Lane v. State

957 S.W.2d 584, 1997 Tex. App. LEXIS 4608, 1997 WL 530704

Opinions

OPINION

WHITTINGTON, Justice.

Nelda Bailey Lane appeals her conviction for murder. After appellant pleaded not guilty, the jury found appellant guilty and sentenced her to ten years’ confinement. In three points of error, appellant contends the trial judge erred in (1) failing to charge the jury on self-defense, (2) failing to include a culpable mental state in the application paragraph of the court’s charge, and (3) excluding expert testimony on the “battered wife syndrome” during the guilt/innocence phase of trial. For the reasons set forth below, we affirm the trial court’s judgment.

BACKGROUND

Appellant and William Lane were married for over thirty-two years and had one daughter, Ginger Varga. William was an alcoholic and an avid hunter. During the course of their marriage, William verbally abused appellant and, on several occasions, he physically abused her. Following one of the instances of physical abuse in 1980, appellant left William, filed for divorce, and obtained a temporary restraining order. Four months later, William promised to quit drinking, and appellant returned to him. The last instance of physical abuse occurred in 1981.

In March 1995, the situation between appellant and William worsened considerably. Their advertising business failed. William was very depressed and was drinking heavily. While William was away on a fishing trip, appellant moved out of the couple’s home and moved in with Ginger and her family. Appellant took William’s gun when she moved out because she thought William might try to kill himself.

Shortly after appellant moved in with Ginger, Ginger and her family left for a ski trip. On the day they left, William went to Ginger’s house. William and appellant talked until William abruptly left around 3:30 a.m. A few hours later, William called appellant and told her he wanted to know by Saturday night if she would come back to him. William called two more times that day.

The second call came about 10:30 p.m. and lasted over two hours. Appellant could tell William was drinking heavily. He begged appellant to come back to him, and she repeatedly said no. As the conversation continued, William’s speech became more violent. Then, William abruptly became very quiet. He told her at that time, in a very calm and cold voice, that he was going to kill her. William graphically described how he would slit her open like a wild animal and pull her guts out. William told appellant he would track her down. He also said he would kill Ginger. According to appellant, William had never threatened to kill her before. The phone conversation ended around 12:30 a.m.

Appellant paced the floor all night. Appellant finally decided that if she did not kill William, he would kill her and possibly their daughter. At approximately 5:00 a.m., appellant took the gun she had taken when she moved out, got in her car, and drove the eight miles to the couple’s home. The.drive took approximately twenty minutes. Appellant could hear William snoring as she entered the house. After determining that William was asleep, she walked into the bedroom and shot him three times in the head. Appellant then called her daughter in Colorado and called the police.

SELF-DEFENSE CHARGE

In her first point of error, appellant contends the trial judge erred in failing to charge the jury on self-defense. Under this point, appellant contends she was entitled to submission of a self-defense charge because her testimony showed she was acting in self-defense when she shot William. We disagree.

Under section 9.31(a) of the Texas Penal Code, a person is justified in using force against another if she reasonably believes the force is immediately necessary to protect herself against the other’s use or attempted use of unlawful force. Tex. Penal Code Ann. § 9.31(a) (Vernon 1994); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.—Dallas 1993, no pet.). Under section 9.32 of the penal code, a person is justified in using deadly force only if a reasonable person in the actor’s situation would not have retreated, and the actor reasonably believes that deadly force is immediately necessary to protect herself against another’s use or attempted use of unlawful deadly force. Tex. Penal Code Ann. § 9.32(a)(2) & (3) (Vernon 1994). However, under section 9.31(b)(1), the use of force is not justified in response to verbal provocation alone. Tex. Penal Code Ann. § 9.31(b)(1) (Vernon 1994).

Here, the evidence shows that William was asleep in a house miles away from appellant when she decided to use deadly force against him. According to the evidence, appellant had to drive eight miles, a distance which took approximately twenty minutes, to kill William. There is no evidence that William took any physical actions against appellant that would have warranted her in believing that deadly force was immediately necessary to protect herself. To the contrary, appellant relies only on the verbal threats William made over the phone almost five hours before the shooting to justify the submission of a self-defense charge. As noted above, verbal threats alone do not justify the use of force against another. Tex. Penal Code Ann. § 9.31(b)(1) (Vernon 1994); Hamel v. State, 916 S.W.2d 491, 494 (Tex.Crim.App.1996).¹ Because the .evidence in this case shows nothing more than verbal threats made to appellant, we conclude the evidence did not raise the issue of self-defense. Accordingly, the trial judge did not err in refusing appellant’s requested charge.

