Marc Anthony Brown v. The State of Texas--Appeal from 147th District Court of Travis County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00425-CR
Marc Anthony Brown, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 0935295, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING

PER CURIAM

 

A jury found appellant guilty of murder. Penal Code, 63d Leg., R.S., ch. 399, sec. 1, 19.02, 1973 Tex. Gen. Laws 883, 913, amended by Act of May 28, 1973, 63d Leg., R.S., ch. 426, art. 2, 1, 1973 Tex. Gen. Laws 1122, 1123 (Tex. Penal Code Ann. 19.02, since amended). The jury assessed punishment at imprisonment for fifty-seven years.

Appellant does not question the sufficiency of the evidence to sustain the conviction, but he does contend the district court erred by refusing to instruct the jury on the lesser included offense of voluntary manslaughter. Appellant also contends the court gave an improper supplemental charge and erroneously overruled appellant's motion for new trial. We will affirm.

Appellant and the deceased, Edrick Hill, were drug dealers. Hill believed that appellant had been encroaching on Hill's sales territory. In his testimony, appellant described past encounters with the deceased in which Hill pointed a gun at him and threatened to kill him if he continued to sell drugs in Hill's area. Appellant testified that he was afraid of Hill and purchased a pistol to protect himself from Hill.

On the afternoon of April 7, 1993, Hill and appellant had a confrontation at the corner of Walnut and Manor in Austin. Hill told appellant that he was not allowed to sell drugs at that location. Appellant testified that he told Hill he had only a few rocks of crack cocaine left and asked if he could sell them. Hill said no and then:

 

A Then he raised up his hands about in this motion and said, what did I tell you before. He started reaching for his shirt and pulled up his shirt and was reaching in his waist and pulling out a gun.

 

Q And what happened after that?

 

A Then after that when I seen him reaching and pulling out his gun, I pulled out mine and shot him first.

 

. . .

 

Q What did you see Edrick Hill doing after you shot him the first time?

 

A After I shot him the first time, I seen him grab his stomach and bend over and trying to pull from up underneath his shirt still his gun, and then I had -- was about to run, but when I was in the process of running, I was on the side of him and I shot again.

 

Other witnesses to the incident confirmed that Hill and appellant argued over appellant selling drugs at this particular location. Goldia Earls testified:

 

A What I can remember, Marc [sic] asked him what the big deal was of why he was trying to make such a fuss about him selling up there when everyone sells, there was no one's name written on any ground . . . .

 

. . .

 

After that, Marc said -- asked him, you know, was that the end of it or what. Edrick asked him if he was going to have to go get his posse or his gang to try to help him along or what. Marc told him, no, he didn't need them.

 

Q And what happened next?

 

A That was when he pulled the gun out.

 

Q Who pulled the gun out?

 

A Marc.

 

. . .

 

Q And when Marc pulled the gun, what did Edrick do?

 

A He stood there.

 

Q Did he have his arms still crossed or down or was he doing something else with them?

 

A From what I remember, his hands was at his side.

 

Q Okay. When Marc pulled the gun, what did he do with it?

 

A He put it to his temple of his head.

 

Q To whose head?

 

. . .

 

A To Edrick's, and gave a push motion with the gun.

 

. . .

 

Q And then what happened?

 

A Edrick stumbled, stepped back one step. Marc pulled the gun, shot him in the abdomen. . . .

 

. . .

 

Q Did Edrick fall down when he was shot?

 

A He grabbed his abdomen and he stumbled over toward -- closer toward the street, and he was going down this way and he went to the ground, eased to the ground.

 

. . .

 

Q What happens next?

 

A As I approached him, I was going to kneel down to him to see if I could comfort him somehow. Marc walked up to me, pushed me back with this motion. I moved back this way, and Marc put the gun to his head right here and he shot him twice in the head.

 

Another witness to the shooting, Barbara Jackson, testified:

 

A Well, I heard Edrick tell Marc that he couldn't sell there because that was his territory and Marc said that he didn't know there was any territories around, that he was going to sell there if he wanted to.

 

. . .

 

Q All right. Did you hear him say anything else?

 

A I heard Edrick say, well, if he sold any here, he wasn't going to sell no more, that he would see to it.

 

. . .

 

Q Do you know -- tell the jury, please, describe for the jury exactly what happened immediately before the gun was pulled out and as the gun was pulled out, to your knowledge and recollection.

 

A Well. okay. What happened, they were arguing, and then Edrick turned around like he was getting ready to go, halfway turned, and that is when Marc pulled a gun out and shot him in the stomach.

 

Q Okay. And when he shot him in the stomach, what happened?

 

A He fell down. He grabbed his stomach and he fell down. And then Marc, he pushed Goldia a little bit out of the way and he leaned over and shot him twice in the head.

 

Q Now, did you see Edrick pull anything out of his waistband or anywhere?

 

A No. Nowhere that I saw at all, he didn't pull nothing out.

