RICHARD DUANE SHEPARD, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed as Reformed and Opinion filed May 25, 1994.
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-92-02625-CR
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RICHARD DUANE SHEPARD, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F92-04268-SV
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O P I N I O N
Before Justices Baker, Thomas, and Chapman
Opinion By Justice Thomas
        A jury convicted Richard Duane Shepard of murder and assessed a life sentence. In ten points of error, appellant generally complains that
        *    the evidence is insufficient to support the judgment;
        *    the trial court improperly excused two potential jurors;
 
        *    he is entitled to a new trial because he was not provided a complete record of the pre-trial proceedings;
 
        *    the trial court committed reversible error when it denied his requested jury instructions on self-defense and certain lesser-included offenses; and
 
        *    the trial court erred in admitting into evidence a penitentiary packet during the punishment phase of the trial.
In a single cross-point, the State requests that we reform the judgment to reflect a deadly weapon finding. We overrule appellant's points of error and sustain the State's cross-point. We affirm the trial court's judgment as reformed.
FACTUAL BACKGROUND
        Appellant killed Gerald Beine by striking him on the head with an air-conditioning compressor or some other, unknown blunt object. On the day before Beine's body was found, an individual telephoned to report a burglary in progress at an abandoned house. When the police saw Beine on the premises, the officers instructed him to leave. At approximately 2:00 the next morning, an individual telephoned police to report that he had found a dead body at the same abandoned house. It is undisputed that appellant placed both telephone calls.
        The victim's body was found inside the house. The body was located in a living-room area. There were no signs of a struggle. Although there was blood around the victim's head, no other blood was found in the house. An air-conditioner compressor was next to the body. Hair samples taken from the compressor were consistent with the victim's hair. A blood analysis revealed that blood found on the compressor was human blood. However, dirt and grease on the compressor prevented a more specific blood analysis. The victim's injuries were consistent with someone dropping the compressor on his head as he lay on the ground.
        The police located appellant about three months after the murder and interrogated him. Appellant gave the police a written statement. In his statement, appellant admitted that he dropped the compressor or some other object on the victim.
EXCUSING VENIREPERSONS
1. Jackie Christian
        Over appellant's objection, the trial court sua sponte excused Jackie Christian. Appellant complains in his first point of error that the trial court's action arbitrarily altered the selection process.
        The trial judge explained that he excused Christian because she was slumped and asleep in her seat while he addressed the venire panel. Christian consequently missed the trial court's explanation of the presumption of innocence, the burden of proof, proof beyond a reasonable doubt, indictments, a defendant's right not to testify, the definition of murder, lesser-included offenses, the range of punishment--"virtually everything." Christian slept for an hour. The trial judge stated that "it was just as if she had missed a full hour." The trial judge did not anticipate that the prosecutor and defense counsel would use their allotted time to repeat the judge's explanations for the sole benefit of Christian.         
        A trial court should not, on its own motion, excuse a prospective juror for cause unless the juror is absolutely disqualified from serving on the jury. Goodman v. State, 701 S.W.2d 850, 856 (Tex. Crim. App. 1985). However, a defendant must establish harm in order to get the judgment reversed on the basis that a trial court improperly excused a juror. Goodman, 701 S.W.2d at 856.
        To establish harm, a defendant must present a record showing that he:
 
(1)    at the conclusion of voir dire, claimed that he was to be tried by a jury to which he had a legitimate objection;
 
