Werner v. State

711 S.W.2d 639, 1986 Tex. Crim. App. LEXIS 1235

• Court: Court of Criminal Appeals of Texas
• Decided: April 9, 1986
• Docket: 022-85
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

A jury found appellant guilty of murder and assessed punishment at 10 years’ confinement in the Department of Corrections.

The evidence showed that appellant shot and killed Tarbell Griffin Travis, after Travis allegedly damaged an automobile owned by appellant’s friend, Kenneth Net-terville.

On appeal the appellant raised four grounds of error, the second of which contended the trial court erred in refusing to allow him to introduce certain evidence on the condition of his mind “at the time of the offense” by virtue of the testimony of two police officers and a psychiatrist. The Court of Appeals found the excluded evidence was not relevant to any issue and overruled ground of error number two. Likewise the Court of Appeals rejected the other grounds of error and affirmed the conviction. Werner v. State, 680 S.W.2d 858 (Tex.App.—Houston [1st Dist.] 1984). We granted appellant’s petition to determine whether the Court of Appeals was correct in overruling the second ground of error relating to the Holocaust syndrome.¹

The facts form the necessary backdrop for a discussion of appellant’s contention. The 21-year-old appellant left work about 10:45 p.m. on April 1, 1982. He bought a six pack of beer and about 11 p.m. went to the Netterville residence on Stillbrooke in Houston to see Kenneth Netterville. Approximately 45 minutes later while he was on the porch with Kenneth’s sister, Carole, appellant saw a car driven by the deceased, Tarbell Travis, speeding onto Stillbrooke from Greenwillow. The car swerved to miss a parked car and collided with Netter-ville’s vehicle on the opposite side of the street. The car backed into Greenwillow and took off at a high rate of speed. Kenneth Netterville came out of the house and gave appellant a pistol stating “Let’s go get him” and instructing appellant to go “that way.”

Appellant found the vehicle on Spellman Street where the deceased Travis and his passenger, John Christensen, had gotten out to inspect the damage to the vehicle in which they were riding. Appellant parked his car parallel to the other vehicle and got out carrying a flashlight in one hand and the pistol in the other hand. Christensen testified appellant said, “What the hell do you think you’re doing? You hit my friend’s car. I ought to shoot you.” Christensen recalled the deceased responded, “Well, then, why don’t you?” At this time appellant shot the deceased in the chest from which wound he expired.

Appellant testified that he pursued the deceased’s vehicle “to hold whoever hit my friend’s car for the police.” After he found the vehicle he stated he “yelled at him to get up against the car,” and the deceased replied, “You’re just going to have to shoot me, you son of a bitch.” Appellant testified the deceased made a “shrugging” motion with his shoulders and took a step towards him. With the flashlight he saw the deceased’s face and the deceased “looked crazy.” He couldn’t see the deceased’s hands and didn’t know whether the deceased was armed. Appellant stated he was in fear of his life, and to protect himself he shot the deceased in the chest.

Appellant did not know the deceased and apparently had not seen the deceased before the occasion in question. At no time during his testimony was he asked or did he state that he was a son or grandson of, survivors of the Holocaust, or that stories about the Holocaust had any influence upon his state of mind at the time of the offense.

The excluded testimony was preserved for review by informal bills of exception. It appears from the record that an hour and a half after the officers arrived at the scene of the shooting² two officers took the appellant in a patrol car to the police station. It was the conversation in the patrol car that the appellant sought to introduce before the jury.

Officer N.K. McErlane testified he drove the car on the occasion in question and heard a conversation with the appellant about the Holocaust, but that there was no interrogation of appellant. He did not consider it significant, did not include it in any offense report and did not relay the information to anyone connected with the prosecution of the case. McErlane stated the conversation had not been called to his attention until shortly before he testified. He remembered the appellant had stated appellant’s father was a survivor of the Holocaust, had been “in some camp ... during the forties” and that the father still had memories of those events which bothered him (the father). McErlane didn’t see any relationship between the Holocaust and the shooting. All he could recall of the conversation was that the father was involved in the Holocaust.

