Musial, Randall Joseph v. The State of Texas--Appeal from 204th District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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RANDALL JOSEPH MUSIAL, ) No. 08-02-00029-CR

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Appellant, ) Appeal from

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v. ) 204th District Court

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THE STATE OF TEXAS, ) of Dallas County, Texas

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Appellee. ) (TC# F-0032367-JQ)

O P I N I O N

Appellant, Randall Joseph Musial, and complainant, Billy Musial, were brothers. The two had a turbulent relationship, which ended with Randall shooting Billy to death in a final confrontation. The only firsthand account of this confrontation at trial came via appellant=s statements to police. A jury convicted appellant of murder and assessed life imprisonment and a $10,000 fine. On this appeal, appellant claims the trial court erred: (1) in refusing to charge the jury on self defense; (2) in refusing to charge the jury on the lesser included offense of aggravated assault; and (3) in admitting autopsy photos of the complainant. We affirm.

Appellant came to live with his brother, Billy, and his wife, Alice, in March 2000. Billy and Alice had met in 1989 and later married. But by the time appellant moved in, the couple was having severe marital problems. Appellant and Alice then had an affair, which broke up the marriage, leaving Billy Aheartbroken.@ Fatefully, on July 17, 2000, Alice entered appellant=s apartment and found Billy dead in a chair. He had been shot twice in the head.

According to appellant, he and Billy were involved in numerous altercations prior to the shooting. First, when appellant told Billy about the affair, he and Billy pushed each other. Billy then retrieved a .30 30 rifle and began loading it. Appellant called the police, who confiscated the rifle. Later, Billy filed assault charges against appellant. On another occasion, Billy approached appellant and started pushing him. In one of appellant=s statements, he claimed Billy was unsuccessfully trying to get appellant to fight back so he could again press assault charges.

Shortly before the shooting, appellant decided to extricate himself from this situation and leave Texas by himself. The day of the shooting, appellant covertly took a .22 caliber pistol from a neighbor=s house, went home and put it on the television by the front door. Appellant started drinking vodka, and then called Billy to tell him he was leaving town, but that he wanted Billy to come over so they could talk. Appellant stated he just wanted to Ascare@ Billy. In his statements to police, appellant gave three similar versions of what happened when appellant opened the door for Billy:

1. When he got there I opened the door & he hit me in the face with something. I grabbed the gun off of the television. I was probably a couple of feet from him and the gun went off.

2. When Billy hit me, I grabbed the gun and turned around towards him and it went off. It went off twice. I wasn=t thinking. When I picked up the gun, Billy was coming at me and the gun went off.

3. As soon as he stepped [in] he hit me. I turned around and grabbed the gun. I guess he seen the gun. He started going backwards toward the chair. It went off twice. . . . It was one fast motion. I was right by the door and t.v. I can=t recollect seeing his hands. Once I got hit it happened so fast.

II

Self Defense

Appellant claims that the court erred in refusing his requested self defense charge because the following evidence raised that issue: (1) Billy and appellant had previous violent altercations, (2) Billy immediately began assaulting him with his fists and an unidentified object when he opened the door, and (3) appellant was in his home.

A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other=s use or attempted use of unlawful force. Tex.Pen.Code Ann. ' 9.31(a)(Vernon Supp. 2003). A person is justified in using deadly force against another: (1) if he would be justified in using force against the other under Section 9.31, (2) if a reasonable person in the actor=s situation would not have retreated, and (3) when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other=s use or attempted use of unlawful deadly force. Tex.Pen.Code Ann. ' 9.32(a).[1] A trial court must give a jury instruction on a defensive theory raised by the evidence regardless of whether such evidence is strong, feeble, impeached, or contradicted, and even if the trial court is of the opinion that the testimony is not entitled to belief. Brown v. State, 955 S.W.2d 276, 279 (Tex.Crim.App. 1997). In order to be entitled to an instruction on the use of deadly force in self defense, the defendant must produce some evidence on each of the three elements of Section 9.32. Henderson v. State, 906 S.W.2d 589, 594 95 (Tex.App.- El Paso 1995, pet. ref=d). If the issue is raised by any party, refusal to submit the requested instruction is an abuse of discretion. Id. But if the evidence fails to raise a defensive issue, the trial court commits no error in refusing a request. Id.