(2)    specifically identified the juror or jurors of which he complained; and
 
(3)    exhausted all peremptory challenges and requested additional peremptory challenges.
Green v. State, 764 S.W.2d 242, 247 (Tex. Crim. App. 1989); see Warren v. State, 768 S.W.2d 300, 303 (Tex. Crim. App. 1989) (applying Green guidelines to non-capital cases). Appellant did not comply with any Green-Warren requirements to establish harm. Accordingly, we overrule the first point of error.
2. Susan Jennings
        In his second point of error, appellant complains that the trial court erred when it excused Susan Jennings for cause. Jennings had been involved in a lawsuit against the prosecutor's parents. The parties to the lawsuit had become "emotional." The prosecutor's father wrote letters "very critical" of Jennings and her husband. Jennings told the trial court that her opinion would not interfere in her listening to the evidence impartially. Jennings added, however, that she would have "negative feelings" about the prosecutor. The trial judge concluded that Jennings's perception of the prosecutor could affect her ability to decide the facts of the case and influence her verdict.
        In reviewing the ruling of a trial court on a challenge for cause based on the bias of a potential juror, the decision of the trial court will not be disturbed absent an abuse of discretion. Vaughn v. State, 833 S.W.2d 180, 184 (Tex. App.--Dallas 1992, pet. ref'd). Great deference must be given to the trial judge, who was in the best position to witness the responses of the prospective jurors and to evaluate their demeanor. Kemp v. State, 846 S.W.2d 289, 295 (Tex. Crim. App. 1992).        
        The State may challenge for cause a potential juror who has a bias or prejudice in favor of the defendant. Tex. Code Crim. Proc. Ann. art. 35.16(6) (Vernon 1989). An inability to be fair and impartial to the State is an expression of bias for the defendant. Zani v. State, 679 S.W.2d 144, 148 (Tex. App.--Texarkana 1984), rev'd on other grounds, 758 S.W.2d 233 (1988); Ransom v. State, 630 S.W.2d 904, 908 (Tex. App.--Amarillo 1982, no pet.). Bias exists as a matter of law when a prospective juror admits that he is biased for or against a defendant. Anderson v. State, 633 S.W.2d 851, 854 (Tex. Crim. App. [Panel Op.] 1982); Brandon v. State, 599 S.W.2d 567, 572 (Tex. Crim. App. 1979). A potential juror shown to be biased as a matter of law must be excused when challenged. Anderson, 633 S.W.2d at 854. If bias is not established as a matter of law, the trial court's ruling is reviewed in light of all the juror's answers. Vaughn, 833 S.W.2d at 184.
        Jennings statement that she would have negative feelings about the prosecutor amounted to bias as a matter of law in favor of appellant. Thus, the trial judge did not err in excusing Jennings on that basis. Even assuming that the trial court retained discretion to excuse Jennings, the trial court did not abuse that discretion. The trial court was present when Jennings was questioned and concluded that Jennings's opinions "certainly" could affect her ability to decide facts and, ultimately, her verdict. Based upon the record, we conclude that the trial court did not abuse its discretion. Accordingly, we overrule the second point of error.
INCOMPLETE RECORD
        Appellant complains that he is entitled to a new trial because the court reporter failed to provide a transcript of the pre-trial hearing on the voluntariness of his written statement. Appellant argues that his designation of record on appeal encompassed the pre-trial hearing.
         Upon request of the court or any party to a case, the court reporter shall make a full record of the evidence, including objections, rulings, and remarks of the court thereon. Tex. R. App. P. 11(a)(1). The right to have proceedings transcribed by the court reporter is waived when transcription is not requested. Haynes v. State, 727 S.W.2d 294, 296-97 (Tex. App.--Houston [1st Dist.] 1987, pet. dism'd) (citing Wells v. State, 578 S.W.2d 118, 119 (Tex. Crim. App. [Panel Op.] 1979)).
        If the appellant has timely requested a statement of facts, but the court reporter's notes and records have been lost or destroyed without appellant's fault, the appellant is entitled to a new trial unless the parties agree on a statement of facts. Tex. R. App. P. 50(e). An appellant is not entitled to a new trial under rule 50(e) if it is not apparent from the record that no record of a proceeding was kept and lost or destroyed. Gibbs v. State, 819 S.W.2d 821, 828 (Tex. Crim. App. 1991); see Tex. R. App. P. 50(e).
        The record does not support appellant's complaint. See Tex. R. App. P. 50(d) (burden is on appellant, or other party seeking review, to see that sufficient record is presented to show error requiring reversal). The record before us does not indicate that the court reporter was present at the pre-trial hearing. There is no showing that appellant requested the court reporter to take notes of the pre-trial hearing. Nothing suggests that the records were lost. We overrule the third point of error.
INSTRUCTION ON SELF-DEFENSE
        Appellant complains that the trial court erred in refusing to instruct the jury on the law of self-defense. See Tex. Penal Code Ann. § 9.31(a) (Vernon 1974) (self-defense); Tex. Penal Code Ann. § 9.32 (Vernon Supp. 1994) (deadly force in defense of person). If evidence raises the issue of self-defense, an accused is entitled to a jury instruction on the issue. Semaire v. State, 612 S.W.2d 528, 530 (Tex. Crim. App. 1980). The accused has the burden of producing sufficient evidence to raise the issue of self-defense. Tex. Penal Code Ann. § 9.31 (Vernon 1974); Luck v. State, 588 S.W.2d 371, 375 (Tex. Crim. App. 1979); Russell v. State, 834 S.W.2d 79, 81 (Tex. App.--Dallas 1992, pet ref'd). If the evidence, viewed in a favorable light does not establish a case of self-defense, the instruction is not required. Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984); Broussard v. State, 809 S.W.2d 556, 558 (Tex. App.--Dallas 1991, pet ref'd). To determine if all elements of sections 9.31 and 9.32 have been raised, we look to the surrounding circumstances. Broussard, 809 S.W.2d at 559.
        The only account of appellant's use of force is found in his statement to the police. Appellant said that he slept in a vacant house. The victim on occasion stayed at the house. On the night he was killed, the victim walked into a room where appellant usually stayed. The victim fumbled with appellant's pants and tried to unbuckle his belt. Appellant told the victim that he was not interested in the sexual advances. Appellant poked the victim in the chest in order to get him out of the house. The victim tripped, fell to the floor, stood up, and swung a stick. Appellant hit the victim once, knocking him back to the floor. Appellant bent down "because I was going to hit [Beine] a couple of times to let him know that I was serious." Appellant's knee then hit "a compressor or something." Appellant hit the victim once with the object. Appellant thought he "heard something go crunch" and dropped the object. He lit a candle and saw that the victim was badly injured.