Officer Duane Hartman was also in the patrol car when appellant was transported to the police station. He testified that for 10 or 15 minutes appellant voluntarily talked about his family, that his father and grandparents were in the Holocaust, that his father had come from Poland and had been raised in a certain manner, and tried to raise him (appellant) in the same manner. He thought appellant had mentioned appellant’s father had been in a Nazi concentration camp and had witnessed people going without argument to the gas chambers, and the father had told appellant about these things as he grew up. When asked if the appellant had related what his father had told him about the concentration camps, the record reflects:

“A. Basically what he related to me is his sorrow for his father having to see this situation after having seen what he had seen when he was at the Holocaust.

“Q. Basically, he expressed sadness for what his dad had gone through.

“A. Not what his dad had gone through, but what at that time he was putting his father through for the incident, the situation he was in.

“Q. Because of the shooting?

“A. The fact that he was ashamed for putting his father through that again.”

Officer Hartman also related appellant stated he knew how Jews felt during the Holocaust as a result of his being handcuffed in the back of the patrol car and being “taken away.”

When asked if appellant had said that in growing up he had decided because of his father’s experiences to be able to defend himself if he felt threatened. Officer Hartman answered:

“Not exactly like that. We discussed guns and he was very knowledgeable on that. He reflected through that, that’s how he planned to protect himself. * * that he would be ready if the time ever arose.” (Emphasis added.)

Hartman testified he gave no significance to the statements, did not mention the same in any offense report, and did not relate the information to the prosecutor until that very day of the trial. When asked why, Officer Hartman replied, “As a result of becoming aware that was what he was going to use a defense on the basis of the Holocaust.

Appellant also proffered the testimony of Dr. Rudolph Roden, a board-certified psychiatrist, who received a degree in Russian Literature from Charles University in Prague, Czechoslovakia in 1948, a medical degree from Queen’s University in Kingston, Ontario in 1955, and a Ph.D. from the University of Montreal in 1965. It was stated Dr. Roden had come to this country three years before from Canada; was board-certified in psychiatry; that Dr. Ro-den’s particular interest was research into the area of survivors and children of survivors of Nazi concentration camps; that the doctor himself was incarcerated in concentration camps from 1940 to 1945. It was also offered that Dr. Roden had lectured and written articles in the field of his specialty. He had conducted seminars in pre-Freudian and Freud, Freud’s general psychological theory, male chauvinism, survivor syndrome, and survival.

It was proffered that Dr. Roden would testify that beginning in August, 1982, four months after the alleged offense, he began to see the appellant as a patient, and saw him some 18 or 19 times. Dr. Roden learned that the appellant’s paternal grandmother was Jewish, his paternal grandfather was Protestant, and after the grandfather’s death in 1941 or 1942 appellant’s grandmother and his half-Jewish father and other members of the family were placed in concentration camps, that the father and grandmother survived, the other members of the family did not. Dr. Roden also learned the appellant grew up with stories of concentration camps told to him by his father and grandmother, who related seeing people beaten to death who did not fight back. Dr. Roden determined appellant showed “some” of the characteristics of an individual who has the syndrome associated with children of survivors of Nazi concentration camps.

It was also stated Dr. Roden would testify that the appellant told him of the events that occurred on the night in question. Dr. Roden related that appellant told him the moment he (appellant) pulled the trigger that he wasn’t thinking about anything except protecting himself. Dr. Roden would testify, however, “that one does not need to be thinking of an event for another event in one’s life to have an effect, a subconscious effect on him;” that the appellant disliked injustice, and one of the greatest injustices was the Holocaust, and that his knowledge thereof shaped his view of self-defense, that the act of the deceased in “running into a car and leaving the scene was an unjust act in the appellant’s view, and he sought to right the wrong by detaining the deceased for the police. Dr. Roden would testify that appellant’s background caused him to make the decision to protect himself if his life was threatened, and though at the moment the alleged offense occurred he was not thinking of the Holocaust, it “was his state of mind to defend himself because he comes from a family that did not.”

