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holding that there was inadequate cause to support a jury instruction on sudden passion where the victim called the defendant's wife a "bitch" and a "shyster ass ho"
Summary of this case from Ross v. StateOpinion
No. 05-05-00434-CR
Opinion Filed August 22, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-49156-WN. Affirmed.
Before Justices FITZGERALD, FRANCIS and LANG-MIERS.
OPINION
A jury convicted Cedric Fitzgerald Mallard of murder and, after finding the enhancement paragraph true, assessed punishment at twenty-eight years in prison. In six issues, Mallard complains about the legal and factual sufficiency of the evidence to support his conviction and charge error. We affirm. Trecie Roberson and Deantry Sessions hosted a party at their apartment at the Rose Terrace Projects. Mallard and his wife, Lora Nobles, attended the party as did the victim, Robert Turner. Alcohol was flowing freely and, by most accounts, virtually everyone was intoxicated. After Turner made some comments directed at the women in attendance and used the terms "bitch" and "shyster ass ho," the women began "cussing at him and calling him all kinds of names." When Turner stepped on Lora's foot, she slapped him on the back of the head. Turner called Lora a "shit starter." Mallard was not at the party during Lora's confrontation with Turner. When he returned, Lora was heard talking to him about Turner's comments. Mallard then confronted Turner and told Turner he was not going to "disrespect" his wife. Guests had to separate the two men to keep them from fighting and fearing eviction, Sessions told Lora and Mallard to leave. Trecie told the jury the party calmed down for awhile and some guests had gone home when a fight broke out between Sessions and Cory Nobles, Lora's cousin. Turner came to the doorway of the apartment to "try and help his friends." As Trecie tried to keep him from coming inside, Lora took two kitchen knives and began to hit Turner on the shoulders. Trecie said Turner's "blood skidded on my door." Trecie "got upset and started hollering, telling folks to leave." She said she and a friend pushed Turner out the door and "all of them, like, went outside fighting." Mallard and Turner were fighting at the side of the building. The fight lasted about ten minutes, and Trecie believed Turner, the bigger man, was winning. Then, Trecie saw Lora join in the fight and saw her over Turner, "on top, like and he was kind of under." Lora was swinging at Turner's back and left side. Because she was not wearing her glasses, Trecie did not know if Lora had a knife or was using her fists, but she described Lora's movements as going "real fast . . . maybe eight to 10 times . . . jabbing real fast." Sessions observed the fist fight as it began in the doorway of the apartment, saw the two men move to the side of the building, and then saw Lora throw Mallard a knife. The two men continued to fight until Sessions saw Turner fall on top of Mallard, and the struggle continued on the ground. Sessions testified that Lora ran up and started stabbing Turner in the back, and he kicked Lora off of Turner. Turner got up and tried to run but could not get far because "blood started gushing out of him." He collapsed at another apartment, leaving a trail of blood behind him. Trecie went to Turner and stayed with him until the ambulance arrived. When paramedics rolled Turner over, Trecie saw the gaping wound to his chest and "knew he had been stabbed." She told the jury Turner could not have been stabbed while fighting in the doorway of her apartment. She said the wound to the chest had to have happened when Turner was fighting Mallard and Lora. Lamar Gibbs was sitting on a car outside listening to music when he saw the fight break out between Mallard and Turner. When everyone ran out to try and break it up, Gibbs saw Lora come out of the apartment with two knives in her hand. She threw one knife to Mallard, and both men then fell to the ground. Lora got behind Turner and "swung at him," and Gibbs thought she was swinging the second knife. He heard Sessions tell Lora, "you've stabbed him enough," and saw Sessions kick Lora off Turner. Lora chased Sessions to his vehicle and threw the knife at Sessions, Gibbs, and others who were fleeing the scene. Before leaving, Gibbs saw Turner get up off the ground, walk away, and fall close to neighbor Kawana King's front door. Kawana King, who also witnessed the fight, believed both Lora and Mallard had knives. Kawana told the jury that when Turner got up, she heard "a splay of blood" and could hear blood gushing. She and Trecie stayed with Turner until the police arrived. Kawana testified Lora could not have delivered the fatal blow because "[s]he couldn't have got to the front of him . . . She was over him, like the back way over him. So she was just like hitting him in his back area." Dallas police officer Edward Calhoun was dispatched to the Rose Terrace projects but was flagged down before he arrived at the location. Several people directed him to a knife laying in the grass. A car pulled up, and several witnesses told him the female driver was "the lady that had been here earlier." Mallard was in the passenger seat and had "tears coming out of his eyes, like he was upset." The woman said Mallard had been in a fight