Jenkins v. State

740 S.W.2d 435, 1987 Tex. Crim. App. LEXIS 693

Opinions

OPINION

TEAGUE, Judge.

On September 13,1978, Robert Paul Jenkins, appellant, reached a plea bargain agreement with a prosecuting attorney of Dallas County concerning the disposition of four felony cases then pending against him in Dallas County. Previously, on July 10, 1978, appellant was tried by a jury for committing one of the four offenses; burglary of a habitation belonging to William J. Amos. He was found guilty and the trial judge assessed punishment at six years’ confinement in the penitentiary. On August 21, 1978, appellant’s motion for new trial was granted. This offense was included in the above plea bargain agreement. The plea bargain agreement consisted of appellant pleading guilty to each of the four felony offenses in exchange for a recommendation from the prosecuting attorney to the trial court that his sentences be probated. Pursuant to the agreement, appellant pled guilty to each of the four charges; two offenses of felony theft of the third degree, (thefts of automobiles), and one offense of burglary of a habitation, which offenses were all committed on December 26, 1977, wherein William J. Amos was alleged to be the complaining witness in all these offenses, and pled guilty to one offense of burglary of a habitation, which was committed on October 14, 1976, wherein Emily Dean Haley was the complaining witness in that cause. Upon recommendation of the prosecuting attorney, the trial court placed appellant on adult probation for a period of ten years. Appellant does not challenge the validity of any of the underlying convictions which resulted in the probations. Because we do not have a transcription of the trial proceedings, we do not pass on the validity of those convictions. See Wolfe v. State, 560 S.W.2d 686 (Tex.Cr.App.1978). On September 26, 1978, the State filed motions to revoke the above probations because the appellant had allegedly violated condition (a) of the probations, which condition mandated that he “Commit no offense against the laws of this or any other State or the United States.” It was alleged in the motions to revoke that on September 23, 1978, appellant had murdered a person by the name of James Timothy Roche, Jr., and had also on the same day attempted to murder a person by the name of Daniel Wood Cas-key. The allegation concerning Caskey was subsequently withdrawn by the prosecution. On February 21, 1979, a jury found appellant guilty of causing the death of Roche, and assessed punishment at 75 years’ confinement in the penitentiary. On February 22, 1979, the trial court entered orders revoking each of the above proba-tions, and assessed punishment on three of the causes at ten years’ confinement in the penitentiary. However, as to the offense for which appellant had been previously assessed six years’ confinement in the penitentiary, the trial judge reduced the ten year sentence he had imposed on September 13, 1978, to six years.

In the appeals from the orders revoking the four probations, appellant raises the same ground of error: “The trial court abused its discretion in revoking Appel lant’s probation, as the cause for revocation of probation was not established by the evidence, i.e., violation of condition ‘a’.” He raises in his appeal from the conviction for causing the death of Roche several unrelated grounds of error. We have consolidated the appeals, and will reverse appellant’s conviction for causing the death of Roche and affirm the orders revoking the probations.

On February 22, 1979, implicitly using the Barrientez v. State, 500 S.W.2d 474 (Tex.Cr.App.1973)—Bradley v. State, 564 S.W.2d 727 (Tex.Cr.App.1978), line of cases, the trial judge took judicial notice of appellant’s trial concerning the death of Roche, and ordered all four probations revoked. With the exception of one sentence, which as noted was reduced to six years, the appellant was ordered to serve ten year sentences in the other three causes, with all sentences to be served concurrently. As previously noted, appellant’s punishment for causing the death of Roche was assessed by the jury at 75 years’ confinement in the penitentiary.

Although appellant does not challenge the sufficiency of the evidence to sustain his conviction for causing the death of Roche, he, nevertheless, challenges the sufficiency of the evidence to sustain the orders revoking the probations. In a probation revocation proceeding, a preponderance of evidence standard is applied and met “when the greater weight of the credible evidence before the court creates a reasonable belief that a condition of probation has been violated as alleged.” Martin v. State, 623 S.W.2d 391, 393, fn. 5 (Tex.Cr.App.1981). Because of appellant’s contention in the probation revocation appeals, we will briefly summarize the facts of the case as adduced at the trial which concerned the death of Roche. Because the respective attorneys for the parties do not appear to be in any great disagreement over the facts, we will combine the various summaries they have presented in their respective briefs in order to make our summary of the facts, except where we believe further facts are necessary for the reader’s understanding of what happened on that eventful night of September 23, 1978, at a location on Highway 183, between the cities of Dallas and Fort Worth, which resulted in the death of Roche. Where we find the facts as set out in the briefs lacking, we will add facts from the record to those stated by the attorneys.