        There is no evidence that appellant reasonably believed that the use of deadly force was immediately necessary to protect himself against use or attempted use of force by the victim. See Broussard, 809 S.W.2d at 558-59. The stick might or might not have justified appellant's striking back. However, once the victim had fallen, nothing suggests that appellant reasonably believed the victim was using or attempting to use unlawful force. The victim had fallen to the floor and was intoxicated. The record is silent as to victim's actions, if any, at the time he was killed. Absent evidence of use or attempted use of deadly force by the victim, the statutory defense permitted by section 9.32 is not available. We conclude appellant was not entitled to a jury instruction. Werner v. State, 711 S.W.2d 639, 644 (Tex. Crim. App. 1986); Bray v. State, 634 S.W.2d 370, 372-73 (Tex. App.--Dallas 1982, no pet.).         Additionally, the circumstances do not show that appellant reasonably believed deadly force to be immediately necessary. Nothing shows that the victim had renewed his attack. Because no evidence demonstrates that deadly force was immediately necessary, appellant was not entitled to the instruction. McFarland v. State, 834 S.W.2d 481, 487-88 (Tex. App.--Corpus Christi 1992, no writ). Accordingly, we overrule the fourth point.
INSTRUCTIONS ON LESSER-INCLUDED OFFENSES
        In points of error five through eight, appellant complains that the trial court erred by refusing to submit instructions on manslaughter, involuntary manslaughter, criminally negligent homicide, and aggravated assault. To be entitled to a charge on a lesser-included offense, a defendant must satisfy a two-part test. First, the lesser-included offense must be included within the proof necessary to establish the offense charged. FN:1 Second, some evidence must exist that would permit a jury rationally to find that if a defendant is guilty, the defendant is guilty of only the lesser offense. See Adanandus v. State, 866 S.W.2d 210, 230 (Tex. Crim. App. 1993).         
        We determine entitlement to a jury instruction on a lesser-included offense on a case-by-case basis according to the particular facts. Livingston v. State, 739 S.W.2d 195, 217 (Tex. Crim. App. 1987), cert. denied, 487 U.S. 1210 (1988). If evidence from any source raises the issue and a jury charge on the issue is properly requested, the issue must be submitted. Moreno v. State, 702 S.W.2d 636, 640 (Tex. Crim. App. 1986). A trial court must submit the instruction even if the evidence was weak, contested, or incredible. Gold v. State, 736 S.W.2d 685, 688 (Tex. Crim. App. 1987). But see Bartholomew v. State, 871 S.W.2d 210, 212 (Tex. Crim. App. 1994) (emphasizing that evidence must exist in record that would permit jury rationally to find that if defendant is guilty, he is guilty only of lesser offense). We review the entire record in determining whether any evidence raised the lesser-included offenses. Havard v. State, 800 S.W.2d 195, 216 (Tex. Crim. App. 1989) (op. on reh'g).
Voluntary Manslaughter
        A charge on voluntary manslaughter is appropriate when there is evidence that the defendant caused the death under the "immediate influence of sudden passion arising from adequate cause." Tex. Penal Code Ann. § 19.04(a) (Vernon 1989). The "sudden passion" must be directly caused by and arising out of provocation by the individual killed or another acting with the person killed. Tex. Penal Code Ann. § 19.04(b) (Vernon 1998). "Adequate cause" is 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. § 19.04(c) (Vernon 1989).
        Appellant does not identify any evidence that raises the lesser-included offense. He merely cites to argument of trial counsel. At trial, counsel argued that an issue on voluntary manslaughter was raised by appellant's statement that the victim had fumbled with appellant's pants and tried to unbuckle his belt. Trial counsel and appellant interpreted the victim's actions as unwanted sexual advances. He argued that the "advances" adequately caused appellant's sudden passion.
        Sudden passion is an excited and agitated state of mind at the time of the killing caused by direct provocation by the victim or someone acting with the victim. Merchant v. State, 810 S.W.2d 305, 309 (Tex. App.--Dallas 1991, pet. ref'd); Brunson v. State, 764 S.W.2d 888, 894 (Tex. App.--Austin 1989, pet. ref'd). There must be evidence that the accused acted in the throes of actual, subjective passion. Merchant, 810 S.W.2d at 310; Lopez v. State, 716 S.W.2d 127, 129 (Tex. App.--El Paso 1986, no writ).
        Appellant's statement contains the only evidence of his state of mind. Appellant bent down to hit the victim for a purpose; appellant wanted the victim know that he was serious. Appellant's statement, therefore, demonstrates that he acted after cool reflection. Thus, statement does not show circumstances demonstrating sudden passion. Voluntary manslaughter cannot be considered a lesser-included offense of murder unless there is some evidence of sudden passion. See State v. Lee, 818 S.W.2d 778, 782 (Tex. Crim. App. 1991) (plurality); Brunson, 764 S.W.2d at 893. We overrule appellant's eighth point of error.
Involuntary Manslaughter , Criminally Negligent Homicide, and Aggravated Assault
        The requested instructions on the lesser-included offenses of involuntary manslaughter, criminally negligent homicide, and aggravated assault were not required without some evidence from which a rational jury could have concluded that appellant did not intend to cause the victim's death. Adanandus, 866 S.W.2d at 232 (involuntary manslaughter); Dowden v. State, 758 S.W.2d 269, 271 (Tex. Crim. App. 1988) (criminally negligent homicide and aggravated assault).
        Appellant's statement to police contains no evidence that he did not intend to kill the victim. Appellant told police that he intentionally dropped the forty- to fifty-pound compressor onto the victim as he lay on the floor. Additionally, appellant's statement that he bent down to hit the victim "a couple of times" to show the victim he was serious is not evidence that he lacked intent to kill the victim. Appellant's statement concerns only his state of mind before he discovered the compressor or the unknown blunt instrument and decided to strike the victim with it. Appellant did not disclose his intent after he discovered the object with which he struck the victim. The possibility that appellant did not initially intend to cause death does not amount to evidence that he did not intend to cause the victim's death when the murder was committed. Appellant must only have formulated an intent to cause death when he actually committed the murder. Rousseau v. State, 855 S.W.2d 666, 674 (Tex. Crim. App. 1993) (upholding refusal to instruct on lesser-included offense). Finally, appellant's statement that he called an ambulance for the victim is not evidence of a lack of intent to kill at the time of the murder. See Rousseau, 855 S.W.2d at 674; see also Callins v. State, 780 S.W.2d 176, 181 (Tex. Crim. App. 1986), cert. denied, 497 U.S. 1011 (1990) (defendant's expression of concern for victim after shooting did not negate deliberateness of criminal act).
        The record does not contain evidence from which a rational jury could conclude that appellant did not intend to kill the victim by striking him with the compressor or an unknown blunt object. We overrule the fifth, sixth, and seventh points of error.
 