The State objected to the proffered testimony of Dr. Roden on the ground of relevancy, that if self-defense is urged the “test to be made by the jury in applying the standard of an ordinary and prudent person in the Defendant’s position at the time of the offense.”

The appellant disclaimed there was any issue of insanity at the time of the commission of the offense, but urged “the law which requires that the jury be given all the facts and circumstances bearing on the state of mind of the Defendant.”

The court overruled the proffer of Dr. Roden’s testimony stating:

“THE COURT: In light of the Defendant’s testimony, the fact that there is no legal authority at all for such testimony coming before the jury, and because there are no two people alike, everybody is different, everybody comes from a different background,, different things happen in the past, because there is no special breed of people that should be treated differently, all must come within the standard of law that we have in the state of Texas, and although the Holocaust is an example of man’s inhumane acts towards their fellow man, the Court is going to sustain the objection at this time.”

Later the officers’ testimony developed earlier in the hearing on the motion in limine was offered by agreement as part of the bill of exception. This, too, was not permitted to be introduced before the jury on the grounds of relevancy.

There is no claim that the testimony of the appellant in his own behalf was limited or restricted in any way. He simply did not testify that he was suffering from a Holocaust syndrome, or that it had any effect on his actions that night. It was not mentioned at all. What appellant does assert is that it was error to exclude his oral statements to the officers and the opinion testimony of a psychiatrist. An examination of the officers’ testimony shows appellant referred to the Holocaust during the conversation in the patrol car, but Officer Hartman described it basically as an expression of sorrow that his father had been through the Holocaust and would now be confronted with appellant’s arrest. Appellant made no claim to the officers that he acted in self-defense because of the Holocaust syndrome. Dr. Roden stated appellant told him he was not thinking of the Holocaust at the time of the event in question, that appellant showed “some” of the characteristics of a child of a survivor of the Holocaust, that in his opinion he could have had a subconscious effect on him.

It is well established that evidence must be relevant to a contested fact or issue to be admissible. Stone v. State, 574 S.W.2d 85, 89 (Tex.Cr.App.1978); Aranda v. State, 640 S.W.2d 766 (Tex.App.—San Antonio 1982). It has been said that in order to determine whether any evidence is admissible, the trial judge should compare its probative value, if any, with the prejudicial and inflammatory aspects of the testimony. Ruiz v. State, 579 S.W.2d 206, 209 (Tex.Cr.App.1979); Albrecht v. State, 486 S.W.2d 97, 99 (Tex.Cr.App.1972). The determination of this admissibility is within the sound discretion of the trial judge. Jackson v. State, 575 S.W.2d 567 (Tex.Cr.App.1979); Stone v. State, supra. See also Fancher v. State, 659 S.W.2d 836, 840 (Tex.Cr.App.1983); Aranda v. State, 640 S.W.2d 766 (Tex.App.—San Antonio 1982). That determination will not be reversed on appeal unless a “clear abuse” of discretion by the trial judge is shown. Williams v. State, 535 S.W.2d 637, 640 (Tex.Cr.App.1976); Hernandez v. State, 484 S.W.2d 754, 755 (Tex.Cr.App.1972); Ricondo v. State, 657 S.W.2d 439 (Tex.App.—San Antonio 1983).

It is also settled that evidence of collateral facts which does not in some logical way tend to prove or disprove the matters in issue, is not admissible. And this rule of exclusion is particularly true when the irrelevant evidence tends to create sympathy for the deceased or his family, or to prejudice the defendant before the jury. 4 Branch’s Anno.P.C., 2nd Ed., § 2201, pp. 557, 558.

Appellant relies upon V.T.C.A., Penal Code, § 19.06 (Evidence), which provides:

“In all prosecutions for murder or voluntary manslaughter, the state or defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.” (Emphasis added.)

In light of the traditional rules of evidence the Practice commentary to § 19.06 (Searcy and Patterson) felt that need for Article 1257a, Y.A.P.C., 1925 (enacted in 1927), the forerunner of § 19.06, was obscure and questioned why it was brought forward in the current Penal Code.

