James Townzen, Jr. v. The State of Texas--Appeal from 220th District Court of Hamilton County

IN THE

TENTH COURT OF APPEALS

No. 10-92-236-CR

JAMES TOWNZEN, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 220th District Court

Hamilton County, Texas

Trial Court # 6568

O P I N I O N

James Townzen, Jr. appeals his conviction for voluntary manslaughter. Townzen was found guilty by a jury, and the jury assessed punishment at twelve years in prison and a $5000 fine.

In point one Townzen contends that the court erred in failing to charge the jury on the defendant's right to self-defense against multiple assailants. He argues that he was attacked by four men, including the decedent, Danny Lopez. Where there is evidence that more than one person attacked the defendant, the charge is too restrictive if it confines the right of self-defense to the acts of the complainant. //

The trial court charged the jury as follows on the law of self-defense:

Upon the law of self-defense, you are instructed that a person is justified in using force against another when and to the degree that he reasonably believes the force is immediately necessary to protect himself against another person or persons use or attempted use of unlawful force.

(Emphasis added).

The application paragraph also instructed the jury that Townzen had the right to defend himself against the unlawful force of Danny Lopez "and/or others." Because the court's charge to the jury did not confine Townzen's right of self-defense to the acts of Lopez, we overrule point of error one.

In point two Townzen contends that the court erred because the charge on provocation only instructed the jury abstractly and did not properly apply the law to the facts of the case. Because a charge on provoking the difficulty is a limitation on the law of self-defense, the charge on provocation should cover the particular facts in evidence and should be so worded to preclude the jury from misapplying it. // Specifically, Townzen complains of the following portion of the court's charge on provoking the difficulty:

On the other hand, if you find from the evidence that the acts done or language used by the defendant, if any, were not, under the circumstances, done with the intent on his, the defendant's, part to produce the occasion and were not reasonably calculated or intended to provoke the difficulty or an attack by deceased upon the defendant, and thereby to allow the defendant to cause serious bodily injury to the decedent, or if you have a reasonable doubt thereof, then in such event . . . you will decide the issue of self defense in accordance with the law on the subject given in other portions of this charge, wholly disregarding and without reference to the law on the subject of provoking the difficulty.

(Emphasis added).

Townzen argues that the disjunctive use of "provoke the difficulty or an attack by deceased," without an adequate definition of "difficulty," permitted the jury to speculate and to be mislead about which "difficulty" was at issue an argument, a cuss-fight, or the physical assault. We note that an identical charge was approved by the Court of Criminal Appeals in Norwood v. State. // Furthermore, the trial court's general instruction on provoking the difficulty contained the following:

You are further instructed as part of the law of this case, and as a qualification of the law on self defense, that the use of force by a defendant against another is not justified if the defendant provoked the other's use or attempted use of unlawful force.

For provokation [sic] to be sufficient to qualify the right of self defense the words and acts must be such as was reasonbly [sic] calculated, on the part of the defendant, to provoke a difficulty of the nature that ensued. It would not be sufficient if such words and acts were innocuous and not reasonably calculated to produce a difficulty or if such provokation was done innocently or unknowingly.

(Emphasis added).

The court's instructions expressly directed the jury's attention to the difficulty that ensued in this case. We find that, in light of the entire charge, the instructions on provoking the difficulty were not worded in such a manner as to mislead the jury. Therefore, we overrule point of error two.

In point three Townzen contends that the court erred in admitting evidence of extraneous misconduct. During the guilt-innocence phase of the trial, the prosecutor offered the testimony of five witnesses regarding Townzen's extraneous misconduct, including several fights with other individuals earlier on the evening of the confrontation with Lopez. The prosecutor also introduced Townzen's testimony from a previous trial as well as subjecting him to cross-examination at this trial regarding his extraneous misconduct.

Finding a piece of evidence "relevant" is the first step in a trial court's determination of whether the evidence should be admitted before the jury because "[a]ll relevant evidence is admissible . . . . Evidence which is not relevant is not admissible." // "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. // In deciding whether a particular piece of evidence is relevant, a trial court should ask, "would a reasonable person, with some experience in the real world believe that the particular piece of evidence is helpful in determining the truth or falsity of any fact that is of consequence to the lawsuit." // The State argues that the evidence of Townzen's extraneous misconduct was relevant to its provocation theory. Specifically, the testimony reveals that Townzen went to a dance earlier that evening anticipating a fight and that after he was beaten in at least one fight his wife called him a coward, to which he reacted violently. At trial the State attempted to defeat Townzen's self-defense argument by showing that he had been on a rampage all evening and that he provoked a confrontation with Lopez to prove to his wife that he was not a coward.

