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concluding that evidence that crime was out of character for defendant was insufficient to warrant temporary insanity by intoxication instruction
Summary of this case from McBurnett v. StateOpinion
No. 06-16-00174-CR
07-10-2017
TIMOTHY EDWARD STRONG, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 265th District Court Dallas County, Texas
Trial Court No. F-14-45651-R Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
The evidence in Timothy Edward Strong's Dallas County jury trial for murder told a story that Strong (a) had drinks with friends at a bar, (b) went with others to an apartment where he took a "very large hit" of marihuana and possibly other drugs from a bong or water pipe, (c) showed signs thereafter of being paranoid and "in his own world," (d) jumped into a stranger's vehicle in Dallas County, (e) drove it away at a high rate of speed, and, (f) in Collin County, crashed into a vehicle driven by Rishi Bhatia, killing him instantly. On appeal from his murder conviction, Strong argues that the evidence is legally insufficient to prove venue in Dallas County or to support the jury's rejection of his mistake-of-fact defense and that the trial court erred by failing, during the punishment phase of trial, to instruct the jury on temporary insanity caused by intoxication.
Originally appealed to the Fifth Court of Appeals in Dallas, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001 (West 2013). We follow the precedent of the Fifth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
Strong was convicted and assessed a sentence of thirty years' imprisonment.
We affirm the judgment of the trial court because (1) sufficient evidence supports venue in Dallas County, (2) sufficient evidence supports rejection of Strong's mistake-of-fact defense, and (3) Strong was not entitled to a temporary-insanity instruction.
(1) Sufficient Evidence Supports Venue in Dallas County
Strong was indicted for the felony murder of Bhatia by an indictment alleging that Strong
Section 19.02(b)(3) of the Texas Penal Code provides:
A person commits an offense if he: . . .TEX. PENAL CODE ANN. § 19.02(b)(3) (West 2011).
(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
intentionally and knowingly commit[ted] the felony offense of UNAUTHORIZED USE OF A VEHICLE and while in the course of and in furtherance of the commission of said offense and while in immediate flight from the commission of said offense, did then and there commit an act clearly dangerous to human life, to-wit: OPERATING A MOTOR VEHICLE, A DEADLY WEAPON, WHILE TRAVELING IN EXCESS OF THE SPEED LIMIT AND AT A GREATER SPEED THAN WAS REASONABLE AND PRUDENT UNDER THE EXISTING CIRCUMSTANCES, AND WHILE FAILING TO KEEP A PROPER LOOKOUT, AND WHILE DISREGARDING A TRAFFIC CONTROL DEVICE, THEREBY RESULTING IN SAID MOTOR VEHICLE OPERATED BY DEFENDANT STRIKING WITH AND AGAINST ANOTHER MOTOR VEHICLE OCCUPIED BY RISHI BHATIA, AN INDIVIDUAL, and did thereby cause the death of RISHI BHATIA.
The evidence at trial established that Strong's decision to become voluntarily intoxicated and then to drive recklessly led to Bhatia's death. Strong's co-workers, Colby Long and Hunter Morgan, testified to the events occurring before the accident. Both Long and Morgan stated that they met Strong at a bar and, after having drinks, left the bar with Strong and others to continue partying at someone's apartment. Morgan testified that, in addition to consuming alcohol, Strong took, approximately six and a half hours before the accident, a "very large hit" of marihuana from a bong that was packed by Long. According to Morgan, Strong became paranoid, walked outside, listened to music, and "was kind of in his own world" after smoking the marihuana. Morgan opined that, because Long was known to use and to mix other drugs in his marihuana bong "hits," the bong smoked by Strong may have contained some other substance. Long testified that Strong, who had driven his girlfriend's vehicle to the party, decided to let Long drive him home. Long testified that, during the ride, Strong started screaming to be let out of Long's vehicle while hitting the car windows. Long testified that he left Strong on the side of the road after he "went nuts."
We understand that a "bong" is a pipe sometimes used to smoke drugs.
