Timothy Deyon Broner v. The State of Texas--Appeal from 363rd District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-00-023-CR

TIMOTHY DEYON BRONER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 363rd District Court

Dallas County, Texas

Trial Court # F99-50558-W

O P I N I O N

Appellant Broner appeals his conviction for murder, for which he was sentenced to 50 years in the Texas Department of Criminal Justice, Institutional Division.

Michael Harrell, the deceased victim, was a security guard at Leigh Ann apartments where appellant lived. The apartments have a strict curfew of 10 p.m. that the security guards enforce. Under the curfew rules, a person may not stand around and loiter after 10 p.m., though it is permissible to be outside as long as they are walking or going somewhere.

About 10 p.m. on July 20, 1999, Harrell, in his uniform, approached appellant and his friend, Derrick Henry, and told them to go inside pursuant to the curfew. They complied. Then about 11:45 p.m., appellant and Travis Baudoin left the apartment to go to a store for cigarettes. When appellant left the apartment, he again saw Harrell outside. Cedric Cline, who did not know appellant or Baudoin, was walking to his apartment from his car and saw both Harrell and appellant. Cline never saw Harrell draw his gun, but did see Harrell s hand on his gun in its holster.

Harrell followed appellant and Baudoin across the courtyard and called out Hey fellas, stop, freeze. Appellant and Baudoin turned around and saw Harrell. Cline, near his apartment door, heard an argument and struggle. Appellant punched Harrell and knocked him to the ground. Appellant then took Harrell s pistol and shot him four times while he lay on the ground. Harrell was shot in the neck, chest, arm and leg. Three of the shots were fired from a distance of four feet; one shot was fired from six inches from the victim. Appellant denied that any words were exchanged or any struggle ensued other than the single punch he gave Harrell. Harrell was on the ground, shot, when appellant and Baudoin ran away. Appellant threw the pistol into a trash can as he ran. The police arrived and spoke with Cline. Cline gave them a description of appellant and Baudoin. The description led the police to appellant s apartment the next morning. Appellant was found hiding in a built-in dirty clothes hamper. Appellant was taken to the police station where he confessed to taking Harrell s gun and shooting him with it. Harrell died as a result of the gunshot wounds. Appellant contends he acted in sudden passion when he shot Harrell.

Appellant and Baudoin testified that when they turned after Harrell asked them to Stop-freeze, that Harrell had his gun pointed at their faces. Appellant testified that he was afraid the gun would fire; therefore, he hit Harrell, took his gun and shot him. Appellant testified that he fired blindly, and was not sure if he hit anything or how many shots he fired.

The jury returned a verdict of guilty of murder at the conclusion of the guilt-innocence portion of the trial; and at punishment phase, found that appellant did not cause the death of Harrell while under the immediate influence of sudden passion arising from an adequate cause. The jury then assessed appellant s punishment at 50 years confinement in prison.

Appellant appeals on four issues.

Issue 1: The jury erred in failing to find that appellant acted under the influence of sudden passion. //

A defendant who is convicted of murder can mitigate his punishment if he proves by a preponderance of the evidence that he caused the death under the immediate influence of sudden passion arising from adequate cause. Tex. Pen. Code Sec. 19.02(d).

Section 19.02(a) (1) - (2) states:

(1) Adequate cause means 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.

(2) Sudden passion means 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.

The jury was instructed on sudden passion and found that appellant did not act with same.

Appellant has the burden to prove that he caused the death under the immediate influence of sudden passion arising from adequate cause, by a preponderance of the evidence. Sec. 19.02(d), Id.

The appellate court reviews this point under the factual sufficiency standard. Naasz v. State, 974 S.W.2d 418, 420 (Tex. App. Dallas 1998, pet. ref d); Bumguardner v. State, 963 S.W.2d 171, 176 (Tex. App. Waco 1998, pet. ref d)(citing Meraz v. State, 785 S.W.2d 146, 154 (Tex. Crim. App. 1990).

When conducting a review of the factual sufficiency of the evidence, we begin with the assumption that the evidence is legally sufficient. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We then apply the latest standard of review set out by the Court of Criminal Appeals in Johnson v. State, No. 1915-98, 2000 WL 140257 (Tex. Crim. App. 2000). We ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the [the fact finder s] determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Id. at *8; see also Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d 377 (Tex. App. Austin 1992, pet. ref d); Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997).

Appellant and Baudoin were not in violation of curfew when they walked across the apartment complex at 11:45 p.m. going to the store. Appellant saw Harrell in his security guard uniform when he walked outside and kept walking. Appellant then heard someone yell Stop-freeze. He testified he turned around and saw a man holding a gun pointed at his head. He punched the man, knocked him to the ground, grabbed the gun and shot the man four times. He then ran and threw the gun in a trash can. Three of the gunshots were fired within four feet of the victim and one was fired within six inches of the victim. There was evidence that Harrell had not drawn his gun which the jury was entitled to believe. But assuming that Harrell had drawn his gun, once appellant knocked the victim down and took his gun, appellant was in control, and any adequate cause ceased to exist because Harrell was not armed.

