Giesberg v. State

984 S.W.2d 245, 1998 Tex. Crim. App. LEXIS 123, 1998 WL 670415

• Court: Court of Criminal Appeals of Texas
• Decided: September 30, 1998
• Docket: 696-97
• Status: Published

Opinions

OPINION ON APPELLANTS PETITION FOR DISCRETIONARY REVIEW

HOLLAND, Judge,

delivered the opinion of the Court

in which MeCORMICK, Presiding Judge, KELLER, PRICE and WOMACK, Judges, joined.

A jury convicted appellant for the murder of Ramon Montes and sentenced appellant to 65 years confinement in the Texas Department of Criminal Justice — Institutional Division. See TEX. PENAL CODE ANN. § 19.02(b)(1) & (2). The trial court made an affirmative finding in the judgment that appellant used a deadly weapon in the commission of the murder. Appellant appealed his conviction to the First Court of Appeals.

The First Court of Appeals affirmed the trial court’s judgment. Giesberg v. State, 945 S.W.2d 120 (Tex.App. — Houston [1st Dist.] 1997). Appellant petitioned this Court to review the decision of the First Court of Appeals. This Court granted review on the second ground for review raised by appellant in his petition:

“Whether the Court of Appeals erred in holding that the trial court did not err in denying appellant’s request for a jury instruction on the defensive theory of alibi after the evidence fairly raised the issue.”

This Court affirms the judgment of the First Court of Appeals.

On July 12, 1990, appellant murdered Ramon Montes, the husband of his sister, by stabbing Montes in the abdomen and severely burning Montes. Testimony at trial established that appellant was seen on July 12th standing over the body of Montes on the balcony of Montes’ apartment. Prior to July 12th, Montes allegedly severely beat appellant’s sister, provoking appellant’s anger. In the defense’s case-in-chief, appellant presented evidence that on the evening of the murder he was drinking with friends at Valhalla, a bar for Rice University graduate students. After the close of evidence at the guilt / innocence stage, appellant requested that the trial court instruct the jury on his defensive theory of alibi:

“Additionally, the defense would request the following: The defense — a defense set up by the defendant in this case is what is known as an alibi at the time of the killing, the defendant was at another and different place, was not and could not have been the person who committed the offense. If you have a reasonable doubt as to the presence of the defendant at the place where the offense was committed at the time the offense was committed, then you will find the defendant not guilty.”

Appellant based his request on two defensive theories. Both theories rested on the State’s proof that the murder of Montes occurred in the late afternoon. First, appellant offered testimony from his boss that appellant left work between 4:00 and 5:00 p.m. to make some deliveries. Though conceding the State’s evidence from an investigating officer that the recipients of the deliveries claimed no deliveries were made, appellant produced evidence “of one of the deliveries being made having a file stamp of the date of the offense.” Appellant’s first theory is, essentially, that he was making deliveries at the time of the murder. Second, appellant offered proof to the jury that he arrived at the Valhalla Bar to meet his friends at 6:30 p.m. Though one of his friends testified that appellant was supposed to have been there at 5:30, they all supported his claim that he was there by 6:30. Appellant argued to the trial court it would have been impossible for him to murder Montes, be seen around the scene of the murder, and be at the Valhalla Bar by 6:30 p.m. Appellant’s trial counsel contended this created a reasonable doubt “as to whether or not he was present at the scene, cleaned up, and arrived there [the Valhalla Bar].” Taken together, appellant argued to the trial court, this “creates some evidence, may suggest some evidence of alibi.” The trial court denied appellant’s request for an instruction on alibi.

On direct appeal, appellant argued the “trial court erred in denying appellant’s request for a jury instruction on the defensive issue of alibi after the evidence fairly raised the issue.” The First Court of Appeals conceded that a defendant is “entitled to a jury instruction on every defensive issue raised by the evidence.” Giesberg v. State, 945 S.W.2d at 124; and cases cited therein. But, the First Court went on to explain that alibi evidence merely negates an element of the offense. Because the alibi evidence generally focuses on disproving the presence of a defendant at the place and time of the crime, which is an essential element of the State’s case, the First Court of Appeals overruled appellant’s point of error. Id., 945 S.W.2d at 124.