earlier, and Calhoun observed a cut on the top of Mallard's right hand. Mallard was clearly intoxicated. Dr. Janice Townsend-Parchman, a forensic pathologist with the Dallas County medical examiner's office, testified regarding Turner's injuries and cause of death. Although Turner was cut repeatedly, the cause of death was a six-and-a-half-inch stab wound on the left side of Turner's chest that penetrated the heart. The direction of the stab wound was from front to back, left to right, and slightly upward. Dr. Townsend-Parchman told the jury this type of wound would have bled freely once the knife was removed and would have come out in "spasmodic gushes" as the heart continued to beat. Kenneth Balagot, a forensic biologist with the Southwestern Institute of Forensic Sciences, obtained blood samples from Mallard, Turner, Lora, and Cory Nobles. DNA testing revealed the blood of Turner, Lora, and Cory Nobles on the knife. The blood of Mallard, Turner, and Lora was found on Mallard's pants and the blood of Mallard and Turner on Mallard's t-shirt. In issues one and two, Mallard argues the evidence is legally and factually insufficient to support his conviction. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). In reviewing a challenge to the factual sufficiency of the evidence, we view the evidence in a neutral light to determine whether the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). The evidence is factually insufficient when the evidence supporting the verdict, considered by itself, is too weak to support a finding of guilt beyond a reasonable doubt or when the contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996); Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). The fact finder may draw reasonable inferences and make reasonable deductions from the evidence. Smith v. State, 895 S.W.2d 449, 452 (Tex.App.-Dallas 1995, pet. ref'd). Mallard presents legal authority and conducts an analysis of the legal sufficiency of the evidence but makes no such analysis in his factual sufficiency issue. He instead asks this Court to conduct our own review of the evidence and search for factual deficiencies. While we question the adequacy of the briefing of this issue, we will address both legal and factual sufficiency of the evidence. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Tex. Pen. Code Ann. § 7.01(a) (Vernon 2003). A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). The evidence must show that, at the time of the offense, the parties were acting together, each performing some role in the execution of the common purpose. Burdine v. State, 719 S.W.2d 309, 315 (Tex.Crim.App. 1986). In determining whether a defendant participated as a party, a reviewing court may look to events occurring before, during, and after the commission of the offense, and may rely on actions of the defendant which show an understanding and common design to do the prohibited act. Cordova v. State, 698 S.W.2d 107, 111 (Tex.Crim.App. 1985). The law of parties may be applied even if not alleged in the indictment. See Goff v. State, 931 S.W.2d 537, 544 (Tex.Crim.App. 1996). A person commits the offense of murder if he intentionally or knowingly causes the death of an individual or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Pen. Code Ann. § 19.02(b)(1) (2) (Vernon 2003). The charge in this case included both manner and means of committing murder and allowed the jury to convict Mallard on a finding that he acted alone or as a party to the commission of the offense. The jury returned a general verdict of guilty to the offense of murder. Mallard contends the evidence is insufficient to sustain the verdict because the testimony at trial shows the person who inflicted the fatal wound to Turner was Lora Nobles. Mallard further argues that if he inflicted the fatal chest wound, more blood would have been found on the shirt he was wearing when he was arrested shortly after the fight. Clearly, both Mallard and his wife Lora were active participants in the fight that caused Turner's death. The two men were already fighting when Lora came out of the apartment carrying two knives; she tossed one knife to Mallard and kept one herself. Witnesses consistently recounted that Mallard and Turner were on the ground facing each other and Lora was behind Turner stabbing him in the back with her knife. At no point was Lora in a position to have stabbed Turner in the chest, front to back. Although no witness actually saw Mallard stab Turner, Mallard had a knife and was the only one in position to stab Turner in the chest. Lora stabbed Turner from the back and side. Further, the testimony established the blood began to gush from Turner's body after he got off of Mallard and tried to run. Even if Lora somehow inflicted the fatal wound to Turner's chest, Mallard is responsible as a party to the offense. The evidence reflects that Mallard, acting with intent to promote or assist the commission of the offense, solicited, encouraged, directed, aided, or attempted to aid Lora in causing Turner's death or in committing an act clearly dangerous to human life that caused Turner's death. Having reviewed the evidence under the appropriate standards, we conclude it was legally and factually sufficient to support the jury's verdict. We overrule Mallard's first two issues. In his fifth issue, Mallard