Barfield v. State

• Decision Date: 27 September 2006
• Docket Number: No. 06-05-00095-CR.,06-05-00095-CR.
• Citation: 202 S.W.3d 912
• Parties: ARNOLD BARFIELD, III, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

202 S.W.3d 912

ARNOLD BARFIELD, III, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 06-05-00095-CR.

Court of Appeals of Texas, Sixth District, Texarkana.

Submitted: August 10, 2006.

Decided: September 27, 2006.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Chief Justice MORRISS.

Arnold Barfield, III, and Rickey Burns had been friends. But, in May 2003, their evening of partying turned deadly when Barfield fatally shot Burns.

Evidence showed that Barfield, Burns, and their dates first went to a Texarkana liquor store and then to a bar. At the bar, Barfield was reportedly loud and rowdy in responding to other guests' karaoke performances. Later, the four arrived at a friend's house, and Burns and Barfield had some sort of argument. No witness reported seeing Burns hit or push Barfield, but somehow Barfield ended up on the ground. In response, Barfield walked to his own truck, where he retrieved a gun. Gala Cooper, who was in Barfield's truck at the time, said that, when Barfield came to the truck, Barfield said, "I don't have to put up with this [expletive]. I don't have to deal with this [expletive]." Cooper unsuccessfully struggled with Barfield over the gun. With control of the gun, Barfield turned toward Burns, who was standing with Tonda Barton, and shot him. When Barton screamed that Barfield had shot Burns, Barfield said, "I didn't hit anybody."

Barfield was ultimately charged with, and tried for, murder—causing the death of Burns by the alternative means of (A) "shooting him with a firearm," or (B) "knowingly commit[ting] or attempt[ing] to commit an act clearly dangerous to human life, discharging a firearm at or in the direction of" Burns. A Bowie County jury returned a guilty verdict and recommended a sentence of forty years, a sentence imposed by the trial court.

We affirm the trial court's judgment because we find the following on Barfield's challenges to that judgment: (1) the jury charge properly allowed the jury to convict based on alternate means of committing murder; (2) the jury charge sufficiently required unanimity on the sudden passion issue; (3) any error in amending the indictment was harmless; and (4) ineffective assistance of counsel is not established by the record.

(1) The Jury Charge Properly Allowed the Jury to Convict Based on Alternate Means of Committing Murder

Barfield complains of the trial court's charge to the jury, which allowed the jury to convict him of murder if it found either (A) he killed Burns intentionally or knowingly by shooting Burns with a firearm; or, alternatively, (B) he committed or attempted to commit an act clearly dangerous to human life—firing a firearm in the direction of, or at, Burns—and Burns died as a result.¹ Barfield contends the trial court erred because this charge allowed the jury to convict Barfield without coming to a unanimous decision on whether he committed murder. We reject these arguments because, in short, the charge properly presented the jury with two alternative ways of committing one offense, murder.

Barfield's complaint boils down to his assertion that the trial court's charge to the jury on guilt/innocence allowed a conviction on a choice of two crimes, murder or felony murder, without requiring a unanimous finding on either. The two acts the State ultimately charged Barfield with doing are described in subsections (b)(1) and (b)(3) of Section 19.02 of the Texas Penal Code:

(b) A person commits an offense [murder] if he:

(1) intentionally or knowingly causes the death of an individual;

(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or

(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

Tex. Pen. Code Ann. § 19.02 (Vernon 2003).

It has long been established that,

if but one transaction is involved, and the offense be one which may have been committed in any one of several ways, the pleader may charge in the indictment, in one count that such offense had been committed by doing this, and that, and the other, and there will be no duplicity, and need be but a verdict of guilty. . . .

Aguirre v. State, 732 S.W.2d 320, 326 (Tex. Crim. App. 1987) (op. on reh'g) (quoting McArthur v. State, 132 Tex. Crim. 447, 105 S.W.2d 227, 230 (1937) (op. on reh'g)). In Aguirre, the appellant was refused entrance to the house by his ex-wife, and he responded by firing a shotgun through the door, killing their daughter. Aguirre was charged with murder in two alternative paragraphs, the first invoking Section 19.02(a)(1)—alleging that he intentionally or knowingly caused the girl's death—and the second invoking Section 19.02(a)(3)—alleging that he caused her death in the course of committing criminal mischief, i.e., shooting through the door. Aguirre's conviction for felony murder was affirmed. "Because appellant's indictment did not allege different offenses but only . . . different ways of committing the same offense, the court properly furnished the jury with a general verdict form." Aguirre, 732 S.W.2d at 326. Aguirre is directly applicable to the case before us.