In his petition and brief before this Court, appellant argues the jury should have been instructed on his alibi defense. He contends the adoption of the Model Penal Code in Texas, and its system for codifying the defenses and affirmative defenses available for defendants, did not eliminate his entitlement to a separate special instruction on the defense of alibi when it is raised by the evidence. Appellant points out the appellate courts of this State are divided over this issue. Some Courts of Appeal agreed with the First Court in this case that a defendant is not entitled to an instruction on the defense of alibi because it merely negates an essential element of the State’s case. Holliman v. State, 879 S.W.2d 85, 87 (Tex.App.— Houston [14th Dist.] 1994, no pet.); and Villarreal v. State, 821 S.W.2d 682, 684-686 (Tex.App. — San Antonio 1991, no pet.). Others have stated that a defendant is entitled to an instruction on alibi when that defense is raised by the evidence. Rogers v. State, 662 S.W.2d 13, 18-19 (Tex.App. — Tyler 1983, pet. ref'd)(“A charge on alibi need not be given unless the evidence is inconsistent with the State’s case which puts the defendant at the scene at the time of the commission of the offense.”); Byers v. State, 641 S.W.2d 629, 634 (Tex.App. — Tyler 1982, no pet.); and Gates v. State, 628 S.W.2d 125, 126 (Tex.App. — Beaumont 1981, no pet.). We granted review to resolve this disagreement and to decide whether a defendant in this State is entitled to a jury instruction on alibi when it is raised by the evidence.

This Court concludes appellant was not entitled to an instruction on his defensive issue of alibi. We reach this conclusion because we find the defensive issue of alibi constitutes no more than a negation of an essential element of the State’s burden of proof; specifically, that appellant committed the offense at the alleged time and location. We also base this conclusion upon the fact the Legislature has not made alibi a defense or an affirmative defense.

I. The Law of Alibi Before the 1973 Revision of the Penal Code.

Prior to the 1973 reformation of the Penal Code and adoption of the new Penal Code, see Act of May 23, 1973, 63d Leg., R.S., Ch. 399, 1973 Tex.Gen.Laws 883-996 (effective January 1, 1974), alibi was recognized as a defense which justified an instruction to the jury when it was raised by the evidence at trial. In Funk v. State, 84 Tex.Crim. 402, 208 S.W. 509, 513-14 (1919), the trial court charged the jury on the law of alibi, the law of principals¹ and circumstantial evidence. The defendant complained the instruction on the law of principals was erroneous because the defense of alibi had arisen. This Court concluded the instruction on the law of alibi had not been required. “The defense of alibi arises where there is evidence that appellant is at a point where he could not have been guilty of participating in the offense.” Funk, 208 S.W. at 514. Because the State pursued the theory that the defendant was guilty as a party to the offense, making proof of his presence at the scene unnecessary, this Court concluded the trial court was not required to give an instruction on the defense of alibi. Id.See also, West v. State, 140 Tex.Crim. 493, 145 S.W.2d 580, 588 (1940)(on rehearing)(wherein this Court concluded the defense of alibi arises only when evidence shows a defendant is at a point where he could not have been found guilty of participating in the offense).

In Anderson v. State, 147 Tex.Crim. 410, 181 S.W.2d 78, 79-80 (1944), this Court discussed the burden a defendant bears in proving a defense so as to receive a jury instruction on the defense of alibi. The defendant in Anderson sought as a defense that she qualified for one of the exceptions to the proscriptions against transporting liquor within the State. This Court stated, “it is not a new thing in the criminal procedure that the party on trial may be required to assume the burden of proof of his own defense.” Id. at 79. Comparing the defendant’s case to a case where a defendant is charged with murder and has the burden to prove the defense of alibi, this Court recognized that once a defendant has met his burden by creating a reasonable doubt in the minds of the jury, the trial court should give a proper charge on the defense of alibi in order to comply with a reasonable construction of the law. Anderson v. State, 181 S.W.2d at 79-80.

In Friga v. State, 488 S.W.2d 430, 434 (Tex.Crim.App.1973), this Court found the evidence did not sufficiently raise the defense of alibi and, consequently, that an instruction to the jury on alibi was not necessary. In Nelson v. State, 511 S.W.2d 18, 21 (Tex.Crim. App.1974), where the defendant was prosecuted for a 1971 murder, this Court concluded, “the defense of alibi arises when there is evidence that the accused is at a point where he could not have been guilty of participating in the offense.” As can be seen from these cases, the law which predated the enactment of the 1974 revisions to the Penal Code provided that a defendant was entitled to an instruction on the defense of alibi when that defense was raised by the evidence.

