions Rehearing, the State Prosecuting Attorney State appellant.3 They

concur with concede that that, presented

there was some evidence if

guilty, appellant guilty only of the of- felony-murder.

fense of find that now failing charge

the trial court erred in

jury on the lesser offense of over murder objection

request appellant. Howev- submission, original reply County Attorney 3. On its Both the Harris District brief, appellant's did not address second Prosecuting Attorney readily admit the State contending error allowing the trial court erred in not that, presented trial there was some evidence on murder. The State first guilty, guilty only Rehearing, addressed at which issue in its Motion for felony offense of murder. they appel- time conceded the fact charge. lant was entitled such a

Case Details

Case Name: Ross v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jan 20, 1993

Citation: 861 S.W.2d 870

Docket Number: 69206

Court Abbreviation: Tex. Crim. App.