Blansett v. State

• Decision Date: 14 September 1977
• Docket Number: No. 52872,52872
• Citation: 556 S.W.2d 322
• Parties: Clifford S. BLANSETT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 322

556 S.W.2d 322

Clifford S. BLANSETT, Appellant, v. The STATE of Texas, Appellee.

No. 52872.

Court of Criminal Appeals of Texas.

Sept. 14, 1977.

Rehearing Denied Oct. 19, 1977.

Buddie J. Hahn, Vidor, for appellant.

Jim Sharon Bearden, County Atty., and Patrick A. Clark, Asst. County Atty., Orange, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of capital murder. Since the jury answered "No" to the special issues submitted under Article 37.071, V.A.C.C.P., the punishment is imprisonment for life.

A brief summary of the facts, which are without substantial conflict, is necessary. At about 1:00 a. m. on June 28, 1974, Charles Dowden was apprehended and arrested wearing a mask and carrying a gun. He was booked for attempted robbery and placed in the Orange city jail. At approximately 4:00 a. m. on the same morning the appellant and Billy Wayne Dowden went to the Orange city jail and by armed force attempted to release Dowden's brother, Charles. Billy Wayne Dowden was armed with a pistol, and the appellant was armed with a shotgun. Billy Wayne Dowden, followed by the appellant, entered the building and knocked open the door of the dispatcher's office; Billy Wayne Dowden, with the pistol in his hand, announced that he had come to get Charles. Police Captain Danny L. Gray immediately grabbed Dowden and wrestled him back through the door into the hallway outside the dispatcher's office. Dowden freed himself from Gray and a gunshot was heard by the officers inside the dispatcher's office. Dowden then appeared at the dispatcher's window and shot at the officers in the dispatcher's office. A gun battle ensued between Officer Windham, who was in the dispatcher's office, and Dowden, who was outside in the hallway. During the gunfight Captain Gray was shot and killed. It was later determined that the shot that killed Captain Gray was fired from Officer Windham's gun. Windham and the other officers in the dispatcher's office did not see the appellant, although they could hear someone out in the hallway with Billy Wayne Dowden. There is no evidence that the appellant fired his shotgun. Shortly after the gun battle the appellant and Dowden fled from the jail but were later arrested.

In related grounds of error the appellant urges that: the evidence is insufficient to support the conviction for capital murder; the court erred in submitting a charge to the jury which permitted it to find the appellant guilty of capital murder; the court erred in instructing the jury on the theory of causation as it is defined in V.T.C.A. Penal Code, Section 6.04; and the court erred in instructing the jury on the theory of criminal responsibility for the acts of another as it is defined in V.T.C.A. Penal Code, Section 7.02(b). ¹ These grounds of error raise the issue of whether the appellant is guilty of capital murder when the victim, a peace officer, was shot by another peace officer who was acting in self-defense, in defense of fellow officers, and to resist the commission or attempted commission of a felony by the appellant and the co-felon, Billy Wayne Dowden. We hold that the appellant may be guilty of capital murder in these circumstances.

The appellant's fundamental argument is that the felony-murder doctrine does not apply to capital murder in these circumstances and under the theory of the prosecution as charged in the indictment. ² Many courts have wrestled with the difficult problem of whether the felony-murder doctrine should be applied when the killing is not done by the felon or a co-felon, but is done by another person while resisting the commission of the felony; see the cases cited and annotations, 56 A.L.R.3d 239; but that is not the problem here. We find the appellant, by the application of our statutes to the circumstances of this case, is guilty of capital murder apart from the felony-murder doctrine, if he intentionally caused the death of Gray.

The evidence shows that the appellant along with Billy Wayne Dowden consciously went to the Orange city jail with firearms to use those firearms with a conscious disregard for life; they intentionally engaged in that conduct, as the term intentionally is defined by V.T.C.A. Penal Code, Section 6.03(a). ³ The death of Gray would not have occurred but for the conduct of the appellant and Billy Wayne Dowden, and this conduct was the cause of Gray's death, as causation is defined by V.T.C.A. Penal Code, Section 6.04(a). ⁴ The shooting of Gray by Windham was not a concurrent cause of Gray's death. Chief Justice Traynor, speaking for the California Supreme Court sitting in bank in People v. Gilbert, 63 Cal.2d 690, 704-705, 47 Cal.Rptr. 909, 917, 408 P.2d 365, 373 (1965), rev. on other grounds, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), clearly states the law as it applies in circumstances similar to the circumstances in this case:

"When the defendant or his accomplice, with conscious disregard for life, intentionally commits an act that is likely to cause death, and his victim or a police officer kills in reasonable response to such act, the defendant is guilty of murder. In such case, the killing is attributable, not merely to the commission of a felony, but to the intentional act of the defendant or his accomplice committed with conscious disregard for life. Thus, the victim's self-defensive killing or the police officer's killing in the performance of his duty cannot be considered an independent intervening cause for which the defendant is not liable, for it is a reasonable response to the dilemma thrust upon the victim or the policeman by the intentional act of the defendant or his accomplice."