II. The Law of Alibi After the 1973 Revision of the Penal Code.

The revised Penal Code was in effect at the time of the commission of the 1976 robbery which was the subject of the appeal in Arney v. State, 580 S.W.2d 836, 840 (Tex.Crim.App.1979). In Amey, the defendant argued the trial court erred when it refused “his requested jury instruction on the defense of alibi.” Id. However, this Court did not address the revisions in the Penal Code and their effect on the defendant’s request for a jury instruction on alibi. This Court concluded a defendant is entitled to a charge on alibi when the evidence raises the issue that the defendant was in a place where he could not have been found guilty of participating in the offense. Arney v. State, 580 . In reaching this conclusion, this Court relied upon authorities which predated the 1973 revisions in the Penal Code.

We conclude this Court erred in Arney when it did not address the revisions in the Penal Code. The decision in Amey, where it presumed that the older common-law rules on the defense of alibi were still controlling, was in error. After examining the plain language of the 1973 revisions to the Penal Code that became effective in 1974, this Court now concludes that criminal defendants were no longer entitled to a jury instruction on the defensive issue of alibi.

When the new Penal Code was adopted, the Legislature chose not to designate alibi as a statutory defense. In the Texas Penal Code, alibi is not enumerated either as a defense or as an affirmative defense. See TEX. PENAL CODE ANN. §§ 2.03 and 2.04; Chapters Eight and Nine.² In the revised Penal Code, the statutory defense distinction is reserved for defensive theories involving a defendant’s admission that he or she committed the crime, but with explanations to justify a defendant’s actions or absolve a defendant of culpability. It also includes defensive theories which do not involve admission of complicity in the commission of the alleged crime, but which nonetheless attempt to explain why a defendant is not criminally culpable.

This Court discussed these changes in the Penal Code in addition to the defense of alibi in Miller v. State, 660 S.W.2d 95, 96 (Tex.Crim.App.1983). In Miller, the trial court chose to instruct the jury on alibi as a defense. However, the defendant in Miller requested an instruction on alibi as an affirmative defense.³ The trial court refused that request. This Court faced the question of whether a defendant was entitled to an instruction on alibi as an affirmative defense to prosecution. Judge Miller, writing for this Court, pointed that under the 1974 revisions to the Penal Code, statutory affirmative defenses apply to justify a defendant’s participation in a crime. This Court explained how an alibi was not an attempt to justify participation in a crime, but to “disprove one essential factor in the prosecution’s case— namely the presence of the accused at the place and time of the alleged crime.” Miller, 660 S.W.2d at 96. If a defendant wishes to rely upon alibi as his defense, he bears the duty of going forward with evidence raising an alibi in order to create a reasonable doubt of the defendant’s presence at the time and place where the crime was committed. If the defendant’s actual presence at the time and place where the crime was committed is an essential part of the prosecution’s case, the State must prove the defendant’s actual presence at the scene of the crime beyond a reasonable doubt. Miller, 660 S.W.2d at 96, and authorities cited therein. From this, it can be seen that an alibi can only create a doubt about whether the State has met its burden of proving that a defendant committed the offense where the defendant’s actual presence at the time and place of the commission of the offense is an issue in the State’s case.

This Court’s opinion in Miller v. State draws attention to the fact that alibi is not a special defense, but is instead intended to deny the issues tendered to the jury in the indictment. This explains the Legislature’s failure to designate alibi as a defense or as an affirmative defense. Alibi was excluded from the Revised Penal Code’s list of defenses and affirmative defenses because it only serves to negate a necessary element of proof in the State’s case — the defendant’s presence at the time and location of the commission of the crime. An alibi does not attempt to justify or excuse a defendant’s actions.

Alibi is similar to other defensive issues which also negate an element or elements of the State’s burden of proof, but do not warrant special jury instructions. For example, the defensive issue of good faith purchase bears strong similarities to alibi. In Sanders v. State, 707 S.W.2d 78, 80-81 (Tex.Crim. App.1986), this Court faced whether the defendant was entitled to an affirmative instruction on his defensive issue of “good faith purchase”. The similarities between the defensive issues of alibi and good faith purchase make the Sanders decision, and its progeny, helpful in deciding the issue in this cause. The defendant in Sanders relied on pre-1974 precedent which ruled that defendants were entitled to instructions on “good faith purchase” when that issue was raised by the evidence. This Court began with a discussion of the 1974 changes in the Penal Code.

