Abbott v. State

751 S.W.2d 305, 1988 Tex. App. LEXIS 1473, 1988 WL 63110
Court of Appeals of Texas·Decided May 25, 1988·No. No. 04-87-00155-CR·Published·Cited by 2 cases

Opinion

OPINION

ESQUIVEL, Justice.

This is an appeal from a conviction of capital murder. Appellant, Tammi Abbott, was found guilty by a jury. After the jury answered the special issues on punishment in the negative, the trial court sentenced appellant to life imprisonment. This appeal resulted. We reverse.

Appellant raises six points of error.

[306]*306By points of error five and six appellant challenges the sufficiency of the evidence. The standard for reviewing sufficiency of the evidence requires us to examine the evidence in the light most favorable to the prosecution and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Dickey v. State, 693 S.W.2d 386, 387 (Tex.Crim.App.1984).

Appellant was charged with and convicted of causing the death of Keith Nordyke by strangling him with a wire or stabbing him with a knife, and causing the death of Jean Nordyke by stabbing her with a knife, either acting alone or as a party with Federico Rivera, while in the course of committing or attempting to commit the offense of robbery of the Nor-dykes. See TEX.PENAL CODE ANN. § 19.03(a)(2) (Vernon Supp.1988) and § 7.02(a)(2), (b) (Vernon 1974).

Appellant contends that no rational trier of fact could have found that appellant, either acting alone or as a party with Rivera, caused the deaths of the Nordykes.

The evidence viewed in the light most favorable to the prosecution established the following: Appellant and Rivera agreed to rob the Nordykes. Appellant and Rivera lured the Nordykes into the Nordykes’ van. Rivera had concealed a large butcher knife on his person, and appellant had a small knife and rope in her purse. Rivera brandished his knife and ordered Mr. Nordyke to stop the van on a dirt road. Appellant tied up the Nordykes. Mr. Nordyke was stabbed with a knife and strangled with a wire. Mrs. Nordyke was stabbed with a knife. The stab wounds were caused by the small knife. As a result, the Nordykes died. Appellant drove the van from the scene. She was arrested in Ohio for using Mrs. Nordyke’s credit card.

In determining whether one participated as a party in committing an offense, the fact finder may look to events occurring before, during, and after the offense, and reliance may be placed on actions which show an understanding and common design to do a certain act. Santana v. State, 714 S.W.2d 1, 6 (Tex.Crim.App.1986).

In the instant case a rational trier of fact could have found appellant was criminally responsible either acting alone or as a party under § 7.02. Appellant’s fifth and sixth points of error are overruled.

By points of error one and two appellant contends the jury was incorrectly instructed on the mens rea of the offense. Appellant argues that the trial court erred in not submitting appellant’s requested instruction on capital murder and in instructing the jury that capital murder under § 19.03(a)(2) includes the culpable mental state of “knowingly.”

Initially, the State claims that appellant did not preserve error. We disagree.

Prior to submission of the charge to the jury, appellant requested in writing several instructions, one of which stated, “A person commits capital murder if he intentionally causes the death of an individual while in the course of committing, or attempting to commit, the offense of robbery.” The trial court indicated on the written request that it was granted. Also prior to the reading of the charge to the jury, the trial court asked appellant’s counsel if appellant had any objections to the charge. Appellant raised objections, none of which concerned the culpable mental state of capital murder.

TEX.CODE CRIM.PROC.ANN. art. 36.-15 (Vernon Supp.1988) provides:

... The defendant may, by a special requested instruction, call the trial court’s attention to error in the charge, as well as omissions therefrom, and no other exception or objection to the court’s charge shall be necessary to preserve any error reflected by any special requested instruction which the trial court refuses.
Any special requested charge which is granted shall be incorporated in the main charge and shall be treated as a part thereof....
When the defendant has leveled objections to the charge or has requested instructions or both, and the court there[307]*307after modifies his charge and rewrites the same and in so doing does not respond to objections or requested charges, or any of them, then the objections or requested charges shall not be deemed to have been waived by the party making or requesting the same, but shall be deemed to have been urged by the party making or requesting the same unless the contrary is shown by the record; no exception by the defendant to the action of the court shall be necessary or required in order to preserve for review the error claimed in the charge.

Appellant’s requested instruction preserved the alleged error. See Rasmussen v. State, 608 S.W.2d 205, 208 (Tex.Crim. App.1980).

Turning to the merits of appellant’s first and second points of error, the following paragraphs were included in the jury charge (all emphases added):

1.
A person commits murder when he intentionally or knowingly causes the death of an individual.
2.
Our law provides that a person commits capital murder when such person intentionally or knowingly causes the death of another person while such person is in the course of committing or attempting to commit the offense of robbery.
******
9.
Before you would be warranted in convicting the defendant, Tammi Abbott, a/k/a Tammi Rivera Abbott, of capital murder, you must find from the evidence beyond a reasonable doubt not only that on the occasion in question the defendant, Tammi Abbott, a/k/a Tammi Rivera Abbott, either acting alone or as party with Federico Rivera, was engaged in the commission or attempted commission of the felony offense of robbery, if any, of Keith Nordyke and Jean Nordyke, as defined in this charge, but also that during the commission of the felony offense of robbery or attempted commission thereof, if any, the Defendant, Tammi Abbott, a/k/a Tammi Rivera Abbott, either acting alone or as a party with Federico Rivera, intentionally or knowingly strangled with a wire or stabbed with a knife Keith Nordyke and stabbed with a knife Jean Nordyke with the intention of causing the death of both.
Unless you find from the evidence beyond a reasonable doubt that the Defendant, Tammi Abbott, a/k/a Tammi Rivera Abbott, acting alone or as a party with Federico Rivera, on the occasion in question, specifically intended to kill

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Abbott v. State, 751 S.W.2d 305, 1988 Tex. App. LEXIS 1473, 1988 WL 63110 (Tex. Ct. App. 1988).

751 S.W.2d 305 (Abbott v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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