Opinion
No. 05-07-00922-CR
Opinion issued June 4, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 195th District Court, Dallas County, Texas, Trial Court Cause No. F06-68773-MN.
Before Justices BRIDGES, FITZGERALD, and LANG.
OPINION
Kelvin Lee Gassaway appeals his murder conviction. A jury convicted appellant and sentenced him to fifty years' confinement. In four points of error, appellant argues the trial court erred in refusing to allow appellant's psychiatrist to testify, the evidence is factually insufficient to show he did not act in self defense or under the influence of sudden passion, and the parole instruction denied appellant his due process rights. We affirm the trial court's judgment. On July 30, 2006, Brian Banks was watching television in his apartment at approximately 9:00 a.m. when he heard people moving furniture into the vacant apartment next door. The door "kept opening and closing," and Banks heard "some noises in the kitchen" because his kitchen connected with the kitchen next door. However, Banks did not hear any voices. Banks heard a "loud boom" against his front door like someone was trying to make their way through the door. Banks looked out the peep hole, saw a shadow moving in the direction of the apartment next door, and heard "something sliding down" his front door. Banks put on his clothes, told his wife to "get up and go in the back," opened his door, and a woman fell inside his doorway. After the woman fell down, Banks saw a man come from the same direction as the woman and "just walk on past." Banks told his wife to call 911 and saw "the son" come from the direction of the parking lot, look down, and say, "`Mama,' like he was concerned with her." Banks' wife described to the 911 operator that the woman in the doorway had "like air bubbles popping from her," and the 911 operator said to call back if that stopped. When Banks' wife called 911 again, the operator asked Banks to perform CPR, but he could not because the woman "had too much blood on her." Duncanville police officer Eddie Edwards was dispatched to the scene, but he turned around when he saw a vehicle matching a description he had been given turn in to the police station parking lot. After Edwards parked, he saw a man walking in to the police station and walking back out. Officers Sims and Dobelbower were also outside the station at this time, and Sims asked the man if he could help him. The man said, "I'm here to turn myself in" and "I just stabbed my wife." Edwards handcuffed the man and took him inside, and Sims read the man his Miranda rights. The man was sweating profusely and said he "took a number of medications." The officers called for medical assistance, and the man was transported to the hospital. Edwards followed the ambulance to the hospital and later identified the man as appellant. At trial, Brandon Gassaway, appellant's son, testified he and his father were moving furniture on July 30, 2006 into an apartment his mother, Cheryl, had leased separately. Earlier that day, appellant told Brandon he had a "conviction" and said it was "something that God had forgiven him for." When Brandon and appellant arrived at the apartment, it was open. Cheryl and appellant talked, but there was nothing loud or boisterous about their conversation, and they did not seem agitated or upset. Brandon set down some cushions he was carrying, saw Cheryl and smiled at her, and left to get another load. As Brandon was coming back to the apartment, he met appellant, who said "I killed your mom." Brandon did not say anything but threw down what he was carrying and went to the apartment to see what appellant was talking about. Brandon saw Cheryl lying against Banks' door and called to her, but "she was gone." Appellant was behind Brandon, and appellant said he was going to kill himself and showed Brandon a bottle of pills. Brandon testified appellant and Cheryl had been married and divorced twice, and their relationship was volatile. Dallas police officer Mike Epple testified he recovered knives and a knife handle from Cheryl's apartment One knife was in a knife case on the kitchen counter, a knife blade was on the floor of the utility room, and a knife handle was on the kitchen floor. Dallas County medical examiner Jill Urban testified she performed an autopsy on Cheryl's body. Urban found nine stab wounds and twelve incised wounds, including wounds she described as "defensive wounds." Defensive wounds are inflicted when a person is being stabbed and puts up her hands to try to protect herself or grab at the knife. Appellant testified he and Cheryl were seeing a family counselor and having financial problems in the months before the stabbing. During that time, appellant's medication for his bipolar disorder was not working. Appellant had been declared disabled as a result of his bipolar disorder in January 2000. Appellant and Cheryl "just grew apart," and Cheryl started drinking and stopped going to church. Appellant was "hurt" by this behavior. In June 2006, appellant placed a voice-activated tape recorder in Cheryl's car because he "had some suspicion that she was seeing someone else." Appellant recorded a conversation between Cheryl and another man and confronted Cheryl about it. Cheryl denied the conversation, and appellant threw the tape recorder at her, hitting her on the hip. Appellant told Cheryl she was lying and then "pushed her head over" and "broke two picture frames." Appellant "had gone into a rage," and that was "one of the symptoms of [his] bipolar." Appellant testified he and Cheryl had married and divorced twice. For about three weeks before the stabbing, appellant and Brandon had been