“This Court has, since the enactment of the new Penal Code, noted that the Penal Code specifically lists “defenses” and that the bench and bar should not use the term “defense” for an issue not so specifically labeled by the Code. ... A perusal of the new Penal Code assures one that a defense does not merely negate an element of an offense.”

Sanders v. State, 707 S.W.2d at 80 — 81. This Court concluded that “one principle runs throughout” all of the Code’s defenses: “evidence which constitutes a defense requires the accused to admit the commission of the offense, but to justify or excuse his actions so as to absolve him of criminal responsibility for engaging in conduct which otherwise constitutes a crime.” This meant for this Court that a statutory defense would consist of facts which exonerated a defendant and did not “simply disprove an element of the offense.” Id. at 81. This Court concluded a defensive theory which does no more than negate an element of the charged offense does not warrant an affirmative instruction to the jury on that defense. Because the defendant’s claim in Sanders that he made a good faith purchase of the stolen property negated his entire participation in the burglary, and did not justify his participation in the burglary, this Court concluded he did not present an affirmative defense which required inclusion in the charge to the jury.

This Court clarified its decision in Sanders in Willis v. State, 790 S.W.2d 307, 314-315 (Tex.Crim.App.1990). In Willis, this Court affirmed its earlier decision that defendants were not entitled to instructions on non-statutory defenses when a statute provides an applicable defense. This Court began by reiterating the rule that the “power to establish and define the defenses to criminal offenses” rests “within the sound discretion of the legislative branch of government.” Id. at 314. The legislature has done so within the Chapter Eight “General Defenses to Criminal Responsibility”, the Chapter Nine justifications for criminal conduct, and within some particular penal provisions which define defenses to conviction for certain offenses. Willis v. State, 790 S.W.2d at 314-315, and note 6, at 315. Because “good faith purchase” was not listed anywhere as a legislative enactment of a defense or affirmative defense, this Court concluded the defendant was not entitled to an instruction on “good faith purchase.” Willis v. State, 790 S.W.2d at 315. On this principle, the decisions in Sanders and Willis were in complete accord.

However, in Willis, this Court revisited one of the holdings in Sanders. In Sanders, this Court made the blanket statement that defenses require the accused to admit that he or she committed the alleged offense, but that conduct was excused or justified in order to absolve them of criminal responsibility. This Court in Sanders concluded that where a defendant denied all participation in an offense, he or she was not entitled to a defensive instruction because they were only negating the allegation they committed the offense. In Willis, this Court concluded the scope of the holding in Sanders that all statutory defenses required an accused to admit commission of the subject offense was too broad. This Court explained that in the course of a defendant advancing the argument that he or she made a good faith purchase of stolen property, the defendant negated an element of the offense of theft (that he or she intentionally or knowingly possessed property they knew to be stolen) without negating the entire offense. In this way the defendant created a defense of mistaken belief as to only the culpable mental state element of theft. In that circumstance, the defendant would be entitled to a defensive instruction on mistake of fact, see TEX. PENAL CODE ANN. § 8.02., and would not be required to admit the other elements of the crime. This Court concluded the Sanders Court “spoke too generally in deciding that all defenses were in the nature of confession and avoidance.” Willis v. State, 790 S.W.2d at 313-314. This conclusion did not adversely impact on this Court’s conclusion in both Sanders and Willis that only the Legislature can establish defenses and affirmative defenses to criminal offenses and that only those defenses and affirmative defenses entitle defendants to defensive and affirmative defensive instructions in jury charges.

Appellant, raises the concern that, if this Court was to conclude he was not entitled to a jury instruction on alibi, the defense of alibi would cease to exist as a viable legal defense in Texas. We disagree. If viability of alibi as a defensive issue is dependent upon placing the issue of alibi before a jury during its deliberations, that viability is not threatened by the absence of a separate jury instruction on alibi like the one requested by appellant in this cause. The defensive issue of alibi involves nothing more than the presentation of evidence and argument that a defendant was not present at the scene of the crime to commit the crime. In other words, it means presenting to the jury the question of whether the defendant did it. This is simply the negation of the State’s allegation that a defendant did then and there upon a certain date and in a certain location commit a certain crime. Miller v. State, 660 S.W.2d at 96.