Under former Article 1257a it was held that the general rules of evidence were not changed or extended or limited by the statute. Wheeler v. State, 239 S.W.2d 105 (Tex.Cr.App.1951); 4 Branch’s Anno.P.C., 2nd Ed., § 2200, p. 557. Further, Article 1257a did not make hearsay testimony admissible or render admissible testimony which otherwise would be objectionable, such as testimony which involved an opinion or conclusion of the witness. Russell v. State, 119 Tex.Cr.R. 469, 45 S.W.2d 622 (1931); Childers v. State, 150 Tex.Cr.R. 453, 202 S.W.2d 930 (1947); 4 Branch’s Anno.P.C., 2nd Ed., § 2200, p. 557.

In Fazzino v. State, 531 S.W.2d 818 (Tex.Cr.App.1976), this Court wrote:

“Section 19.06, like its predecessor, Art. 1257a, V.A.P.C., does not extend the rules of evidence to admit hearsay testimony that would be otherwise inadmissible. Jones v. State, supra [515 S.W.2d 126], and authorities there cited.” ³

In Erwin v. State, 531 S.W.2d 337 (Tex.Cr.App.1976), it was stated:

“The State’s reliance upon this statute [Sec. 19.06] is misplaced, however. It is well established that the statute neither changed, limited, nor extended the general rules of evidence relative to hearsay. Brooks v. State, 475 S.W.2d 268 (Tex.Cr.App.1972); Jones v. State, 515 S.W.2d 126 (Tex.Cr.App.1974).”

See also Love v. State, 581 S.W.2d 679, 681 (Tex.Cr.App.1979); Calamaco v. State, 650 S.W.2d 913, 916 (Tex.App.—San Antonio 1983) (no pet.)

Section 19.06 gives the appellant no more special comfort than the general rules of evidence. As the Court of Appeals pointed out in its opinion that the key word in § 19.06 is “relevant,”⁴ and that it had found no authority that testimony, regardless of relevancy or materiality, is admissible under such statute if it relates to facts and circumstances going to show condition of the mind of the accused at the time of the offense, etc.

Appellant argues the excluded evidence was material to his claim of self-defense, that his use of deadly force arose from a perception, reasonable to him, that he needed to resort to the use of deadly force for self protection, and that a reasonable person, with his background and experience, would not have retreated.

The trial court did not find that the excluded evidence was relevant and therefore admissible, and for there to be reversible error the trial court must have clearly abused its discretion.

The State argues that appellant was not entitled to the defense of self-defense, and certainly not deadly force self-defense, under the facts of the case, despite the “generous trial court” instructing the jury on the issue. Thus the proffered evidence was not material to any contested issue in the case, and was properly excluded; that if self-defense was raised, evidence of the asserted “Holocaust Syndrome” was properly excluded as an impermissible attempt to broaden the right of self-defense beyond that parameters established by V.T.C.A., Penal Code, §§ 9.31, 9.32 and 1.07(31).

Appellant used deadly force in shooting the deceased in the chest with a pistol. Section 9.32 (Deadly Force in Defense of Person) provides the use of deadly force is justified in self-defense only when three conditions are all present: (1) the defendant would have been justified in using force under § 9.31; (2) a reasonable person in the defendant’s situation would not have retreated; and (3) the use of deadly force was reasonably believed to be immediately necessary to protect the defendant against another’s use or attempted use of unlawful deadly force, or to prevent the imminent commission of specified violent crimes.

Appellant testified he did not see any weapon in the possession of the deceased or his companion, Christensen. He did not, and plainly could not have testified that he reasonably believed it necessary to shoot the deceased in order to defend himself against the deceased’s use or attempted use of deadly force. In absence of evidence of use or attempted use of deadly force by the deceased, the statutory defense permitted by § 9.32 is not available, and a defendant is not entitled to a jury instruction. See Ogas v. State, 655 S.W.2d 322, 324-325 (Tex.App.—Amarillo 1983) (no pet. history); Jones v. State, 644 S.W.2d 530, 532 (Tex.App.—Corpus Christi 1982) (no pet. history); Bray v. State, 634 S.W.2d (Tex.App.—Dallas 1982) (no pet. history). Further, there is nothing in record to indicate a reasonable person in appellant’s circumstance would not have retreated, hence the statutory defense was not raised and need not have been submitted to the jury. Ogas v. State, supra; Bray v. State, supra. Thus the excluded evidence was not relevant to any real contested issue in the case, and the court in ruling the same inadmissible did not err.

