Brown v. State

• Decision Date: 03 December 2003
• Docket Number: No. 0059-03.,0059-03.
• Citation: 122 S.W.3d 794
• Parties: Kenneth Mark BROWN, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

122 S.W.3d 794

Kenneth Mark BROWN, Appellant, v. The STATE of Texas.

No. 0059-03.

Court of Criminal Appeals of Texas.

December 3, 2003.

Randy Schaffer, Houston, for appellant.

John A. Stride, Asst. Dist. Atty., McKinney, Matthew Paul, State's Attorney, Austin, for state.

OPINION

COCHRAN, J., delivered the opinion of the Court in which KELLER, P.J., MEYERS, PRICE, WOMACK, JOHNSON and HOLCOMB, J., joined.

Appellant appeared at his estranged wife's apartment one night and fired a shot through the front door, killing her boyfriend, Theron Gray. Appellant did not deny that he fired the fatal shot; rather, his defense was that he did not have any intent to kill Theron Gray. Over appellant's objection, the trial court instructed the jury that: "Intent or knowledge may be inferred by acts done or words spoken." The jury convicted appellant of capital murder and sentenced him to life imprisonment. The court of appeals affirmed.¹ We granted review to decide whether "[t]he Court of Appeals erred in holding that the trial court properly instructed the jury that it could infer appellant's intent by his acts done and the words spoken." We hold that the court's instruction was an improper comment on the weight of the evidence, but that the error was harmless.

I.

Appellant and Katrina separated in June of 1998, and soon thereafter Katrina and Theron Gray were dating. Appellant learned about the new relationship, but the two did not immediately divorce. For more than a year, they often saw each other because of their daughter, Courtney, and they sometimes acted like they were still a couple. However, on March 26, 2000, Katrina asked appellant for a divorce because she was pregnant with Theron Gray's child and wanted to marry him. Appellant was angry, but said that he still wanted to be her husband and was willing to raise Theron's baby as his own. Katrina refused and left with the understanding that appellant would agree to a divorce. Two days later, appellant came to Katrina's apartment and shot Theron to death.

Appellant had spent the early part of the evening of March 28, 2000, at the Cabaret Royal drinking with friends. Around 8:00 p.m., he called Katrina from the club and learned that Theron was at her apartment. Appellant told his friends "I can't believe this, it sucks, this is B.S." and left the club. He drove to his apartment, stormed through the door, went to his bedroom for about a minute, and left again—all without saying a word to his roommate, Chris Morrow, who was home watching television. Chris then went into appellant's room and noticed that his .357 revolver was gone. He called appellant's father and the two men decided to meet at Katrina's apartment.

Appellant crashed his car on the way to Katrina's apartment. He left the car and began walking down the highway. William Orender, who noticed that appellant looked clean-cut, stopped to offer help and gave appellant a ride to a gas station near Katrina's apartment. Orender said appellant seemed preoccupied, but was otherwise friendly.

Meanwhile, Chris arrived at Katrina's apartment. Her apartment, which was on the second floor, had a first floor entrance with a stairway down to it. Katrina came down the stairs to answer the door, but, thinking appellant was using Chris to get in, she sent Chris away. Shortly thereafter, appellant arrived and rang her doorbell.

Katrina went back down the stairs, cracked the door slightly, saw that it was appellant, and told him to go away. Appellant, angry and yelling, stuck his arm and leg in the door to prevent her from closing it. She told him she was going to call the police if he didn't leave. Theron, who was putting Courtney to sleep, came down the stairs, stood in front of Katrina, and pushed against the door. Appellant yelled, "Are you ready to die?" or "How does it feel to know you're about to die?" Katrina said, "He's got a gun." A neighbor also heard, "Oh, my God." Katrina started up the stairs to call 911, but she heard a shot, turned around, and saw Theron collapse. Appellant's shot went through the front door and hit Theron in the head. He died almost immediately.