We need only address the third element because the evidence did not show (1) that Billy used deadly force against appellant, and (2) that appellant reasonably believed his use of deadly force was immediately necessary to protect himself Billy=s use of force. Each account given by appellant simply states Billy delivered a single blow with an unidentified object. Appellant presents no evidence that this object was any more capable of causing injury than a fist, and the circumstances leave us no reason to infer otherwise. Further, appellant provided no evidence of his subjective belief of any real or apparent danger of deadly force present at the time of the shooting. He did not show why he believed he immediately needed to use deadly force to protect himself, nor why he thought Billy had inflicted or was about to inflict deadly force.[2] Therefore, viewing the totality of the evidence in the light most favorable to appellant, we hold that Billy=s single blow with an unidentified object did not constitute deadly force. See Tex.Pen.Code Ann. '' 1.07(a)(46), 9.01(3); see also Ogas v. State, 655 S.W.2d 322, 324 (Tex.App. Amarillo 1983, no pet.)(holding a blow to the face with an open or closed hand to the face does not justify deadly force); Molitor v. State, 827 S.W.2d 512 (Tex.App. Austin 1992), rev=d on other grounds and abated, 862 S.W.2d 615 (Tex.Crim.App. 1993)(blow to the head not deadly force); cf. Rucker v. State, 599 S.W.2d 581, 582-83 (Tex.Crim.App. 1979)(holding that numerous blows with fist, causing black eyes, cuts and bruises, did not constitute Aserious bodily injury@). Further, we hold that the evidence did not show that appellant held a reasonable belief that the use of deadly force against Billy was immediately necessary to avoid imminent seriously bodily injury or death. See Tex.Pen.Code Ann. ' 9.32(a). Accordingly, appellant was not entitled to a charge on self defense. We overrule this issue.

Lesser-Included Offense

In his second issue, appellant argues the court erred in refusing to charge the jury on the lesser-included offense of aggravated assault.[3] To determine whether appellant was entitled to a jury charge on the lesser included offense, we apply a traditional two prong test. Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994); Ramirez v. State, 976 S.W.2d 219, 226 27 (Tex.App.--El Paso 1998, pet. ref=d). First, the lesser included offense must be included within the proof necessary to establish the offense charged. Bignall, 887 S.W.2d at 23. Second, some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Ramirez, 976 S.W.2d at 227. The credibility of the evidence and whether it conflicts with other evidence or is controverted may not be considered in making the determination of whether the lesser included offense should be given. Gadsden v. State, 915 S.W.2d 620, 622 (Tex.App.- El Paso 1996, no pet.). Regardless of its strength or weakness, if any evidence raises the issue that the defendant was guilty only of the lesser offense, then the charge must be given. Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App. 1992). However, the evidence must establish the lesser included offense as a valid, rational alternative to the charged offense. Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.Crim.App. 2000).

The state does not dispute that aggravated assault can be a lesser-included offense of murder; thus the first prong is satisfied. See Cardenas v. State, 30 S.W.3d 384, 392 (Tex.Crim.App. 2000). Regarding the second prong, appellant claims that his statements that the gun Awent off@ shows his conduct was Aaccidental@ or Aunintentional.@ Accordingly, he argues, the jury should have been permitted to consider aggravated assault. We first note that the offense of aggravated assault only implicates intentional, knowing, and reckless mental states. Tex.Pen.Code Ann. '' 22.01(a)(1), 22.02(a)(aggravated assault committed by intentionally, knowingly, or recklessly causing serious bodily injury to another). We assume, then, that appellant is referring to the lowest standard of culpability, recklessness, when he asserts his conduct was accidental or unintentional.

The penal code states that AA person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.@ Tex.Pen.Code Ann. ' 6.03(c). Here, appellant does not give any indication that he acted with conscious disregard of the risks involved in picking up the pistol, pointing it in Billy=s direction, and firing it. If anything, his stating that he Awasn=t thinking@ and that the gun Awent off@ indicates he acted without any culpable mindset at all, thus undermining any reasonable inference that he was consciously aware of any risks associated with his actions. See Gonzales v. State, 632 S.W.2d 899, 903 (Tex.App.- Dallas 1982, pet. ref=d)(holding that reckless conduct not raised where there was no evidence defendant consciously disregarded an unjustifiable risk without intent to kill). Nor is there any other evidence in the record from which a jury could infer that appellant acted under the recklessness standard. Without such evidence, a finding of reckless conduct, and thus a charge of aggravated assault, is not a viable, rational alternative to the charged offense. The court did not err in refusing to charge aggravated assault. We overrule this issue.