Be that as it may, even if the self-defense issue was validly before the jury the proffered testimony was still immaterial. The police officers related appellant spoke of the Holocaust, but his misgivings about the shooting and the effect upon his father were future oriented and did not necessarily explain appellant’s state of mind at the time of the offense. Dr. Ro-den’s testimony was that, although appellant continued to disclaim he was not thinking of the Holocaust at the time of the offense, he showed “some” characteristics of the syndrome associated with children of the survivors of the Holocaust, and the same might have had a subconscious effect on him. All that can be inferred from this evidence is that appellant may have been more susceptible to actions in self-defense. It did not establish that appellant did in fact act under the influence of the Holocaust on the night of the offense. See and cf. Wagner v. State, 687 S.W.2d 303, 311 (Tex.Cr.App.1984) (Opinion on Appellant’s Motion for Rehearing). The self-defense statutes permit the use of force only when and to the degree a person “reasonably believes” it immediately necessary. As stated in V.T.C.A., Penal Code, § 1.07(31), a “reasonable belief” is one that would be held by an “ordinary and prudent man in the same circumstances as the actor.” See Williams v. State, 630 S.W.2d 640, 643 (Tex.Cr.App.1982) (Opinion on State’s Motion for Rehearing). Although the test assumes that a defendant may act on appearances as viewed from his standpoint, Killiner v. State, 516 S.W.2d 671, 674 (Tex.Cr.App.1974), the test also assumes the “ordinary prudent man test of tort law.” Practice Commentary to Y.T.C.A., Penal Code, § 9.31 (Searcy and Patterson).⁵

The evidence excluded only tended to show that possibly appellant was not an ordinary and prudent man with respect to self-defense. This did not entitle appellant to an enlargement of the statutory defense on account of his psychological peculiarities. A similar point was recently made in Gonzales v. State, 689 S.W.2d 900, 903 (Tex.Cr.App.1985), with regard to V.T.C.A., Penal Code, § 19.04(c) (Voluntary manslaughter), which also utilizes the “reasonable man.”

“Appellant seems to contend that because he is an Hispanic farm worker who was living with a Caucasian woman on a low income he should be granted more latitude in the degree of insult, etc., sufficient to enrage him. Yet appellant fails to recognize that the standard of the reasonable man, the person of ordinary temper, is employed precisely to avoid different applications of the law of manslaughter to defendants of different races, creed, color, sex, or social status.”

Appellant relies upon McClure v. State, 575 S.W.2d 564 (Tex.Cr.App.1979), a murder prosecution where the issue of voluntary manslaughter was raised by McClure’s testimony. There the testimony of a psychiatrist that McClure was suffering from chronic depression and disassociated phenomena prior to shooting his wife was excluded when offered on the issue of voluntary manslaughter and sudden passion. There the Court wrote:

“The error in excluding the testimony of these three witnesses were (sic) compounded by the refusal to allow Dr. Hud-dleston to testify before the jury. His testimony certainly was admissible under V.T.C.A., Penal Code, § 19.06, as going to show appellant’s state of mind at the time of the offense. Both Huddleston’s testimony and that of the three lay witnesses were relevant to appellant’s defensive theory that he was guilty only of voluntary manslaughter, and not murder.”

First, the reference to § 19.06 in McClure as quoted was essentially dictum in light of the court’s finding that there was reversible error in the exclusion of testimony of non-expert witnesses. Second, as earlier noted, § 19.06 does not extend the rules of evidence and offer a broader basis for admission of evidence. Third, the instant case and McClure are distinguishable on the facts. Lastly, to the extent McClure can be interpreted to authorize testimony such as Dr. Roden’s in the instant case it is overruled to the extent of the conflict.