 

At the time appellant shot Hill, a person committed voluntary manslaughter if he caused the death of an individual under circumstances that would constitute murder, except that he caused the death under the immediate influence of sudden passion arising from an adequate cause. Penal Code, 63d Leg., R.S., ch. 399, sec. 1, 19.03, 1973 Tex. Gen. Laws 883, 913, amended by Act of May 28, 1973, 63d Leg., R.S., ch. 426, art. 2, 1, 1973 Tex. Gen. Laws 1122, 1124 (Tex. Penal Code Ann. 19.04(a), since amended). "Sudden passion" means passion directly caused by and arising out of provocation by the deceased occurring at the time of the offense. Sec. 19.04(b). "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. Sec. 19.04(c). A defendant is entitled to a voluntary manslaughter instruction if there is any evidence, however weak or implausible, that could support a rational jury finding that he acted under the immediate influence of sudden passion arising from an adequate cause. Gold v. State, 736 S.W.2d 685, 688 (Tex. Crim. App. 1987).

The district court instructed the jury on the use of deadly force in self-defense. When the evidence raises self-defense, before it may be said that it also raises voluntary manslaughter, there must be some additional showing, apart from the circumstances themselves, that appellant was in fact enraged, resentful, or terrified. Brunson v. State, 764 S.W.2d 888, 895 (Tex. App.--Austin 1989, pet. ref'd).

Appellant relies on the opinion in Liveoak v. State, 717 S.W.2d 691, 698-99 (Tex. App.--San Antonio 1986), pet. ref'd, 741 S.W.2d 451 (Tex. Crim. App. 1987). The issue in that case was whether the evidence supported the defendant's conviction for voluntary manslaughter. There was evidence that the victim had a reputation for violence and had threatened the defendant on other occasions. On the day of the offense, the victim "verbal[ly] castigat[ed] and threat[ened]" the defendant. Later, the victim grabbed the defendant by the head, lifted him off the ground, and threw him against his car. He began to choke the defendant and threatened to kill him. The defendant testified that he then shot the victim to save his own life. The court of appeals held this evidence was sufficient to sustain a jury finding of sudden passion arising from adequate cause.

The State refers us to the opinion in Gonzales v. State, 717 S.W.2d 355, 356-58 (Tex. Crim. App. 1986). The evidence in that case indicated that the defendant witnessed a confrontation in a nightclub between his friend and the victim. The defendant left the club and waited for his friend in the friend's car. The victim also left the club, walked to his own car, and retrieved something from the trunk. The defendant picked up his friend's pistol, got out of the car, and began to walk away. The victim came up behind him and fired a shot. The defendant turned and shot the victim. The defendant indicated that he had been scared of the victim. The court held that this evidence did not entitle the defendant to an instruction on voluntary manslaughter.

Taking appellant's testimony at face value, there is some evidence in this cause that Hill had previously threatened and assaulted appellant, and that he was reaching for a gun when appellant shot him. But appellant also testified, "I wasn't the one that was upset. I was more like I was scared at the time and terrified for my life that he would try to kill me. I was trying to reason with him instead of having an argument with him." A claim of fear does not raise an issue of sudden passion arising from adequate cause unless it rises to the level of terror sufficient to render the mind incapable of cool reflection. Gonzales, 717 S.W.2d at 357. By his own account, appellant was afraid of Hill but also trying to reason with him. Such a claim is inconsistent with a finding that appellant was incapable of cool reflection.

Considered as a whole, the evidence would not support a rational jury finding that appellant shot Hill in a fit of sudden passion arising from an adequate cause. The district court did not err by instructing the jury on self-defense but refusing to instruct on voluntary manslaughter. Point of error one is overruled.

After the jury reported that it was deadlocked, the district court gave the following supplemental instruction over appellant's objection:

 

You are instructed that in a large proportion of the cases absolute certainty cannot be expected. Although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of other jurors, each juror should show a proper regard to the opinion of each other.

 

You should listen, with an open mind, to the arguments of the other jurors. If a large number of jurors are for deciding the case one way, those in the minority should consider whether they are basing their opinion on speculation or surmise and not on the evidence in the case, keeping in mind the impression the evidence has made on a majority of the jurors of equal honesty and intellect as the minority.

 

Bear in mind also that if you do not reach a verdict in this case that a mistrial will be granted and that the case can be tried again to a different jury, but that the next jury will be in no better position to decide the case than you.

 

Therefore, you are instructed that it is your duty to decide the case if you can conscientiously do so. You will now retire and continue your deliberations.

 

In his second point of error, appellant urges that this instruction failed to tell the jurors that they should individually decide the case on the basis of the evidence and not surrender their honest convictions unless convinced of their error by fellow jurors, and thus tended to coerce the jurors in the minority into yielding to the views of the majority.

Appellant's argument is refuted by a reading of the instruction. The district court advised the jurors that "the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of other jurors." The court further instructed the jurors to reach a verdict "if you can conscientiously do so." Such language was sufficient to dispel any notion that the jurors in the minority should defer uncritically to the views of the majority.