On the evening of September 23, 1978, three students from Texas Christian University in Fort Worth, Tim Roche, Dan Cas-key, and Warren Mackey, decided to go to the City of Dallas, “for some barhopping”. The three went in Caskey’s 1967 Pontiac Firebird, which apparently was a “classic” automobile. Shortly after midnight, after their “barhopping” episode had ended, the three decided to return to Fort Worth, with Caskey driving, Roche riding in the front seat, and Mackey sitting in the backseat. Enroute to Fort Worth, Caskey saw another automobile which was in all things identical to his vehicle. The second Firebird was shown to belong to appellant, but when Cas-key saw the vehicle appellant’s girlfriend, Toni Pratt, was driving it, with appellant riding therein as the sole passenger. Caskey drove his vehicle near the front of appellant’s vehicle. As to what then occurred, the facts are not in agreement. From appellant’s standpoint, the occupants of Cas-key’s vehicle commenced “harassing” Pratt. By Caskey and Mackey’s version of the facts, Roche hollered to appellant and Pratt, and stated what a “good looking” automobile Pratt was driving. Whatever the reason, then commenced what was described by appellant’s counsel in his brief as a bottle-shaving cream throwing, high-speed chase between the respective occupants and their vehicles. Caskey testified that he believed some bottles, which were thrown from appellant’s vehicle, struck his vehicle. He thereafter chased appellant’s vehicle in an attempt to stop it and determine whether his vehicle had been damaged by the thrown bottles. The testimony also showed that a can of shaving cream was tossed from appellant’s vehicle into Caskey’s vehicle, and then tossed back toward appellant’s vehicle. Thereafter, with Caskey’s vehicle trying to “catch” appellant’s vehicle, a chase ensued, with the vehicles, depending on which witness you believe, possibly reaching speeds up to 90 miles per hour. Appellant and Pratt testified that they were merely trying to escape from Caskey and the occupants in his vehicle, being in fear they were going to be harmed. The chase lasted approximately ten minutes, culminating in Pratt parking appellant’s vehicle at an apartment complex, with Caskey parking his vehicle in front of appellant’s vehicle. Before any of the occupants of the Caskey vehicle could get out of their vehicle, the right front passenger window on Caskey’s vehicle was broken when appellant threw a Dr. Pepper bottle at the window. Appellant testified that at that time he believed Caskey, Roche, and Mackey were in the process of getting ready to leave their vehicle and attack him. Apparently, Roche was the first person to exit the Caskey vehicle. Soon thereafter, Roche stumbled into a nearby vacant field and fell face down. Caskey testified that prior to this time, he saw appellant at the rear of Caskey’s vehicle, where appellant uttered the words “come on fucker.” Appellant testified that Caskey, Roche, and Mackey also made some uncomplimentary and threatening statements to him during that period of time. By the time Caskey and Mackey got out of their vehicle, Roche was lying in the nearby field. It was later shown that Roche had been stabbed with a knife and had died as a result of the stab wound. Appellant and Caskey subsequently fought each other. During this period of time, Mackey had armed himself with a rubber mallet, which had been in the backseat area of Caskey’s vehicle. There is no evidence, however, that Mackey ever attempted or used the mallet. Soon thereafter, Pratt, who had left the scene, returned with a weapon, a shotgun, after which appellant and Pratt told Caskey and Mackey “to get the hell out of there.” When Caskey and Mackey were attempting to assist Roche, appellant and Pratt then left the scene in appellant’s vehicle. By that time, Roche was dead. Subsequently, Caskey and Mackey summoned the police, who investigated the incident. Appellant denied intentionally stabbing Roche, claiming that while defending himself from attack by all three of the occupants of the Caskey vehicle, and while “slashing and cutting” at them, he may have unintentionally stabbed one of them. Appellant surrendered to the police the next day and gave a written statement of his version of what had happened that night. The statement, however, was not introduced into evidence during the trial.

In his seventh ground of error, appellant claims that the evidence is insufficient to establish a violation of condition “a” of the conditions of probation, that he not violate any law against the laws of this State. At the trial for the death of Roche, the jury was instructed on, among other things, the law of self-defense. If we understand appellant’s contention under his ground of error, it is that he established self-defense as a matter of law. However, “The issue of self-defense, which was an issue of fact, was resolved by the jury against appellant and the evidence, although very close, supports that determination. Silva v. State, 546 S.W.2d 618 (Tex.Cr.App.1977); Sloan v. State, 515 S.W.2d 913 (Tex.Cr.App.1974).” Puckett v. State, 640 S.W.2d 284, 287 (Tex.Cr.App.1982). In Parkman v. State, 149 Tex.Cr.R. 101, 191 S.W.2d 743 (Tex.Cr.App.1946), this Court stated that “in order for a reviewing court to hold, as a matter of law, that a defendant in a homicide prosecution killed in self-defense, the evidence must be uncontradict-ed and no issue thereon presented for the jury’s determination. Parker v. State, 138 Tex.Cr.R. 478, 136 S.W.2d 229; Patton v. State, 129 Tex.Cr.R. 269, 86 S.W.2d 774.” Although we agree with appellant’s implicit contention that there was a sharp conflict in the evidence as to self-defense, we are unable to agree that the evidence was totally uncontradicted. The jury, therefore, was free to accept or reject appellant’s defense of self-defense. The evidence supports the jury’s verdict, which, by finding appellant guilty, implicitly rejected the appellant’s defense of self-defense. Also see Garcia v. State, 454 S.W.2d 400, 406 (Tex.Cr.App.1970); Powers v. State, 497 S.W.2d 594, 596 (Tex.Cr.App.1973). Appellant’s seventh ground of error is therefore over ruled, and the orders revoking appellant’s four probations will be affirmed.