We conclude that the Court of Appeals reached the right result in overruling appellant’s ground of error #2. Under the circumstances here presented, the Court of Appeals did not err in its analysis of V.T. C.A., Penal Code, § 19.06, or erroneously interpreted V.T.C.A., Penal Code, § 1.07(31), when taken together with §§ 9.31 and 9.32. Nor did that court properly fail to apply McClure. While the Court of Appeals did cite Wagner v. State, 687 S.W.2d 303 (Tex.Cr.App.1985), a discussion of that case is not essential to a proper disposition of appellant’s contention.

The judgment of the Court of Appeals is affirmed.

CLINTON, J., dissents.

1 . In his petition for discretionary review appellant presented four grounds of review, all relating to the second ground of error. He contends the Court of Appeals erred in its analysis of V.T.C.A., Penal Code, § 19.06, as the court misinterpreted the relevancy of the excluded testimony, erroneously interpreted V.T.C.A., Penal Code, § 1.07(31), failed to properly apply McClure v. State, 575 S.W.2d 564 (Tex.Cr.App.1979), and erroneously relied upon Wagner v. State, 687 S.W.2d 303 (Tex.Cr.App.1985).

2 . The record is not clear as to how long after the shooting it was before the officers arrived.

3 . In Fazzino it was held § 19.06 did not authorize admission in the murder case of a witness' statement that defendant’s wife stated before her death that she was having an affair with another man where the witness had no direct knowledge of the alleged affair.

4 . In VanSickle v. State, 634 S.W.2d 946 (Tex.App.—Ft. Worth 1982, pet. ref'd.), it was pointed out that § 19.06 "by its very terms, limits itself to relevant facts and circumstances."

5 . In Fielder v. State, 683 S.W.2d 565, 592 (Tex.App.—Ft. Worth 1985), the Court wrote:

"TEX.PENAL CODE ANN. sec. 9.31(a) (Vernon 1974), this state's self-defense statute, provides that, ‘a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself ...". [Emphasis added.] Then, TEX.PENAL CODE ANN. sec. 9.32(3) (Vernon 1974), provides that, ‘[a] person is justified in using deadly force against another ... when and to the degree he reasonably believes the deadly force is immediately necessary...”. [Emphasis added.] Both of these statutory subsections set out a subjective standard of reasonableness. The defendant’s state of mind at the time of the incident is therefore, the controlling factor. The question becomes, whether or not the defendant reasonably believed that the use of deadly force was necessary.

“A person’s use of deadly force is limited by the application of sec. 9.32(2), which states that ‘[a] person is justified in using deadly force against another: ... if a reasonable person in the actor’s situation would not have retreated; ..." (Emphasis added.] This subsection sets out an ‘objective’ standard and not a subjective standard. The question is not whether the defendant would not have retreated, but whether or not 'a reasonable person’ in the same situation would not have retreated. See Semaire v. State, 612 S.W.2d 528, 532 (Tex.Crim.App.1981) (Douglas, J., dissenting) (McCormick, J., dissenting); and Dyson v. State, 654 S.W.2d 577, 579 (Tex.App.—Fort Worth 1983), aff'd, 672 S.W.2d 460 (Tex.Crim.App.1984). The statute requires that the defendant retreat, if he can do so safely, before taking human life. See Searcy III and Patterson, Practice Commentary on Deadly Force in Defense of Person, 1 TEX.PENAL CODE ANN. 346, 348 (Vernon 1974); and Valentine v. State, 587 S.W.2d 399, 402 (Tex.Crim.App.1979). The obligation to retreat arises at the time it becomes necessary for the defendant to use deadly force and requires retreat from the immediate situation, if possible. See Sternlight v. State, 540 S.W.2d 704, 706 (Tex.Crim.App.1976); and Young v. State, 530 S.W.2d 120, 123 (Tex.Crim.App.1975).’’