Earlier this year, the Texas Court of Criminal Appeals was faced with a unanimity challenge and ruled that, where the charge was injury to a child, under Section 22.04 of the Texas Penal Code—but the defendant was accused alternatively of (1) striking the child, (2) failing to prevent another from injuring the child, and (3) failing to provide proper medical care for the child—the alternative allegations were just different ways to commit the single offense. See Jefferson v. State, 189 S.W.3d 305 (Tex. Crim. App. 2006)

; see also Tex. Pen. Code Ann. § 22.04 (Vernon Supp. 2006). The Jefferson court quoted approvingly an opinion of the Wisconsin Supreme Court, State v. Johnson, 627 N.W.2d 455, 459-60 (Wis. 2001), in using a two-part analysis for such a unanimity challenge: (1) examine the statute to determine whether the Legislature intended to define separate offenses or merely alternative ways to commit one offense, and (2) if the offending behavior merely constitutes alternative ways to commit one offense, consider whether that formulation denies the defendant the due process of law as stated by Schad v. Arizona, 501 U.S. 624 (1991). See Jefferson, 189 S.W.3d at 311-14. In a concurring opinion, Judge Cochran provided a grammar lesson on sentence structure, and then encapsulated the rule:

At a minimum, [the elements the jury must find, unanimously, beyond a reasonable doubt] are: the subject (the defendant); the main verb; and the direct object if the main verb requires a direct object (i.e., the offense is a result-oriented crime); and the specific occasion (the date phrase within the indictment, but narrowed down to one specific incident regardless of the date alleged). Generally, adverbial phrases, introduced by the preposition "by," describe the manner and means of committing the offense. They are not the gravamen of the offense nor elements on which the jury must be unanimous.

Jefferson, 189 S.W.3d at 316 (Cochran, J., concurring). We are constrained by Aguirre and Jefferson.

Barfield urges us to reverse based on Francis v. State, 36 S.W.3d 121 (Tex. Crim. App. 2000), and Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005). In Francis, the State presented evidence of four incidents of indecency with a child by Francis: two incidents involved touching the victim's breast; two involved touching the victim's genitals. The charge instructed the jury that Francis could be found guilty if he were found to have "engage[d] in sexual contact by touching the breast or genitals of [the victim]." Francis, 36 S.W.3d at 124. Citing Vernon v. State, 841 S.W.2d 407 (Tex. Crim. App. 1992), the Francis court held the two incidents of sexual contact were distinct criminal acts and not properly charged in a single disjunctive application paragraph. Francis, 36 S.W.3d at 124.

In Ngo, the Texas Court of Criminal Appeals held that the jury had to return a unanimous verdict on whether Ngo committed one of the charged offenses: (1) stealing Ms. Truong's credit card; (2) receiving her credit card, knowing that it was stolen and intending to use it fraudulently; or (3) fraudulently presenting her credit card with the intent to obtain a benefit. Because each of those acts constituted an independent criminal offense, merely allowing the jury to return a general verdict on whether Ngo committed one of these acts was error. Ngo, 175 S.W.3d at 744-45.

Barfield also cites Clear v. State, 76 S.W.3d 622 (Tex. App.-Corpus Christi 2002, no pet.). As in Francis, Clear involved allegations of several distinct criminal acts: penetration of the victim's sexual organ with Clear's finger, sexual organ, and more. Also, as in Francis, the charged acts are separate criminal acts, not appropriately charged in the disjunctive. Francis, Ngo, and Clear are inapposite to this discussion because Barfield's charge involved alternative means of committing a single offense.²

Barfield also complains that we cannot use Kitchens v. State, 823 S.W.2d 256 (Tex. Crim. App. 1991), to affirm the trial court. Here is what we said recently about a similar point of error:

[In Kitchens], the Texas Court of Criminal Appeals held that, "It is appropriate where the alternate theories of committing the same offense are submitted to the jury in the disjunctive for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted." [Kitchens, 823 S.W.2d] at 258, citing Aguirre v. State, 732 S.W.2d 320, 326 (Tex. Crim. App. [Panel Op.] 1987) (op. on reh'g).

Bethany v. State, 152 S.W.3d 660, 667 (Tex. App.-Texarkana 2004, pet....