Also, in People v. Gilbert, supra, Chief Justice Traynor, with reference to his opinion in People v. Washington, 62 Cal.2d 777, 44 Cal.Rptr. 442, 402 P.2d 130 (1965), said:

" . . . we recognized, however, that entirely apart from the felony-murder rule, malice may be established when a defendant initiates a gunbattle, and that under such circumstances he may be convicted of murder for a killing committed by another . . ."

See also Taylor v. Superior Court of Alameda County, 3 Cal.3d 578, 91 Cal. Rptr. 275, 477 P.2d 131 (In Bank 1970); People v. Reed, 270 Cal.App.2d 37, 75 Cal.Rptr. 430 (1969); People v. Bosby, 256 Cal.App.2d 209, 64 Cal.Rptr. 159 (1967); People v. Podolski, 332 Mich. 508, 52 N.W.2d 201 (1952). Under former Penal Codes the same result in similar circumstances was reached. See Taylor v. State, 41 Tex.Cr. 564, 55 S.W. 961 (Tex.Cr.App. 1900); Miers v. State, 157 Tex.Cr. 572, 251 S.W.2d 404 (Tex.Cr.App.1950).

The evidence would support a conviction either on the theory of appellant's guilt because of his own acts or of appellant's guilt because of his responsibility for the acts of Billy Wayne Dowden. However, the charge which was submitted to the jury, when considered as a whole, submitted only the theory of appellant's guilt because of his responsibility for the acts of Billy Wayne Dowden. ⁵ The submission of such a charge was error, the appellant argues, because V.T.C.A. Penal Code, Sec. 7.02 does not apply to capital murder cases. Such an argument was rejected in Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976) where a death penalty conviction was upheld and the appellant was guilty of murder because of his responsibility for the acts of another. V.T.C.A. Penal Code, Sec. 7.02.

The refusal to submit to the jury the appellant's specially requested charge set out in our footnote 1 was not error because the court's charge did require the jury to find that the appellant intentionally or knowingly caused Gray's death. ⁶

The appellant also complains that the trial court erred in admitting in evidence hearsay statements made by Billy Wayne Dowden. A handgun was admitted in evidence. One of the officers who participated in the investigation of the murder was Edgar Martin, a special agent of the Federal Bureau of Investigation. He testified that after a conversation Dowden led officers to the hidden handgun. The appellant's complaint is that Martin was also allowed to testify that Dowden said it was the gun which he had used and fired at the jail.

Prior to the admission of this testimony Martin had testified without objection that other officers had been led by Dowden to a road where he said "he had left the gun that he had had at the station that morning." Independent of the hearsay testimony, there is evidence that a laboratory examination showed bullets and casings found at the jail on the morning of June 28th came from the weapon to which Dowden led the officers. The appellant also testified that he saw Dowden fire a pistol at the jail. Moreover, Darlene Dowden, Charles Dowden's wife, who had accompanied the appellant and Billy Wayne Dowden to the scene of the murder at the Orange city jail, testified that she saw Billy Wayne Dowden with a pistol at the city jail. Also, she was with Billy Wayne Dowden when he fled from the jail, drove to the place where he shaved off his mustache, and hid the pistol. The admission in evidence of the hearsay statements made by Dowden was in these circumstances beyond a doubt harmless error. See Hampton v. State, 511 S.W.2d 1 (Tex.Cr.App.1974).

The appellant asserts that the trial court erred in admitting in evidence statements he made to Agent Martin. Since he was in custody and since these statements were not reduced to writing, the appellant argues the statements were inadmissible under the provisions of Art. 38.22, V.A.C.C.P.

Martin was told by the appellant that he did not know why he was in custody because no one could place him at the scene of the murder. Martin told the appellant that he could be placed at the murder scene by Billy Wayne Dowden. The appellant then said if he could be placed at the murder scene he would think about getting his "business straight."...