going to Miracle Mountain, a church in Dallas. At about 2:00 a.m. on the day of the stabbing, appellant woke Brandon and asked him to call Cheryl to invite her to come to Miracle Mountain and pray with them. That night appellant had had a "conviction" he described as "a sign from God that [he] needed to change [his] life." Cheryl declined the invitation, and Brandon went back to bed. The morning of the stabbing, appellant and Brandon went to Cheryl's apartment to deliver some "furnishings." Appellant testified he brought knives to Cheryl's apartment because Cheryl had gastric bypass surgery and she used the knives to cut up her food. Appellant had called Cheryl and "told her that we were going to start bringing the stuff over." Cheryl's apartment was unlocked, and appellant and Brandon walked in. Appellant went to the kitchen and started unpacking boxes so he could take them back for another load. Cheryl walked in the kitchen and started hitting appellant in his "peck area." Appellant testified the hitting was "uncomfortable" and Cheryl said "this is all your fault." Cheryl "grabbed one of the knives off of the counter, and she went up with it." Cheryl had not done "anything like that before," and appellant did not "have a clue" why Cheryl did it. Appellant grabbed Cheryl's hand, they "were scuffling for the knife and it went down, and it pierced her somewhere over here in the right side of her body." Appellant "gained control of the knife, and then that's when I began to stab her." Appellant stabbed Cheryl because he "went into survival mode" but he did not "go into a rage." Appellant did not remember how many times he stabbed Cheryl. "After a while," Cheryl tried to get away when "the knife that [appellant] was stabbing her with had broke." Cheryl "went outside the door and she fell." Appellant turned around and went back to the kitchen to get a knife. Appellant was "going to try to take [his] life, but [he] just couldn't do it." Appellant went outside, told Brandon he had killed Brandon's mother, and went to turn himself in at the Duncanville police department. A jury subsequently convicted appellant of murder, and this appeal followed. In his first point of error, appellant argues the trial court erred in refusing to allow appellant's psychiatrist to testify during the guilt/innocence phase of trial. Specifically, appellant argues the exclusion of this testimony "blocked" his defense of "`diminished capacity,' the failure of proof defense that [he] did not have the required state of mind at the time of the offense due to his mental illness." Texas does not recognize diminished capacity as an affirmative defense i.e., a lesser form of the defense of insanity. Jackson v. State, 160 S.W.3d 568, 573 (Tex.Crim.App. 2005). In contrast, the diminished capacity doctrine is a failure-of-proof defense in which the defendant claims the State failed to prove that the defendant had the required state of mind at the time of the offense. Id. As with other elements of an offense, relevant evidence may be presented which the jury may consider to negate the mens rea element, and this evidence may sometimes include evidence of a defendant's history of mental illness. Id. at 574. Under article 38.36(a) of the code of criminal procedure, in all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense. Tex. Code Crim. Proc. Ann. art. 38.36(a) (Vernon 2005). However, this evidence must still meet the admissibility requirements of rule of evidence 403. Jackson, 160 S.W.3d at 574. Evidence admissible under article 38.36(a) may be excluded under rule 403 if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. Tex. R. Evid. 403. Even if evidence is relevant to an element of the offense, the trial court must determine whether the evidence is admissible. Jackson, 160 S.W.3d at 574. Therefore, the trial judge has discretion to determine whether evidence of mental illness may be presented to negate the element of mens rea, or whether the evidence should be excluded on special grounds. Id. In cases where such evidence was not admitted, it may be presented in the punishment phase in order to reduce the sentence assessed by the jury. Id. Here, the trial court conducted a hearing outside the presence of the jury at which Kathleen Sheehan, appellant's psychiatrist, testified she first came into contact with appellant in February 2006. The trial judge asked the purpose of Sheehan's testimony, and appellant's counsel stated the testimony's purpose was "to talk about the psychiatric evaluations, the psychiatric diagnosis of" appellant. The trial court noted the record already reflected that appellant suffered from bipolar disorder. Appellant's counsel countered that a doctor had not testified and there had been no definition submitted of "what that is." Appellant's counsel argued appellant was entitled to "put on expert testimony in relationship to the charges here so that everybody can understand the condition of the mind of the defendant at the time this offense took place." The trial judge expressed reservations concerning how the proffered evidence would "jibe" with rule 403 but allowed appellant's counsel to proceed before ruling on the admissibility of the evidence. Sheehan testified she diagnosed appellant with "Bipolar 1 disorder, depressed," and this meant appellant had a "major mood disorder" "characterized by highs and lows or irritability and lows and that currently his phase was depressed." The trial judge asked Sheehan if a person who suffered from bipolar disorder was able to form criminal intent. Sheehan answered, "Everybody that I can think of that I've examined can. Yes." Appellant's counsel clarified