Appellant has raised numerous grounds of error in his appeal from his conviction for killing Roche. We have carefully reviewed each ground of error and have concluded that none have merit. However, we are unable to affirm appellant’s conviction because we have found fundamental and reversible error in the trial court’s charge. See Art. 40.09, Sec. 13, Y.A.C.C.P., prior to amendment. The primary offense alleged against appellant, as set out in the indictment in this cause, was for “intentionally and knowingly causing the death of James Timothy Roche, Jr. an individual, by stabbing the said James Timothy Roche with a knife.” The trial court’s application paragraph of the charge merely tracked the allegations of the indictment. Recently, this Court, in Cobarrubio v. State, 675 S.W.2d 749 (Tex.Cr.App.1983), pointed out that “[not only must] the burden of proving the lack of sudden passion ... be placed upon the prosecution, but also ... this burden must be so placed in the paragraph of the charge applying the law of murder to the facts of the case.” In this instance, the trial court additionally charged on the offenses of voluntary manslaughter and aggravated assault. The offense of voluntary manslaughter contains the same elements as the offense of murder except that “causing death ‘under the immediate influence of sudden passion arising from an adequate cause’ is in the nature of a defense to murder that reduces the offense to the lesser included offense of voluntary manslaughter, and .. .the State need not prove such influence beyond a reasonable doubt to establish voluntary manslaughter, but that if raised by the evidence [the State] must prove the absence of such influence beyond a reasonable doubt to establish murder.” Braudrick v. State, 572 S.W.2d 709, 710 (Tex.Cr.App.1978). In Cobarrubio v. State, supra, this Court stated at p. 752:

With the defensive issue of sudden passion deleted from the paragraph of murder and placed only in the voluntary manslaughter paragraph as it is here, there exists a decided likelihood that a jury would affirmatively answer the murder paragraph, never having considered the defensive issue of sudden passion which would reduce the offense of murder to the lesser included offense of voluntary manslaughter. Thus, if the jurors followed the court’s instructions to the letter—indeed, we must presume they did—the state’s burden of proof was significantly diminished and appellant was denied an opportunity to have the jury determine his guilt on the issue of murder as interpreted by the Court in Braudrick, supra. Under these circumstances, this error precipated a denial of due process of law in the most fundamental sense.

Also see Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977); Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). In Mulla-ney, supra, the Supreme Court held that “the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case.” 421 U.S. at 703, 95 S.Ct. at 1892, 44 L.Ed.2d at 522. It logically follows, when applicable, that a jury must be so properly instructed by the trial court. See Doyle v. State, 631 S.W.2d 732 (Tex.Cr.App.1982) (On State’s Motion for Rehearing). In this instance it was not so charged. Appellant’s conviction for causing the death of Roche will therefore be reversed because the charge to the jury is fundamentally defective.

Our decision reversing appellant’s conviction for causing the death of Roche does not have any effect on our decision affirming the trial court’s orders revoking appellant’s probations. Appellant did not object to the State’s motions to revoke nor did he request the trial court to make any findings regarding the orders revoking the appellant’s probations. The trial court, when it granted the State’s motions to re voke, and ordered appellant’s probations revoked, implicitly adopted the verdict of the jury finding that the appellant unlawfully caused the death of Roche, “as charged in the indictment”. Appellant in his appeal does not challenge the verdict of the jury. We therefore hold that the orders of revocation are supported by sufficient evidence, albeit they encompass the jury’s verdict in the murder case. In any event, before it would be necessary to reverse the orders of revocation, because of insufficiency of the evidence, it would be necessary for us to also find that the State failed to prove by a preponderance of the evidence not only the greater offense of murder, but we would also have to find that the State failed to establish by a preponderance of the evidence that the appellant was guilty of any lesser included offenses of the murder offense. See Hancock v. State, 491 S.W.2d 139, 141 (Tex.Cr.App.1973); Pickett v. State, 542 S.W.2d 868, 869, 870 (Tex.Cr.App.1976); Roberson v. State, 549 S.W.2d 749 (Tex.Cr.App.1977); Littlefield v. State, 586 S.W.2d 534 (Tex.Cr.App.1979); Horton v. State, 621 S.W.2d 632 (Tex.Cr.App.1981). In the cause for which appellant was convicted of causing the death of Roche, the evidence not only supports the jury verdict finding appellant guilty of that offense, but the jury would have been warranted in finding appellant guilty of either the offense of voluntary manslaughter or the offense of aggravated assault, on which the jury was instructed.

The judgment of conviction for causing the death of Roche is reversed and remanded for a new trial. The orders revoking appellant’s probations are affirmed.

ONION, P.J., and CLINTON, McCORMICK and CAMPBELL, JJ., concur is the result.