asserts the trial court erred in including the law of parties in the charge because "there was no evidence that a third person was committing any offense." We have previously set out the law with respect to parties to an offense. Applying that law to the facts of this case, we conclude the trial court did not err in charging the jurors on the law of parties. The evidence showed that both Mallard and Lora participated in the fight that resulted in Turner's death, and Lora provided Mallard with a knife. Although the evidence strongly suggests that Mallard was the person who inflicted the fatal wound, there was no direct evidence to that effect. In the absence of direct testimony as to who inflicted the fatal wound and in light of the evidence establishing the involvement of Lora in the commission of the offense, the trial court appropriately instructed the jury on the law of parties. We overrule the fifth issue. In issues three and four, Mallard contends the trial court erred in denying his request to charge the jury on the lesser-included offenses of aggravated assault and simple assault. At trial, Mallard merely asked the trial court for an instruction on the "included offense of aggravated assault, simple assault, as defined in the Texas Penal Code" without further explanation as to why he believed those offenses were raised by the facts. On appeal, Mallard more specifically contends he was entitled to a charge on aggravated assault for two reasons: (1) the issue was raised by the evidence of "mutual fighting between the deceased and Defendant at a party where there was alcohol consumed by all participants" and (2) a knife is not a deadly weapon per se, and "there is no presumption of intent to kill." He argues he was entitled to a charge on the lesser-included offense of simple assault because the jury may "not believe that there had been a murder or an aggravated assault, but merely an assault" of Turner. The trial court should instruct the jury on a lesser-included offense if the lesser offense is included within the proof necessary to establish the offense charged, and there is some evidence in the record that would permit the jury to find him guilty, if he is guilty, only of the lesser offense. Campbell v. State, 149 S.W.3d 149, 152 (Tex.Crim.App. 2004); Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App. 1981). Regarding the second element, it is not sufficient that the jury might have disbelieved evidence pertaining to the greater offense. Hampton v. State, 109 S.W.3d 437, 441 (Tex.Crim.App. 2003). Rather, there must be some evidence in the record "directly germane" to the lesser-included offense. Id. If evidence from any source raises the issue of a lesser-included offense, an instruction on that offense must be included in the court's charge. Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App. 1992). In this case, Mallard was charged with having committed murder in two possible ways, and the jury's general verdict of guilty is valid upon proof beyond a reasonable doubt of the commission of either. Aguirre v. State, 732 S.W.2d 320, 324-27 (Tex.Crim.App. 1987) (op. on reh'g). The first alleged the intentional and knowing commission of the offense of murder. The second required that the State prove Mallard intended to cause serious bodily injury and committed an act that was clearly dangerous to human life that caused the death of the victim by stabbing him with a knife. In certain circumstances, aggravated assault can be a lesser-included offense of murder. Forest v. State, 989 S.W.2d 365, 368 (Tex.Crim.App. 1999); Sledge v. State, 860 S.W.2d 710, 713-14 (Tex.App.-Dallas 1993, pet. ref'd). A person commits assault if the person intentionally, knowingly, or recklessly causes bodily injury to another. See Tex. Pen. Code Ann. § 22.01 (Vernon Supp. 2005). A person commits aggravated assault if the person commits assault and causes serious bodily injury to another or uses or exhibits a deadly weapon during the commission of the assault. See Tex. Pen. Code Ann. § 22.02 (Vernon Supp. 2006). The jury was instructed that Mallard could be found guilty of murder upon proof that he intentionally or knowingly caused the death of Turner by stabbing him with a knife. That the State in proving the alleged offense of murder, also proves the lesser-included offense of aggravated assault, does not require a jury charge on the lesser-included offense, absent evidence that defendant, if guilty, is guilty only of the lesser offense. See Curtis v. State, 573 S.W.2d 219, 223 (Tex.Crim.App. 1978). There was no evidence that the victim suffered a lesser injury than death; no evidence demonstrates a less culpable mental state. Dowden v. State, 758 S.W.2d 264, 269 (Tex.Crim.App. 1988). A murder defendant is not entitled to an instruction on the lesser-included offense of aggravated assault when the evidence showed him, at the least, to be guilty of a homicide. Forest, 989 S.W.2d at 367. The trial court did not err in refusing to charge the jury on aggravated assault or simple assault. In his sixth issue, Mallard contends the trial court erred by denying his requested punishment charge on the law of sudden passion, which, if believed by the jury, would have reduced the punishment range from a first- to a second-degree felony. He argues this charge should have been given in