ADMISSION OF THE PENITENTIARY PACKET
        Appellant complains that the trial court erred during the punishment phase by admitting State's exhibit number forty, a penitentiary packet. Appellant seeks reversal because the indictment alleges a prior felony conviction under one cause number while the pen packet shows the conviction under a different number. Appellant contends that this constitutes a fatal variance between the allegations and proof. We disagree.
        The court of criminal appeals has previously decided this issue adversely to appellant. Cole v. State, 611 S.W.2d 79 (Tex. Crim. App. [Panel Op.] 1981). The Cole court held that alleging the wrong cause number but the right court, county, date, and offense produces no fatal variance. The court reasoned that under those circumstances, transpositional error in cause numbers would not prevent a defendant from finding the record of the prior conviction and presenting a defense. Cole, 611 S.W.2d at 82. We overrule the ninth point of error.
SUFFICIENCY OF THE EVIDENCE
        In his final point of error, appellant challenges the sufficiency of the evidence to support the verdict. He specifically argues that there is insufficient evidence to establish that he used a deadly weapon. We disagree.
        The indictment alleged that appellant caused Beine's death by striking the victim with (i) an air-conditioning compressor, a deadly weapon, or (ii) a blunt object, a deadly weapon, the exact nature and description of which was unknown to grand jurors. "Deadly weapon" is defined, in part, as anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Penal Code Ann. § 1.07(a)(11)(B) (Vernon 1974). In determining the deadliness of a weapon, the jury may consider all the facts of a case. Blain v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983). The manner in which an object is used is the most important factor in deciding whether an object is a deadly weapon. Jones v. State, 843 S.W.2d 92, 97 (Tex. App.--Dallas 1992, writ ref'd). Injuries or wounds inflicted upon a person are a factor to consider in determining whether a weapon is a deadly weapon. Denham v. State, 574 S.W.2d 129, 131-32 (Tex. Crim. App. 1978); Harper v. State, 753 S.W.2d 516, 518 (Tex. App.--Houston [1st Dist.] 1988, pet. ref'd.). The weapon's size, shape, and capacity to cause death or serious bodily injury are additional factors. Jaskson v. State, 668 S.W.2d 723, 725 (Tex. App.--Houston [14th Dist.] 1983, pet. ref'd); see Tex. Penal Code Ann. § 1.07(a)(11)(B) (Vernon 1974).
        In reviewing the sufficiency of evidence to support a conviction, we view the evidence in the light most favorable to the verdict. Flournoy v. State, 668 S.W.2d 380, 383 (Tex. Crim. App. 1984). We determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318 (1979); Geesa v. State, 820 S.W.2d 154, 156-57 (Tex. Crim. App. 1991). Questions concerning credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985).
        Appellant's statement and the forensic testimony established the manner in which the compressor or blunt object was used. Appellant told police that he intentionally hit the victim once with the compressor "or something" after he knocked Beine to the floor. The victim's injuries were consistent with having the compressor dropped on his head as he lay on the floor. Based in part on the manner of the compressor's use, the forensic expert testified that the compressor was a deadly weapon if it was the object that caused the injuries. This witness also testified that if the compressor was not used to cause death, a blunt object was.
        The jury heard testimony about these injuries. Blunt force caused the victim's skull to fracture and his brain to hemorrhage. These injuries caused the victim's death. Either the compressor or a blunt instrument was the deadly weapon which caused these injuries.
        The jury also heard testimony about the size and shape of the compressor or blunt object and its capacity to cause serious bodily injury. The compressor weighed forty to fifty pounds. One drop of the compressor could cause the injuries. Based in part on its characteristics, the forensic expert testified that the compressor was a deadly weapon if it was used to cause this death. He testified similarly about a blunt object that might have caused the injuries.
        We conclude that any reasonable juror could have found the compressor or other blunt object used to kill the victim was a deadly weapon. Accordingly, we overrule appellant's tenth point of error.
 