Autopsy Photos

In his final issue, appellant complains that the trial court erroneously admitted 15 Ainflammatory@ autopsy photos showing various depictions of complainant and his wounds. Admissibility of photographs is within the sound discretion of the trial judge. Jones v. State, 843 S.W.2d 487, 500 (Tex.Crim.App. 1992). Rule 403 provides that, although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Tex.R.Evid. 403; Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Crim.App. 1995). In determining whether the inflammatory nature outweighs its probative value, the trial court should consider Athe inherent tendency that some evidence may have to encourage [the] resolution of material issues on an inappropriate basis and should balance carefully against it the host of factors affecting probativeness, including relative weight of the evidence and the degree to which its proponent might be disadvantaged without it.@ Fuller v. State, 829 S.W.2d 191, 206 (Tex.Crim.App. 1992). Relevant factors in ascertaining the admissibility of photographs under Rule 403 include the number of exhibits offered, their gruesomeness, detail, size, whether they are black and white or color, whether they are close up, whether the body is naked or clothed, the availability of other means of proof, and other circumstances unique to the individual case. Santellan v. State, 939 S.W.2d 155, 172 (Tex.Crim.App. 1997). Where pictorial evidence will help the jury understand verbal testimony, such as the technical language used by a medical doctor in describing the injuries sustained by a victim of a crime, a trial court does not abuse its discretion in admitting these photographs. Harris v. State, 661 S.W.2d 106, 107 (Tex.Crim.App. 1983). Generally, autopsy photographs are admissible unless they depict mutilations of the victim due to the autopsy itself. See Rojas v. State, 986 S.W.2d 241, 249 (Tex.Crim.App. 1998). Photographs that depict the nature, location, and extent of a wound have generally been deemed probative enough to outweigh any prejudicial effects such photos may have on the jury, and these types of photographs are therefore properly admissible. See Etheridge v. State, 903 S.W.2d 1, 21 (Tex.Crim.App. 1994). Appellant contends the photos were admitted to prove the fatal nature of complainant=s wounds, an issue not contested at trial. Thus, he says, the combined prejudicial effect of these Agruesome@ photos substantially outweighed their probative value. The state responds, and we agree, that the photos were probative of matters like bullet trajectory, location of wounds, and range of fire, thus enabling the jury to see how the physical evidence and circumstances of the shooting compared to appellant=s version of the facts. The photos also complemented the medical examiner=s testimony. See Harris, 661 S.W.2d at 107. Further, the state points out that some of the photos were Aas-is,@ which depicted no more than the reality of the wounds inflicted. See Rojas, 986 S.W.2d at 249. Although the photographs of complainant are disturbing, as would be almost any photos of a shooting victim, the wounds are relatively small and none of the photos are particularly graphic or gruesome.[4] Further, they do not appear to reflect any more than the crime committed. See Chamberlain v. State, 998 S.W.2d 230, 237 (Tex.Crim.App. 1999). In view of the relevant factors, then, we find that the prejudicial effect of the disputed photographs did not substantially outweigh their probative value. Accordingly, we find the trial court properly exercised its discretion in admitting the photographs. Appellant=s final issue is overruled.

The judgment of the trial court is affirmed.

January 30, 2003

DON WITTIG, Justice

Before Panel No. 5

McClure, Chew, and Wittig, JJ.

(Wittig, J., sitting by assignment)

(Do Not Publish)

[1] ADeadly force@ means Aforce that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.@ Tex.Pen.Code Ann. ' 9.01(3).

ASerious bodily injury@ is defined as any injury that Acreates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.@ Tex.Pen.Code Ann. ' 1.07(a)(46)(Vernon 1994).

[2] Additionally, notwithstanding their earlier confrontations, according to Alice Musial=s uncontradicted testimony, Billy Acouldn=t beat anybody up@ and was not a physical threat to appellant. Moreover, appellant admitted that he had called Billy to the house for the purpose of scaring him.

[3] The court did charge the jury on the lesser-included offense of manslaughter.

[4] We note that the photos provided with the record are in black and white.