Tommy Howard, a firefighter and trained paramedic, was on his way to work when he found Strong lying in the middle of the street. Howard mistakenly believed that Strong had been hit by traffic and stopped to render aid. Howard woke Strong, who did not appear to have any visible injuries, and assisted him to the side of the road. When Howard began to question Strong, Strong pushed Howard into the road, towards traffic. To Howard's surprise, Strong jumped into Howard's car and drove away at a high speed. In a matter of minutes, Strong ran a red light and crashed into a vehicle driven by Rishi Bhatia, killing him immediately. Lynn Salzberger, the medical examiner who conducted Bhatia's autopsy, stated that the time of the accident, and the time of Bhatia's death, was 6:23 a.m.
Chad Swiere, an officer with the Richardson Police Department, testified that Strong admitted at the scene of the accident that he had consumed alcohol. According to Swiere, Strong was combative and had to be physically restrained after he attempted to punch the paramedics who were treating him. Sergeant Brian Meli testified that Strong's blood was drawn at 7:10 a.m. Salzberger, who reviewed evidence gathered as a result of Strong's blood draw, testified without objection that Strong tested positive for marihuana and had a .109 blood-alcohol level. Meli confirmed that Strong's blood specimen was negative for PCP, cocaine, and other hallucinogens and that no testing was requested for other real or synthetic drugs.
During the punishment phase of his trial, Strong's girlfriend, Rochelle Turner, testified that Strong was at her house before the accident. To her surprise, Strong took her vehicle while she was sleeping, without her permission, so that he could go party with Long and Morgan. When she awoke the next morning and could not locate either Strong or her vehicle, Turner called Strong's family, who informed her about the fatal accident. Turner testified that, although Strong had written her a letter apologizing for taking her car, "he didn't really seem remorseful."
Strong testified during the punishment phase of his trial. He apologized to Bhatia's family, asked for forgiveness, and begged for mercy. Strong admitted to taking Turner's car to the party, told the jury he did not know what drugs were in the bong, and told them that "crazy drugs . . . made [him] act the way he act[ed]."
After several witnesses spoke favorably about Strong, including his sister, who said that Strong would never hurt anyone if he was in a normal state of mind, the jury assessed punishment at thirty years' incarceration.
The evidence at trial established that, while Strong stole Howard's vehicle in Dallas County, the accident causing Bhatia's death occurred in Collin County. At the close of the State's evidence, Strong unsuccessfully moved for a directed verdict on the ground that venue was not proper in Dallas County.
On appeal, Strong argues that the State failed to prove proper venue in Dallas County. "Venue is a noncriminative fact that the State must prove by a preponderance of the evidence." Urbanski v. State, 993 S.W.2d 789, 796 (Tex. App.—Dallas 1999, no pet.) (citing TEX. CODE CRIM. PROC. ANN. art. 13.17 (West 2015)); Schmutz v. State, 440 S.W.3d 29, 34 (Tex. Crim. App. 2014). In a legal-sufficiency review of a venue determination, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found, by a preponderance of the evidence, that the offense occurred in the county alleged. Vanschoyck v. State, 189 S.W.3d 333, 336 (Tex. App.—Texarkana 2006, pet. ref'd).
"It is presumed that venue is proved in the trial court, unless the record affirmatively shows otherwise or venue is made an issue at trial." Braddy v. State, 908 S.W.2d 465, 467 (Tex. App.—Dallas 1995, no pet.). "A motion for an instructed verdict of acquittal, specifically challenging the proof of venue, timely raises the issue of venue." Id.
The trial court's jury charge included an instruction tracking the language of Article 13.04, which provides,
An offense committed on the boundaries of two or more counties, or within four hundred yards thereof, may be prosecuted and punished in any one of such counties and any offense committed on the premises of any airport operated jointly by two municipalities and situated in two counties may be prosecuted and punished in either county.TEX. CODE CRIM. PROC. ANN. art. 13.04 (West 2015). Because maps introduced into evidence by the State, Howard's testimony, and testimony from responding police officers established that the accident scene was more than four hundred yards into Collin County, Strong argues that the evidence was insufficient to prove venue by a preponderance of the evidence. Strong is incorrect.