that Sheehan was not at trial to testify that appellant was insane or that he "may not have acted intentionally or knowingly." Instead, appellant's counsel confirmed Sheehan was there to testify "about what bipolar is" and "talk about what medications the defendant was on." In response to questions from counsel, Sheehan agreed that stabbing the complaining witness nine times was a "violent act" but testified she had "never had an individual diagnosed with a bipolar disorder who committed murder." Sheehan testified appellant was on a "mood stabilizer," anti-anxiety medication, and sleep medication. The last time Sheehan saw appellant, on July 26, 2006, she "put him on another mood stabilizer that is also used to treat schizophrenic or psychotic disorders." The trial judge asked appellant's counsel if the defense was "planning on eliciting an opinion from" Sheehan. Appellant's counsel then presented Sheehan with the hypothetical scenario of someone who had been diagnosed with the same disorder as appellant who was confined with his wife in a small kitchen area, argued verbally with his wife, struggled with his wife after she threatened him with a knife, got the knife away from her, and proceeded to "stab her in a very short period of time." Counsel asked Sheehan whether the "multiple stabbing" was a behavior "that might be expected of somebody with his diagnosis." Sheehan answered "No," and stated she did not ever expect appellant to be homicidal. The trial judge then asked appellant's counsel how Sheehan's testimony was relevant. In response to further questioning, Sheehan responded she did not know how appellant would respond to a situation where he was threatened with deadly force or whether appellant would still "perceive he was threatened" if he was "able to get the knife away." Sheehan testified she could not "say for sure one way or the other" whether it could be a "result of bipolar that [appellant] stabbed somebody multiple times." The trial judge then ruled that he would not allow Sheehan's testimony because it did not meet the requirements of rule 403 specifically "because of unnecessary delay, possible accumulation of evidence and misleading the jury on the factual issues." Prior to the hearing on the substance of Sheehan's testimony, appellant testified he was declared disabled in 2000 because of his "bipolar diagnosis." Appellant testified he was "on medication" for his bipolar disorder "since 2000." In 2002, appellant received shock therapy, which was "helpful." Appellant testified one of the "symptoms of [his] bipolar" was that he would "go into a rage." On the day of the stabbing, appellant testified, appellant was in the kitchen with Cheryl when Cheryl "grabbed one of the knives off the counter, and she went up with it." Appellant and Cheryl scuffled for the knife, and "it went down, and it pierced" Cheryl "in the right side of her body." Appellant "gained control of the knife, and that's when [he] began to stab [Cheryl]." Appellant testified he "went into survival mode," but he "didn't go into a rage." When the knife appellant was using to stab Cheryl broke, Cheryl tried to get away. Appellant testified he had been seeing Sheehan for about six months prior to the stabbing. Appellant had been going through a period where his medication was not working, and he saw Sheehan the Wednesday before the stabbing, and Sheehan changed appellant's medication at that time. Appellant did not get the new prescriptions filled because he did not have the money. Sheehan would have testified appellant suffered from bipolar disorder and was on medication. However, Sheehan testified a "multiple stabbing" was not a behavior "that might be expected of somebody with his diagnosis." Sheehan testified she could not "say for sure one way or the other" whether it could be a "result of bipolar that [appellant] stabbed somebody multiple times." Thus, Sheehan's testimony would have been repetitive of appellant's testimony that he suffered from bipolar disorder and had prescription medication to treat the symptoms of his disorder. As to whether appellant's bipolar disorder had anything to with the "multiple stabbing," Sheehan did not know how appellant would respond to a situation where he was threatened with deadly force and could express no opinion whether the multiple stabbing was the result of appellant's bipolar disorder. Under these circumstances, we conclude appellant failed to elicit any evidence from Sheehan which negated the mens rea element of the offense. The trial court therefore did not abuse its discretion in excluding Sheehan's testimony. Jackson, 160 S.W.3d at 574. Further, the trial judge did not abuse his discretion in ruling Sheehan's testimony did not meet the requirements of rule 403 specifically "because of unnecessary delay, possible accumulation of evidence and misleading the jury on the factual issues." See Jackson, 160 S.W.3d at 574. We overrule appellant's first point of error. In his second point of error, appellant argues the evidence was factually insufficient to show he did not commit the underlying offense in self defense. In his fourth point of error, appellant argues the evidence during the punishment phase of trial was factually insufficient to show appellant failed to prove he was acting under the influence of sudden passion. In a factual sufficiency review, we view the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). To reverse a case based on factual insufficiency, we look at the evidence objectively and find that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417. As a reviewing court, we may substitute our judgment for the jury's determinations on the weight and credibility of the evidence only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006) (stating factual sufficiency review requires "due deference" to be afforded to jury's determinations). Absent a contradictory showing from the record, we should defer to the jury's determinations regarding the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). As the exclusive judge of the weight and credibility of the witnesses' testimony, the jury is free to believe or disbelieve evidence from either side. