Brotherton v. State

• Decision Date: 28 July 1983
• Docket Number: No. C14-82-516CR,C14-82-516CR
• Citation: 666 S.W.2d 126
• Parties: Charles Richard BROTHERTON, Appellant, v. STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 126

666 S.W.2d 126

Charles Richard BROTHERTON, Appellant, v. STATE of Texas, Appellee.

No. C14-82-516CR.

Court of Appeals of Texas Houston (14th Dist.).

July 28, 1983.

Discretionary Review Refused Jan. 11, 1984.

Catherine Greene, Houston, for appellant.

John B. Holmes, Jr., Houston, for appellee.

Before JUNELL, MURPHY and SEARS, JJ.

JUNELL, Justice.

This appeal arises from a conviction by a jury for murder. The jury assessed punishment at confinement for forty-five years and a $1,000.00 fine. We affirm.

Appellant does not challenge the sufficiency of the evidence, so we include only a brief rendition of the facts surrounding the offense.

On August 4, 1981 appellant was visiting an apartment occupied by Verna Blitch Hathaway (the deceased) and her boyfriend Bob Rutledge. Amid a heated discussion among those three persons, appellant shot Hathaway in the head. Appellant admitted that he killed Hathaway, but insisted that Hathaway was wielding a knife in an attempt to kill appellant when the fatal shot was fired.

In his third ground of error, appellant complains of the court's charge, to wit:

Now, if you find from the evidence beyond a reasonable doubt that the defendant, Charles Richard Brotherton, did intend to cause serious bodily injury to Verna Blitch Hathaway, and did cause the death of Verna Blitch Hathaway, by committing an act clearly dangerous to human life, namely, by shooting her with a firearm, but you further find from the evidence that viewed from the standpoint of the defendant at the time, from the words or conduct, or both, of Verna Blitch Hathaway, it reasonably appeared to him that his life or person was in danger and there was created in his mind a reasonable expectation of fear of death or serious bodily injury from the use of unlawful deadly force at the hands of Verna Blitch Hathaway, and that acting under such apprehensions, he reasonably believed that the use of deadly force on his part was immediately necessary to protect himself against Verna Blitch Hathaway's use or attempted use of unlawful deadly force, and he did intend to cause serious bodily injury to Verna Blitch Hathaway, and did cause the death of Verna Blitch Hathaway by committing an act clearly dangerous to human life, namely by shooting her with a firearm, and that a reasonable person in defendant's situation would not have retreated, then you should acquit the defendant on the grounds of self defense; or if you have a reasonable doubt as to whether or not the defendant was acting in self-defense on said occasion and under the circumstances, then you should give the benefit of that doubt to the defendant and acquit him, and say by your verdict "not guilty." (emphasis added)

Appellant contends that the foregoing instructions are contrary to TEX.PENAL CODE ANN. § 2.03(d) (Vernon 1974) which states, "If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted." Specifically, appellant contends the instruction on self-defense shifted the burden of proof to appellant. He contends, "there should be no problem in clearly stating in the jury instruction that the state has the burden of disproving the defensive issue beyond a reasonable doubt." He urges us to directly impose this burden of persuasion upon the state with an instruction which would require acquittal unless the state disproved beyond a reasonable doubt the truth of the defensive facts of self-defense.

We are unable to find any current Texas case which would require a charge to state specifically that the state must disprove justification in order to prove murder. The charge in the instant case concerned self-defense, which excuses, not mitigates, the homicide. We decline to impose a "lack of justification" as an element in the charge which must be specifically disproved by the state when the issue of self-defense is raised by the evidence. As appellant concedes, the instant charge meets the requirements of Luck v. State, 588 S.W.2d 371 (Tex.Cr.App.1979) (opinion on motion for rehearing) cert. denied, 446 U.S. 944, 100 S.Ct. 2171, 64 L.Ed.2d 799 (1980). The jury was required to acquit appellant if they believed he was acting in self defense or the jury had a reasonable doubt thereof. The charge stated that the burden of proof beyond a reasonable doubt was on the state and contained instructions on the presumption of innocence. We adhere to the ruling in Luck and overrule ground of error three.

By ground of error four, appellant contends he was denied effective assistance of counsel. Appellant complains of his attorney's performance in four respects: (1) In calling Carla Brotherton, appellant's wife, to testify; (2) in failing to assert a "marital privilege" objection to Mrs. Brotherton's testimony; (3) in failing to preserve error which allegedly occurred during summation; and (4) in failing to object to the state's testimony concerning trace metal detection tests.

Carla Brotherton testified about the previous relationship between appellant and Hathaway, including Hathaway's assaultive acts of the previous day which led to appellant's being in possession of Hathaway's gun. On cross-examination, the state questioned Mrs. Brotherton about a conversation with appellant immediately following the shooting. Mrs. Brotherton testified that appellant told her he had killed the deceased, and that they should "leave the[ir] apartment." Appellant's counsel made a hearsay objection to the testimony which was overruled by the court. Appellant now claims that Mrs. Brotherton's testimony opened the door for the state to impeach her with a prior statement she gave the police in which she made no mention of self-defense. Appellant urges that a pre-trial interview between appellant's trial counsel and Mrs. Brotherton would have revealed that she had given a statement to the police and had not mentioned appellant's claim that Hathaway had a knife at the time of the shooting. Appellant claims that proper preparation would have alerted trial counsel to this possible ground of impeachment.

Appellant concedes a decision to call a witness is generally a matter of trial strategy. Ex parte Duffy, 607 S.W.2d 507 (Tex.Cr.App.1980). Furthermore, failure to interview a witness will be considered ineffective assistance of counsel when an inaction precludes the accused from advancing a viable...