The jury were entitled to reject sudden passion and its rejection of same is not greatly outweighed by contrary evidence, nor is it against the great weight and preponderance of the evidence so as to be manifestly unjust. The evidence is factually sufficient to support the jury s finding that the appellant did not act under sudden passion.

Issue 1 is overruled.

Issue 2: The trial court failed to make findings of fact and conclusions of law regarding the voluntariness of appellant s statements in violation of Article 38.22.

Tex. Code Crim. Proc. art. 38.22 Sec. 6 requires the trial court to conduct a hearing on the voluntariness of a defendant s confession and enter an order stating the conclusion, along with specific findings of fact.

A trial court complies with Article 38.22, Section 6 when the judge dictates his findings of fact and conclusions of law to the court reporter and they are later transcribed as a part of the statement of facts. Parr v. State, 658 S.W.2d 620, 623 (Tex. Crim. App. 1983); Perkins v. State, 779 S.W.2d 918, 925 (Tex. App. Dallas 1989, no pet.).

In this case, the trial judge heard evidence on appellant s motion to suppress his confession and thereafter dictated his findings to the court reporter. Those findings were transcribed and included in the Reporter s Record. The court s findings were:

The court will overrule your objection and the court will rule that the statement was voluntarily given. The defendant was given all his Miranda warnings, and he waived his rights, and voluntarily gave the statement. He gave the statement freely and voluntarily.

At the hearing on the motion to suppress the statement, the court heard only from the detective to whom appellant gave the statement. There were no facts introduced to dispute the voluntariness of the confession.

The dictated findings of the trial court on the uncontested evidence satisfies the requirements of Article 38.22, Sec. 6.

Issue 2 is overruled.

Issue 3: The trial court erred in overruling appellant s objections to the admission of oral statements made as a result of custodial interrogation in violation of Article 38.22.

Article 38.22, Sec. 3(a) Tex. Code Crim. Proc. provides in pertinent part that no oral statement of an accused made as a result of custodial interrogation shall be admissible against the accused unless an electronic recording is made of the statement.

Section (c) states that Section (a) shall not apply to any statement which contains assertions of facts or circumstances that are found to be true and which conduce to establish the guilt of the accused.

Specifically, appellant complains of the trial courts admission of two statements which were not included in his written statement. These statements were:

1) He [appellant] told me he wasn t gonna have anybody put a gun in his face; and

2) He [appellant] told me, after he described to me the events that occurred, that he knew how it was we had come to him and he knew that we had gotten his prints off the gun.

First, appellant did not preserve error for review of this issue. Appellant s objection to each of these statements at trial was that they were outside the scope of 38.22. Appellant s objection on appeal is that the oral statements were not recorded.

Appellants objection here does not comport with the objection made at trial.

To preserve error for appellate review, the complaining party must make a timely specific objection at the earliest possible opportunity and obtain an adverse ruling from the trial court. The point of error on appeal must correspond with the objection made at trial. Turner v. State, 805 S.W.2d 423, 431.

Moreover, appellant s oral statements are admissible under Section 3(c) of Article 38.22, because his statements contain facts and circumstances found to be true. Appellant admitted he took Harrell s gun away from him and shot him four times and then threw it in a trash can. This was found to be true, thus any other oral statement appellant made which conduces to establish his guilt is admissible. Baldree v. State, 784 S.W.2d 676, 684 (Tex. Crim. App. 1989).

Finally, there is overwhelming evidence of appellant s guilt. Appellant testified he shot and killed Harrell. The admission of the two additional oral statements, if error, could not have a substantial effect or influence in determining the jury s verdict. The admission of the two oral statements, if error, was harmless. Tex. R. App. Proc. 44.2(b).

Issue 3 is overruled.

Issue 4: Appellant received ineffective assistance of counsel because counsel failed to have appellant s application for probation sworn to before a Notary Public.

A defendant is eligible for probation only if, prior to trial, he files a sworn motion with the court that he has not before been convicted of a felony. Tex. Code Crim. P. art. 42.12, Section 4 (a). Appellant s trial attorney filed the proper motion, but it was not sworn to.

To show ineffective assistance of counsel, appellant must prove by a preponderance of the evidence that counsel s performance was deficient and that the deficient performance prejudiced the defense. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). To show prejudice, appellant must show that there is a reasonable probability, that but for counsel s errors, the result of the proceeding would have been different. Id.

Appellant has not shown that he was prejudiced by the defective application for probation. The trial court gave the jury the option in its charge of granting probation, if they assessed him 10 years or less. The jury assessed appellant 50 years. Thus, it is clear that probation was not a consideration of the jury.

Appellant has not and cannot show that he suffered any harm from his attorney s failure to have his application for probation sworn.

Issue 4 is overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Vance,

Justice Gray, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed September 27, 2000

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