LOYD EDWARD EISERT, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed November 13, 2006.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-01604-CR
............................
LOYD EDWARD EISERT, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F04-41849-WU
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MEMORANDUM OPINION
Before Justices Moseley, Francis, and Mazzant
Opinion By Justice Moseley
        A jury convicted Loyd Edward Eisert of the murder of Shirley Hawkins and set punishment at confinement for life. Eisert appeals, asserting in three issues that the evidence is legally and factually insufficient to support his conviction and the trial court erred in failing to instruct the jury on the mitigation issue of sudden passion at the punishment stage of trial. The background of the case and the evidence adduced at trial are well known to the parties; thus we do not recite them here in detail. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. For the reasons set forth below, we affirm the trial court's judgment.
        Eisert's first and second issues challenge the legal and factual sufficiency of the evidence to support his conviction. We apply the appropriate standards of review. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (legal sufficiency); Watson v. State, 2006 WL 2956272, *7 (Tex. Crim. App. Oct. 18, 2006) (factual sufficiency); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000) (factual sufficiency); Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995) (legal sufficiency). We may not substantially intrude on the jury's role as sole judge of the weight and credibility given to witness testimony. See Tex. Code Crim. Proc. Ann. Art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 7. The jury is free to accept or reject any or all of the evidence presented by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). Furthermore, reconciling conflicting testimony is within the exclusive province of the jury. See Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001).
        We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. See Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002); Gollihar v. State, 46 S.W.3d 243, 256 (Tex. Crim. App. 2001); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A person commits the first degree felony offense of murder if he intentionally or knowingly causes the death of an individual. Tex. Pen. Code Ann. § 19.02 (Vernon 2003).
        The record contains evidence that Eisert lived with Hawkins, his girlfriend. On Christmas Eve of 2004, police were called to Hawkins's house where they found Eisert sitting in a recliner chair and Hawkins lying dead on the floor. Hawkins had been shot with a shotgun in the neck and was killed instantly. Eisert, who appeared distraught and intoxicated, told the police that Hawkins had been shot and he did not know who did it.
        The police took Eisert to the police station where he was read his rights and interviewed. In Eisert's statement to the police he said he and Hawkins got into an argument and he fired the shotgun to scare her but he did not intend to kill her or cause serious bodily injury. After firing the shotgun, Eisert left the house and took the shotgun with him, went to a bar and, on his way home, threw the shotgun in the creek. When Eisert returned home he found Hawkins dead on the floor. Based on the inconsistencies in Eisert's statement, the police arrested him. Police later found a Winchester 12-gauge shotgun in a bag floating in Mesquite Creek. The firearm examiner testified the shotgun was not prone to accidental discharge. The police investigator concluded based on the position of the victim, the wound, and the pellets found, that the shot was fired from the chair. The police investigator also testified that there would have been no way for Eisert to leave the house without having to step over Hawkins body because she was between him and the door. Eisert has a history of violence and alcohol abuse. Eisert stipulated that he had been convicted of theft, driving with a suspended license, and three DWI offenses.
        Having considered all the evidence in the record (including the above evidence) in the light most favorable to the verdict, we conclude a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Mason, 905 S.W.2d at 574.
        Eisert argues the only evidence “elevating this manslaughter case to a case for murder” was evidence that Eisert had taken out an insurance policy on Hawkins's life months before her death. Premiums were never paid on the policy, and the policy paid only for Hawkins's “accidental” death. Apparently this is the basis for Eisert's argument that the evidence is factually insufficient to support his murder conviction.
        However, the jury could have accepted Eisert's contention that he did not kill Hawkins in an attempt to collect any insurance and still convict him of murder; his own statement to the police indicated he shot the gun to scare her. Furthermore, reconciling conflicting testimony is within the exclusive province of the jury. See Goodman, 66 S.W.3d at 287.
        Viewing all the evidence in a neutral light, we conclude the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson, 2006 WL 2956272 at *7. We need not further detail the rest of the evidence. See Sims v. State, 99 S.W.3d 600 (Tex. Crim. App. 2003). We conclude the evidence is legally and factually sufficient to support Eisert's conviction for murder. We resolve Eisert's first and second issues against him.
        In Eisert's third issue, he contends the trial court erred in not submitting the mitigation issue of sudden passion in the jury charge at the punishment stage of trial. Eisert admits that because he did not object to the charge as submitted or request an instruction on sudden passion, we may not reverse on this point unless we find egregious harm. Almanza v. State, 686 S.W.2d 157, 171-72 (Tex. Crim. App. 1985).
        However, our first duty in analyzing a jury charge issue is to decide whether error exists. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). Only if we find error do we apply the appropriate harm analysis depending on whether the error was preserved in the trial court. See id; Almanza, 686 S.W.2d at 171.
        At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from adequate cause. Tex. Pen. Code Ann. § 19.02(d) (Vernon 2003). If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree. Id. Thus sudden passion arising from adequate cause is a defensive issue. The trial court had no duty to sua sponte instruct the jury on unrequested defensive issues. Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998). Thus, absent an objection or request from Eisert, the trial court's failure to instruct the jury with respect to sudden passion is not error. Absent error, no harm analysis is necessary. We resolve Eisert's third issue against him.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
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