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). Under the applicable provisions of the Texas Penal Code in effect at the time of the offense, a person is justified in using deadly force when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against another's use or attempted use of unlawful deadly force and a reasonable person in the actor's situation would not have retreated. See Tex. Penal Code Ann. §§ 9.31(a), 9.32(a) (Vernon 2003). The defendant has the burden of producing some evidence to support a claim of self defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003). The issue of self defense is an issue of fact to be determined by the jury. Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App. 1991). Sudden passion is defined as "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. Penal Code Ann. § 19.02(a)(2) (Vernon 2003). Sudden passion must arise from an adequate cause which is defined as "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." Tex. Penal Code Ann. § 19.02(a)(1) (Vernon 2003). To establish sudden passion, the record must contain (1) objective evidence of the victim's direct provocation (or the actions of someone acting with the victim) which incited the killer at the time and (2) evidence from which the jury can subjectively decide the defendant killed the victim while in an excited and agitated state of mind arising out of the direct provocation. Naasz v. State, 974 S.W.2d 418, 421 (Tex.App.-Dallas 1998, pet. ref'd). The State is not required to negate the existence of sudden passion, and a defendant may not rely on a cause of his own making, such as provoking a confrontation. Trevino v. State, 157 S.W.3d 818, 821-22 (Tex.App.-Fort Worth 2005, no pet.). Here, at the guilt/innocence phase of trial, the court's charge set forth the law of self defense and instructed the jury to acquit appellant if the jury found appellant acted in self defense when he stabbed Cheryl. The jury nevertheless convicted appellant of murder, as charged in the indictment. At the punishment phase, the court's charge defined sudden passion and submitted a special issue asking whether the jury found appellant was under the immediate influence of sudden passion arising from an adequate cause when he caused Cheryl's death. The jury answered that appellant did not act under the immediate influence of sudden passion. The evidence surrounding the stabbing consisted of appellant's testimony that he was in the kitchen with Cheryl when Cheryl started hitting appellant in his "peck area." Appellant testified the hitting was "uncomfortable" and Cheryl said "this is all your fault." Cheryl "grabbed one of the knives off the counter, and she went up with it." Appellant and Cheryl scuffled for the knife, and "it went down, and it pierced" Cheryl "in the right side of her body." Appellant "gained control of the knife, and that's when [he] began to stab [Cheryl]." Appellant testified he "went into survival mode," but he "didn't go into a rage." Appellant stabbed Cheryl until the knife he was using broke. Appellant inflicted a total of nine stab wounds and twelve incised wounds on Cheryl, and she died from her wounds. Thus, the record shows appellant stabbed Cheryl once before he was able to get the knife away from her. However, he continued to stab her once she was disarmed, even though appellant was not in "a rage." Having reviewed the evidence before the jury, we conclude the jury's finding appellant did not act in self defense was not manifestly unjust or against the great weight and preponderance of the evidence. Watson, 204 SW.3d at 415. Further, the evidence presented was factually sufficient to support the jury's rejection of appellant's claim that he killed Cheryl under the immediate influence of sudden passion arising from an adequate cause. See id.; Naasz, 974 S.W.2d at 421. We overrule appellant's second and fourth points of error. In his third point of error, appellant argues the parole instruction submitted to the jury denied him his due process rights. Specifically, appellant complains it is evident the jury considered parole in their deliberations and were confused about good conduct time. The code of criminal procedure sets forth the parole instruction to be given in certain cases, including murder cases. Tex. Code Crim. Proc. Ann. art. 37.07 § 4 (Vernon Supp. 2008). The jury charge in this case correctly set forth the parole instruction, including the instruction's references to good conduct time, as set forth in article 37.07. Neither appellant nor the State raised any objection to the court's parole instruction, and appellant points to no evidence that the jury was actually confused by the parole instruction. See Luquis v. State, 72 S.W.3d 355, 366-67 (Tex.Crim.App. 2002) (assuming jury followed parole instruction as given and declining to find federal constitutional error absent conclusion reasonable jury actually confused by charge). Accordingly, appellant has failed to demonstrate the parole instruction in this case was unconstitutional as applied to him. See id. We overrule appellant's third point of error. We affirm the trial court's judgment.