Chapter 13 of the Texas Code of Criminal Procedure contains "special venue statutes [that] expressly apply to identifiable penal code offenses . . . [and] other special venue provisions [that] apply by virtue of the particular facts of the case rather than the specifically charged offense." Murphy v. State, 112 S.W.3d 592, 604 (Tex. Crim. App. 2003). There is no special venue statute expressly applicable to the prosecution of murder. See id. If there is no specific statute governing the venue of an offense, venue is governed by the general statute, which provides that "the proper county for the prosecution of offenses is that in which the offense was committed." TEX. CODE CRIM. PROC. ANN. art. 13.18 (West 2005). Under Article 13.18, a charged offense is committed in two counties when some of the elements of the offense occur in one county and at least one element of the offense occurs in the other county. Jones v. State, 979 S.W.2d 652, 655 (Tex. Crim. App. 1998) (explaining Wood v. State, 573 S.W.2d 207, 210 (Tex. Crim. App. [Panel Op.] 1978)). Thus, when different elements of an offense are committed in different counties, the offense may be prosecuted in any county in which an element was committed. See Wood, 573 S.W.2d at 210-11.
Here, proof of the commission of unauthorized use of a vehicle was a required element of the offense of felony murder. See Stanley v. State, 470 S.W.3d 664, 670 (Tex. App.—Dallas 2015, no pet.). Because Strong stole Howard's vehicle in Dallas County, Dallas County was a proper venue for Strong's felony-murder prosecution. See Jones, 979 S.W.2d at 655; Wood, 573 S.W.2d at 210; see also TEX. CODE CRIM. PROC. ANN. art. 13.23 (West 2015) (unauthorized use of vehicle prosecutable in any county where unauthorized use of vehicle occurred or in county in which vehicle was originally reported stolen). Accordingly, we conclude that sufficient evidence proved by a preponderance of the evidence that venue was proper in Dallas County. We overrule this point of error.
(2) Sufficient Evidence Supports Rejection of Strong's Mistake-of-Fact Defense
Given that Strong was defending against a charge of felony murder—alleging that, while in the course of the underlying felony offense of unauthorized use of a motor vehicle or in the immediate flight from that offense, Strong caused Bhatia's death—Strong claimed that he mistook Howard's vehicle for his own previously owned vehicle. The jury rejected this defense.
Howard testified that the vehicle Strong stole from him was a red Dodge Challenger with black stripes. Strong's sister, Crystal Strong, testified that Strong had previously driven a black 2013 Dodge Challenger while he was living with his mother in Indiana. Crystal further testified that Strong's vehicle was repossessed. At the scene of the accident, Strong told police officers that the vehicle belonged to him.
Based on this evidence, Strong argues that the jury improperly rejected his mistake-of-fact defense because Strong "could have formed a reasonable belief that the vehicle which was the subject of the unauthorized use of a motor vehicle portion of the indictment was . . . his vehicle." We disagree.
"It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense." TEX. PENAL CODE ANN. § 8.02(a) (West 2011). By its very definition, because the mistake-of-fact defense must be based on a "reasonable belief about a matter of fact," the defense is inapplicable where the "mistaken belief is not reasonable." See Gant v. State, 814 S.W.2d 444, 451-52 (Tex. App.—Austin 1991, no pet.); see also Thompson v. State, 236 S.W.3d 787, 800 (Tex. Crim. App. 2007).
When reviewing the jury's rejection of Strong's mistake-of-fact defense, we must be mindful that the jury, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). As such, the jury may choose to believe or disbelieve all or any part of any witness' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex. App.—Dallas 1993, no pet.). A jury is also permitted to make reasonable inferences from the evidence. See Stahle v. State, 970 S.W.2d 682, 686-87 (Tex. App.—Dallas 1998, pet. ref'd).
The jury could have determined that Strong claimed the vehicle at the scene of the accident because he did not want to admit that he had taken it from Howard. Because Crystal testified that Strong's vehicle had been repossessed in Indiana and because the two cars had different coloring, a rational jury could have also concluded that Strong could not have formed a reasonable belief that Howard's vehicle, which he apprehended in Texas and was painted different from Strong's prior vehicle, was Strong's. Accordingly, legally sufficient evidence supported the jury's rejection of Strong's mistake of fact defense. We overrule this point of error.