In reaching our decision, we necessarily reject appellant’s reliance on the court of criminal appeals’s opinion in Hamel. Appellant cites Hamel for the proposition that self-defense can be used to protect oneself from apparent danger as well as from real danger. We do not disagree with this interpretation of Hamel; however, the facts of Hamel also show that, in addition to verbal threats, the deceased made a physical act (ie., walking towards a ear where the deceased said he had a gun) before the defendant stabbed the deceased. Hamel stands for the proposition that the use of force is not justified in response to verbal provocation alone. See Hamel, 916 S.W.2d at 494 (noting that deceased’s move towards car was physical act that rendered conduct more than mere threat). Accordingly, Hamel supports our conclusion that a charge on the issue of self-defense was not appropriate in this case. See also Halbert v. State, 881 S.W.2d 121, 124 (Tex.App.—Houston [1st Dist.] 1994, pet. ref d) (concluding issue of self-defense raised in case that included not only verbal threats, but also physical act by deceased of advancing toward defendant).

For the reasons stated, we overrule appellant’s first point of error. Our disposition of appellant’s first point of error makes it unnecessary for us to consider the argument in her third point of error that the trial judge erred in excluding expert testimony on the effects of “battered women’s syndrome” during the guilt/innocence stage of trial. Tex. R.App. P. 90(a).²

CULPABLE MENTAL STATE

In her second point of error, appellant contends the trial judge erred in failing to include a culpable mental state in the application paragraph of the court’s charge to the jury. Under this point, appellant contends we must reverse her conviction because the omission of a culpable mental state denied her a fair and impartial trial. We disagree.

We note initially that appellant did not object at trial to the omission in the court’s charge. Under these circumstances, a reversal is warranted only if the appellant can show the error caused her egregious harm, i.e., that she was denied a fair and impartial trial. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g). To determine whether egregious harm occurred, we examine the entire jury charge, the state of the evidence, including the contested issues and the weight of probative evidence, the argument of counsel, and any other information contained in the record. Almanza, 686 S.W.2d at 171. Failing to include a culpable mental state in an application paragraph does not deny a defendant a fair and impartial trial when the defendant’s culpable mental state is not a contested issue. Dedesma v. State, 806 S.W.2d 928, 933 (Tex.App.—Corpus Christi 1991, pet. ref'd).

Here, the abstract portion of the court’s charge properly set forth the elements of murder, including the required mental state. Thus, when viewed in its entirety, the court’s charge informed the jury of the mental state required for commission of the charged offense. In addition, we note that appellant admitted at trial that she knowingly and intentionally shot William. Accordingly, her culpable mental state was not a contested issue at trial. Under these circumstances, we fail to see how the failure to include the culpable mental state in the application paragraph could have caused appellant egregious harm. See Dedesma, 806 S.W.2d at 933. We overrule appellant’s second point of error.

For the reasons stated, we affirm the trial court’s judgment.

JAMES, J., dissenting.

1 . Although appellant argues that William’s drinking, when coupled with the verbal threats, was sufficient to show an "overt act” that justified the use of force, we disagree. Appellant cites no authority, and we have found none, indicating that drinking alcohol, even to the point of intoxication, can constitute the physical act necessary to justify the use of force. We decline to so hold.

2 . This review is unnecessary because even if testimony regarding “battered women’s syndrome” showed that appellant was justified in believing she could not retreat from the situation, it would not provide the overt physical act required for submission of a self-defense charge. Appellant makes no argument that the excluded evidence would have provided evidence of an overt physical act. In addition, although appellant suggests in her brief that the evidence might have been relevant to the issue of sudden passion, we note that under the law applicable to this case, sudden passion was an issue to be determined at punishment and the complained-of evidence was admitted during punishment. See Tex. Penal Code Ann. § 19.02(d) (Vernon 1994). Appellant did not object in the court below that the charge was incomplete because it failed to include an issue on sudden passion, and appellant has not complained about this omission on appeal.