STATE'S CROSS-POINT
        The indictment alleged that appellant caused the victim's death with either the compressor or an unknown blunt object. The compressor and unknown object each were alleged to be deadly weapons. The jury found appellant guilty "as charged in the indictment." The judgment, however, recites that the jury did not make a deadly weapon finding.         
        A jury makes an affirmative deadly weapon finding when it finds a defendant guilty as charged in the indictment and the indictment names the weapon and alleges it to be a deadly weapon. Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985). The record in the present case, therefore, contains an affirmative deadly weapon finding. The code of criminal procedure requires that upon an affirmative finding that a deadly weapon was used or exhibited, the trial court shall enter the finding in its judgment. Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. 1994). The trial court has no discretion to do otherwise. Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988).
        We have authority to reform a judgment to include an affirmative finding to make the record speak the truth when the matter has been called to our attention by any source. French v. State, 830 S.W.2d 607, 608 (Tex. Crim. App. 1992); Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.--Dallas 1991, pet. ref'd) (en banc). We sustain the State's cross-point and reform the judgment only to the extent that it reflect an affirmative deadly weapon finding.
        We affirm the trial court's judgment as reformed.
 
 
 
                                                          
                                                          LINDA THOMAS
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 90
922625F.U05
 
 
 
FN:1 Each of the offenses for which appellant requested an instruction can be a lesser-included offense of murder. Sattiewhite v. State, 786 S.W.2d 271, 178 (Tex. Crim. App. 1989) (voluntary manslaughter), cert. denied, 498 U.S. 881 (1990); Dowden v. State, 758 S.W.2d 264, 270 (Tex. Crim. App. 1988) (involuntary manslaughter); Thomas v. State, 699 S.W.2d 845, 847 (Tex. Crim. App. 1985) (criminally negligent homicide); Sledge v. State, 860 S.W.2d 710, 714 (Tex. App.--Dallas 1991, pet ref'd) (aggravated assault).
 
File Date[05-24-94]
File Name[922625F]