The challenged instruction is similar to that approved by the Supreme Court in Allen v. United States, 164 U.S. 492, 501-02 (1896). It is also similar to "dynamite charges" approved in other cases. Calicult v. State, 503 S.W.2d 574, 575-76 (Tex. Crim. App. 1974); Arrevalo v. State, 489 S.W.2d 569, 571 (Tex. Crim. App. 1973); Boyd v. State, 644 S.W.2d 857, 858 (Tex. App.--Tyler 1982, no pet.). It is virtually identical to the charge recommended in a leading form book. 8 Michael J. McCormick, Thomas D. Blackwell, & Betty Blackwell, Criminal Forms & Trial Manual 96.31 (Texas Practice 10th ed. 1995). Point of error two is overruled.

Finally, appellant contends the district court should have granted his motion for new trial on the grounds that the jury received other evidence and engaged in misconduct during its punishment deliberations. Tex. R. App. P. 30(b)(7), (8). Specifically, appellant urges that the jury improperly considered the law of parole in assessing punishment.

Appellant acknowledges that the present test for reversible error based on the jury's discussion of parole is that set forth in Sneed v. State, 670 S.W.2d 262, 266 (Tex. Crim. App. 1984). Under Sneed, the defendant must prove each of the following: (1) a misstatement of the law, (2) asserted as a fact, (3) by one professing to know the law, (4) which is relied on by other jurors, (5) who for that reason change their vote to a harsher punishment. Appellant makes no effort to demonstrate that he met the burden imposed on him by Sneed, and our review of the testimony at the new trial hearing discloses that he did not. Instead, appellant argues that Sneed has been rendered obsolete by the enactment of the statutory instruction on the law of good time and parole. Tex. Code Crim. Proc. Ann. art. 37.07, 4 (West Supp. 1995). Appellant urges us to abandon Sneed and to adopt the test proposed by the plurality opinion in Munroe v. State, 637 S.W.2d 475, 478 (Tex. Crim. App. 1982): any discussion of parole constitutes jury misconduct and reversal is required if a single juror votes for a harsher punishment as a result of the discussion.

The Court of Criminal Appeals has stated that "the test adopted in Sneed is still a viable means of determining whether a jury's discussion of parole law constitutes reversible error." Buentello v. State, 826 S.W.2d 610, 614 (Tex. Crim. App. 1992). As an intermediate appellate court, we are not at liberty to disregard the pertinent opinions of the Court of Criminal Appeals. Relying on Buentello, we recently applied the Sneed test in overruling a point of error complaining of a jury's consideration of parole and good conduct time in assessing punishment. Valdez v. State, 893 S.W.2d 721 (Tex. App.--Austin 1995, pet. ref'd). Because there is no evidence that a juror voted for a harsher punishment in reliance on a misstatement of the law of parole asserted as fact by another juror who professed to know that law, we overrule points of error three and four.

The judgment of conviction is affirmed.

 

Before Justices Powers, Kidd and B. A. Smith

Affirmed

Filed: September 13, 1995

Do Not Publish

re, you are instructed that it is your duty to decide the case if you can conscientiously do so. You will now retire and continue your deliberations.

In his second point of error, appellant urges that this instruction failed to tell the jurors that they should individually decide the case on the basis of the evidence and not surrender their honest convictions unless convinced of their error by fellow jurors, and thus tended to coerce the jurors in the minority into yielding to the views of the majority.

Appellant's argument is refuted by a reading of the instruction. The district court advised the jurors that "the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of other jurors." The court further instructed the jurors to reach a verdict "if you can conscientiously do so." Such language was sufficient to dispel any notion that the jurors in the minority should defer uncritically to the views of the majority.

The challenged instruction is similar to that approved by the Supreme Court in Allen v. United States, 164 U.S. 492, 501-02 (1896). It is also similar to "dynamite charges" approved in other cases. Calicult v. State, 503 S.W.2d 574, 575-76 (Tex. Crim. App. 1974); Arrevalo v. State, 489 S.W.2d 569, 571 (Tex. Crim. App. 1973); Boyd v. State, 644 S.W.2d 857, 858 (Tex. App.--Tyler 1982, no pet.). It is virtually identical to the charge recommended in a leading form book. 8 Michael J. McCormick, Thomas D. Blackwell, & Betty Blackwell, Criminal Forms & Trial Manual 96.31 (Texas Practice 10th ed. 1995). Point of error two is overruled.

Finally, appellant contends the district court should have granted his motion for new trial on the grounds that the jury received other evidence and engaged in misconduct during its punishment deliberations. Tex. R. App. P. 30(b)(7), (8). Specifically, appellant urges that the jury improperly considered the law of parole in assessing punishment.

Appellant acknowledges that the present test for reversible error based on the jury's discussion of parole is that set forth in Sneed v. State, 670 S.W.2d 262, 266 (Tex. Crim. App. 1984). Under Sneed, the defendant must prove each of the following: (1) a misstatement of the law, (2) asserted as a fact, (3) by one professing to know the law, (4) which is relied on by other jurors, (5) who for that reason change their vote to a harsher punishment. Appellant makes no effort to demonstrate that he met the burden imposed on him by Sneed, an