As Katrina continued up the stairs, she heard two more shots. Those shots also hit Theron. She called 911, but appellant had followed her up the stairs and yanked the phone cord out of the wall. Katrina ran back down the stairs to check on Theron, but appellant stood at the top of the stairs, pointed his gun at her, and told her to come back up. He continued yelling, asking her why she chose Theron over him, why she couldn't love him. Katrina went upstairs and into Courtney's room. Appellant meanwhile, stood over the balcony and yelled down at Theron something like "You're not going to raise my daughter, you f... s... hole."

Katrina shut Courtney's bedroom door, went to the window, and saw policemen outside. She told them someone was dead and that her "ex-husband" was still inside with a gun. The police helped Katrina and Courtney get out through the bedroom window.

Appellant eventually complied with police demands that he surrender. He walked out the front door carrying his gun, but put it down when police ordered him to. As he was being handcuffed, he told the arresting officer, "It's okay, I won't hurt you. I've killed everyone I wanted to kill." His pockets were full of bullets.

The trial judge's proposed jury instructions included the sentence: "Intent or knowledge may be inferred by acts done or words spoken before, during, or after the conduct in question." When appellant objected to this instruction, the prosecutor suggested deleting the phrase "before, during, or after the conduct in question," which the trial court did. Appellant nonetheless objected to the modified instruction.

In the course of affirming appellant's capital murder conviction, the court of appeals held that this instruction did not comment on the weight of the evidence or violate article 36.14.²

II.

Article 36.14 of the Code of Criminal Procedure requires the trial judge to give the jury:

a written charge distinctly setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury.³

In the Texas adversarial system, the judge is a neutral arbiter between the advocates; he is the instructor in the law to the jury, but he is not involved in the fray.⁴ The advocates have the task of producing the evidence, arguing its significance, and pointing out the logical inferences that flow from that evidence. The jurors, meanwhile, are primarily passive listeners who are supposed to remain open-minded until the evidence is complete and the judge has given them the black-letter law in his written charge. "The adversary theory... maintains that the devotion of the participants, judge, juror and advocate, each to a single function, leads to the fairest and most efficient resolution of the dispute."⁵

Article 36.14 is a reflection of that devotion to a strict division of duties. The primary reason for the rule is that an instruction "by the trial judge to the jury on the weight of the evidence reduces the State's burden of proving guilt beyond a reasonable doubt to the jury's satisfaction."⁶ In Texas, a trial judge must also must refrain from making any remark calculated to convey to the jury his opinion of the case.⁷ As we have explained: "[j]urors are prone to seize with alacrity upon any conduct or language of the trial judge which they may interpret as shedding light upon his view of the weight of the evidence, or the merits of the issues involved."⁸ Thus, as an obvious example, a judge cannot tell a jury during guilt-innocence that it would reach the punishment phase the next day because the only reasonable inference for the jury is that the defendant's guilt had been established in the judge's mind.⁹

On the far end of the "improper-judicial-comment" scale is a comment or instruction that states a mandatory presumption and thereby violates due process. Mandatory presumptions violate due process by shifting the burden of production or proof to a criminal defendant on a critical fact or element of the offense.¹⁰ Thus, in Francis v. Franklin,¹¹ a case factually similar to this one—in which the defendant fired a shot through a door, killing someone—the Supreme Court held that the first two sentences of the following instruction violated due process:

The acts of a person of sound mind and discretion are presumed to be the product of the person's will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted. A person will not be presumed to act with criminal intention but the trier of facts, that is, the Jury, may find criminal intention upon a consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted.¹²

The Supreme Court concluded that this instruction constituted reversible error because "[t]he challenged sentences are cast in the language of command."¹³ Standing alone, that language created an unconstitutional burden-shifting presumption on the element of intent.¹⁴ The Court held that, to meet due process, any such instruction must be permissive rather than mandatory ("you may infer" rather than "the law presumes"), and there must be a reasonably tight logical fit between the basic facts proved and the ultimate fact inferred. The inferred fact must be "more likely than not to flow from" the proven facts.¹⁵

Somewhere in the middle of the "improper-judicial-comment" scale are instructions on non-statutory presumptions or "vehicles employed to review the sufficiency of evidence."¹⁶ Texas courts are forbidden from instructing the jury on any presumption or evidentiary...