(3) Strong Was Not Entitled to a Temporary-Insanity Instruction
At trial, Strong requested that the jury's charge on punishment include an instruction on "temporary insanity brought out . . . by voluntary intoxication." On appeal, Strong argues that the trial court's failure to include such an instruction was erroneous. Specifically, he contends that (1) undisputed evidence demonstrating that he was intoxicated at the time of the accident, (2) testimony from several witnesses describing his unusual behavior, (3) video of the accident scene depicting Strong "yelling and screaming and clearly out of control," and (4) Crystal's testimony that Strong had no mental disabilities or disorders entitled him to the temporary insanity instruction.
Our review of alleged jury charge error involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see Sakil v. State, 287 S.W.3d 23, 25-26 (Tex. Crim. App. 2009); Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Initially, we determine whether an error occurred, and then "determine whether sufficient harm resulted from the error to require reversal." Abdnor, 871 S.W.2d at 731-32; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g), reaff'd by Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003).
"Evidence that the defendant was intoxicated at the time of the offense does not automatically entitle him to a mitigation instruction at punishment." Meine v. State, 356 S.W.3d 605, 611 (Tex. App.—Corpus Christi 2011, pet. ref'd) (citing Miniel v. State, 831 S.W.2d 310, 320 (Tex. Crim. App. 1992)). "A court must submit an instruction on insanity by intoxication only if the evidence tends to show the intoxication caused temporary insanity in the defendant." Id. (citing TEX. PENAL CODE ANN. § 8.04(b), (c) (West 2011)). "In order to raise the issue of temporary insanity, the evidence had to suggest that [the appellant] did not know right from wrong at the time of the alleged offense." Id. (quoting Rainey v. State, 949 S.W.2d 537, 543 (Tex. App.—Austin 1997, pet. ref'd)). "Additionally, it must show that he was incapable of conforming his conduct to the law." Id. (citing Cordova v. State, 733 S.W.2d 175, 190 (Tex. Crim. App. 1987) (evidence that a defendant was "crazy drunk" did not require submission of temporary insanity instruction)).
Although there was testimony from witnesses that Strong was a good person and that it was out of character for him to commit a crime, such testimony was not sufficient to establish Strong's entitlement to a temporary insanity defense. See Bray v. State, 634 S.W.2d 370, 373 (Tex. App.—Dallas 1982, no pet.); Villarreal v. State, 661 S.W.2d 329, 332 (Tex. App.—Corpus Christi 1983, no pet.). "To prove temporary insanity by intoxication, [Strong] had to show more than intoxication; he had to present evidence that either the intoxication made him unaware that what he was doing was wrong, or it made him incapable of conforming his conduct to the law." Meine, 356 S.W.3d at 611. Here, though Strong testified that drugs made him act the way he acted, neither Strong, nor any other witness, claimed (1) that Strong did not know that taking Howard's car without his permission was wrong or (2) that Strong was incapable of conforming his conduct to the requirements of the law he violated. See Bray, 634 S.W.2d at 373. Accordingly, we overrule this point of error.
"Additionally, the insanity defense is not available to a 'defendant who was unconscious or semi-conscious at the time of the alleged offense, so that it might be said of him that he did not know his conduct was wrong only because he did not consciously know of his conduct at all.'" Meine, 356 S.W.3d at 611 (quoting Mendenhall v. State, 77 S.W.3d 815, 818 (Tex. Crim. App. 2002)).
Strong cited to Frias v. State, 775 S.W.2d 871, 873 (Tex. App.—Fort Worth 1989, no pet.), in support of his argument that the trial court erred in failing to submit the requested instruction. Frias is easily distinguishable. There, the defendant testified that the cocaine he ingested "made things seem unreal, that he did not know what he was doing, and that he did not realize what was happening." Id.
In fact, the evidence at trial demonstrated that, prior to ingesting any alcohol or drugs, Strong took Turner's vehicle without permission.
We affirm the trial court's judgment.
Josh R. Morriss, III
Chief Justice Date Submitted: May 19, 2017
Date Decided: July 10, 2017 Do Not Publish