light of the testimony by Lamar Gibbs and Trecie Roberson that Mallard was angered by Turner's comments to his wife and testimony showing the two men had a verbal disagreement earlier in the evening. Specifically, Mallard argues "the eye witness testimony shows that once the Defendant returned to the party and learned of the altercation between his wife and the deceased, the fist fight occurred in rapid succession which would qualify the incident as an event of `sudden passion.'" A defendant has the right to a jury instruction on any defensive issue that has been raised by the evidence, regardless of whether the evidence is weak or strong, unimpeachable or contradicted, and regardless of what the trial court may think about its credibility. Granger v. State, 3 S.W.3d 36, 38 (Tex.Crim.App. 1999); Trevino v. State, 100 S.W.3d 232, 238 (Tex.Crim.App. 2003). On the other hand, if the evidence, viewed in the light most favorable to the defendant, fails to raise a defensive issue, the defendant is not entitled to an instruction on the issue. Ferrel v. State, 55 S.W.3d 586, 591 (Tex.Crim.App. 2001). During the punishment phase, a defendant may argue that he caused the death while under the immediate influence of sudden passion arising from an adequate cause. Tex. Pen. Code Ann. § 19.02(d) (Vernon 2003); McKinney v. State, 179 S.W.3d 565, 568 (Tex.Crim.App. 2005). "Sudden passion" is 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. Tex. Pen. Code Ann. § 19.02(a)(2). "Adequate cause" is a 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. Id. at 19.02(a)(1). Sudden passion is a mitigating circumstance that, if found by the jury to have been proven by a preponderance of the evidence, reduces the offense from a first-degree felony to a second-degree felony. Id. at 19.02(c), (d). Before a defendant is allowed a jury instruction on sudden passion, he must prove that there was an adequate provocation, that a passion or an emotion such as fear, terror, anger, rage, or resentment existed, that the homicide occurred while the passion still existed and before there was reasonable opportunity for the passion to cool; and that there was a causal connection between the provocation, the passion, and the homicide. McKinney, 179 S.W.3d at 568. A jury should receive a sudden passion charge if it is raised by the evidence, even if that evidence is weak, impeached, contradicted, or unbelievable. Trevino, 100 S.W.3d at 238. However, the evidence cannot be so weak, contested, or incredible that it could not support such a finding by a rational jury. Id. Mallard's evidence in support of a jury charge on a sudden passion is that when he returned to the party from the liquor store, his wife Lora told him something that angered him and he began fighting with Turner. While Mallard was at the liquor store, Turner made some remarks including "bitch" and "shyster ass ho" directed toward the women at the party including Mallard's wife, Lora. Turner may have stepped on Lora's foot after which she hit him on the back of the head. When Mallard returned to the party, the two men argued and had to be separated by other people. Sometime later that night, the fight resumed. Initially, the fight involved only fists but escalated to a knife fight when Lora tossed Mallard a knife to use against Turner and she also joined in the fight and used a second knife to stab Turner in the back. Turner died of a six-and-a-half inch chest wound. Witnesses to the events consistently reported that all guests at the party were intoxicated. There is no evidence that Mallard acted under a sudden passion. Mallard points to evidence that he was unhappy with the remarks made by Turner to his wife, but he does not show any evidence that he was under the immediate influence of passion. The mere fact that Mallard acted in response to Turners's comments and to Turner's stepping on his wife's foot is not sufficient to warrant a charge on sudden passion. Further, although the evidence does not establish a clear time frame from when the remarks were made to the women and the first argument took place to the time in which the second fight occurred, clearly some amount of time passed between the two events giving Mallard some time to deliberate on his actions and refuting the "immediate influence" requirement of the statute. See McKinney, 179 S.W.3d at 570. An instruction on sudden passion is proper only when the sudden passion was directly caused by and arose out of provocation by the deceased at the time of the offense. Passion that is solely the result of former provocation does not qualify. Tex. Pen. Code Ann. § 19.02 (a)(2). The sudden passion must also have arisen from adequate cause. In this case, there is no evidence that Turner engaged in a provocative act that would have been adequate cause for Mallard's asserted sudden passion. An intoxicated Mallard's stabbing Turner to death because Mallard called his wife a "bitch" and "shyster ass ho" and may have stepped on her foot, "is not objectively common in the ordinary, reasonable person." See Saldivar v. State, 980 S.W.2d 475, 506 (Tex.App.-Houston [1st Dist] 1998, pet. ref'd). We conclude the trial court did not err in refusing to charge the jury on sudden passion at the punishment phase of the trial. We overrule Mallard's sixth issue. We affirm the trial court's judgment.