The State offered the evidence of Townzen's prior conduct to show "the condition of the mind of the accused at the time of the offense." // The State also asserted that the evidence was admissible to show the intent and motive of the accused. // The trial court overruled Townzen's objection and agreed to instruct the jury to consider the testimony for the limited purposes of showing the condition of the mind of the accused at the time of the offense as well as his motive and intent. //

Under the rules of evidence, once the proponent of an item of evidence shows that the evidence is logically relevant to some issue in the trial under Rule 401, it is admissible under Rule 402 unless the opponent of the evidence demonstrates that is should be excluded because of some other provision, whether constitutional, statutory, or evidentiary. // Rule 404(b) is such a provision:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided, upon timely request by the accused, reasonable notice is given in advance of trial of intent to introduce in the State's case in chief such evidence other than that arising in the same transaction. //

(Emphasis added).

Rule 404(b) expressly provides an exception for evidence offered to prove motive and intent. Because the evidence was relevant to the State's provocation theory and was admissible as an "exception" under Rule 404(b), we must now determine "whether the danger of unfair prejudice outweighs the probative value," assuming that issue was properly preserved. //

Rule 403 favors admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial. // As a result, the opponent of the evidence must ask the trial court to exclude the evidence on the ground that its probative value, assuming it is relevant apart from character conformity, is nevertheless substantially outweighed by the danger of unfair prejudice. // When Townzen objected under Rule 403, the trial court asked the State to articulate its need for the evidence. Again the State argued that the probative value of the evidence was to show Townzen's state of mind, as well as his motive and intent. Furthermore, the prosecutor noted that he had no objection to an instruction limiting the jury's consideration of the evidence to the purposes for which it was admitted.

We review the trial court's decision to admit evidence under Rule 403 by an abuse of discretion standard. // Where relevant criteria, viewed as objectively as possible, lead to the conclusion that the danger of unfair prejudice substantially outweighed the probative value of the proffered evidence, the appellate court should declare that the trial court erred in failing to exclude it. // Relevant criteria include: that the ultimate issue was not seriously contested by the opponent; that the State had other convincing evidence to establish the ultimate issue to which the extraneous misconduct was relevant; that the probative value of the misconduct evidence was not, either alone or in combination, particularly compelling; that the misconduct was of such a nature that a jury instruction to disregard it for any but its proffered purpose would not likely have been efficacious. //

In this case, Townzen threw his state of mind, as well as his motive and intent, into issue by arguing that he acted in self-defense. Evidence of his extraneous misconduct, especially from the two witnesses who testified that Townzen had fought with them earlier that evening, was particularly compelling to show that he had been on a rampage all evening. In addition, Townzen's reaction to being called a coward after losing a previous fight was particularly compelling to show that he provoked the confrontation with Lopez. Furthermore, Townzen's extraneous misconduct was not of such a nature that it was inherently inflammatory. Instead, it was more probative of Townzen's state of mind at the time of the offense than of his moral character. Because the trial court did not abuse its discretion in admitting the evidence of Townzen's extraneous conduct, we overrule point of error three.

In point four Townzen contends that the court erred in failing to receive the verdict originally returned by the jury during the punishment phase of the trial. The court's charge instructed the jury that it could recommend probation if the punishment did not exceed ten years in prison. Although the jury assessed punishment at twelve years in prison and a $10,000 fine, it recommended probation of the fine. As a result, the trial court instructed the jury to reconsider its verdict. The jury then returned a verdict assessing punishment at twelve years in prison and a $5000 fine.

Townzen argues that article 37.10 of the Texas Code of Criminal Procedure requires the court to omit the probated $10,000 fine because it was not authorized by law. // The trial court, however, can instruct a jury to retire to reconsider the verdict if it does not comply with the charge, the indictment, or the applicable statute. // Because the jury's original verdict did not conform to the charge or to article 42.12, section 4(a), of the Code of Criminal Procedure, the trial court properly instructed the jury to reconsider its verdict. // Therefore, we overrule point of error four.

We affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed June 16, 1993

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