A defensive issue which goes no further than to merely negate an element of the offense alleged by the State in its indictment does not place a burden of proof upon a defendant to establish it. The burden of proof is upon the State to prove those allegations. An alibi only traverses those allegations and casts doubt upon whether the State has met its burden. As a result, an alibi is sufficiently embraced in a general charge to the jury that the defendant is presumed innocent until he or she is proven guilty beyond a reasonable doubt. There is ample room within that instruction for a defendant to effectively argue his defense of alibi to a jury. Sanders v, State, 707 S.W.2d. at 81. See also, Villarreal v. State, 821 S.W.2d at 684-686, and cases cited therein (wherein former Presiding Judge Onion, assigned, concluded this Court’s decision in Sanders applied to the defensive issue of alibi).

Since a defensive issue of alibi is adequately accounted for within a general charge to the jury, a special instruction for the issue of alibi would needlessly draw a jury’s attention to the evidence which raised alibi. Therefore, we conclude a special instruction on alibi would constitute an unwarranted comment on the weight of the evidence by the trial court. TEX. CODE CRIM. PROC. ANN. art. 36.14 commands that a jury charge should not express an opinion on the weight to be given to any of the evidence. Cf. Hawkins v. State, 656 S.W.2d 70, 73 (Tex.Crim.App.1983)(concluding that an instruction on the defense of good faith would be an improper comment on the weight of the evidence.); Roberson v. State, 852 S.W.2d 508, 511 (Tex.Crim.App.1993); Laws v. State, 549 S.W.2d 738, 740 (Tex.Crim.App.1977)( determining that instructions on mistaken identity would constitute improper comments on the weight of the evidence); and Waller v. State, 581 S.W.2d 483, 483 (Tex.Crim.App.1979)( noting that an instruction on flight to avoid prosecution being indicative of guilt was an improper comment on the weight of the evidence.). This Court concludes that a separate instruction on alibi as a defense would draw unwarranted attention to evidence that appellant was at another place when the crime was committed and would therefore constitute an improper comment on the weight of the evidence.

Furthermore, because the authority to establish what constitutes a defense rests solely with the Legislature, this Court concludes a defense which is not recognized by the Legislature as either a defense or as an affirmative defense does not warrant a separate instruction. Sanders v. State, 707 S.W.2d at 80 — 81. The term defense should not be used for an issue that has not been specifically labeled as such by the Legislature. Williams v. State, 630 S.W.2d, 640, 644 (Tex.Crim.App.1982); Willis v. State, 790 S.W.2d at 315; and Sanders v. State.

Because appellant’s alibi defense involved nothing more than complete negation of his involvement in the commission of the instant offense, this Court concludes appellant was not entitled to a separate jury instruction on his defense of alibi. The Legislature did not include alibi within the enumerated defenses of the Penal Code, or in any other statute, and this Court will not legislate such a change into existence. We conclude the Court of Appeals correctly held the trial court did not err when it denied appellant’s request for a jury instruction on the defensive theory of alibi. Appellant’s ground for review is overruled.

The decision of the Court of Appeals and the judgment of the trial court are affirmed.

BAIRD, J., files a dissenting opinion in which OVERSTREET, J., joins. MANSFIELD, J., files a dissenting opinion. MEYERS, J., dissents.

1 . At that time, an instruction on the law of parties was both an instruction on the law of principals and the law of parties.

2 . The affirmative defenses set out in the Texas Penal Code are insanity (§ 8.01), mistake of law (§ 8.03), and duress (§ 8.05). The defenses set out in the Texas Penal Code are mistake of fact (§ 8.02), entrapment (§ 8.06), and the justifications for conduct set out in Chapter Nine of the Texas Penal Code.

3 . In. Miller v. State, this Court was not called upon to decide if it had been proper for the trial court to instruct the jury on alibi as a defense to prosecution. The only question before this Court in Miller was whether an instruction on alibi as an affirmative defense was proper. Therefore, Miller can not stand as authority for the proposition that defendants are entitled to instructions on alibi as a defense to prosecution.