Curtis v. State

• Decision Date: 18 October 1978
• Docket Number: No. 1,No. 55158,55158,1
• Citation: 573 S.W.2d 219
• Parties: Harold CURTIS, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 219

573 S.W.2d 219

Harold CURTIS, Appellant, v. The STATE of Texas, Appellee.

No. 55158.

Court of Criminal Appeals of Texas, Panel No. 1.

Oct. 18, 1978.

Rehearing En Banc Denied Nov. 28, 1978.

Jose E. Camacho, Austin, for appellant.

Ronald D. Earle, Dist. Atty. and Richard E. Banks, Asst. Dist. Atty., Austin, for the State.

Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.

OPINION

DOUGLAS, Judge.

Harold Curtis appeals from his conviction for the offense of voluntary manslaughter. His punishment was assessed by the jury at fifteen years. He attacks the sufficiency of the evidence, the refusal of the trial court to submit his requested instructions on simple assault, aggravated assault and independent impulse, and the alleged systematic exclusion of 18-21 year olds from the grand jury which returned the instant indictment. We overrule these contentions and affirm.

This case arose out of the 1975 murder of Austin police officer Leland Anderson. Walter Jennings was separately tried and convicted for the offense; his punishment was assessed at life. Robbie Slaughter, a co-indictee, was also convicted for the offense and was assessed a term of thirty years upon his plea of guilty.

Appellant was indicted for the offense of murder; he was convicted of the lesser included offense of voluntary manslaughter. While the evidence does not show the offense was committed under the influence of sudden passion arising from adequate cause, V.T.C.A., Penal Code, Section 19.04, his conviction must be sustained if sufficient evidence was introduced to support a finding of guilt on the greater offense of murder. Article 40.03, Section 9, V.A.C.C.P. There was sufficient evidence to show that the greater offense of murder was committed.

At 7:00 p. m. on June 6, 1975, Officer Leland Anderson was on patrol on Congress Avenue in downtown Austin. He stopped at the corner of 8th and Congress to question appellant concerning his sale of some papers on the sidewalk. After a brief discussion, Officer Anderson radioed a request for a warrant check on appellant. At this time, appellant was observed waving toward a white van driving down Congress. The driver of the van, Walter Jennings, waved back and indicated that he would park the vehicle around the block and rejoin appellant. Jennings did so and Anderson requested a warrant check on him, also. During the next few minutes a rather heated discussion took place between Anderson on the one hand and Curtis and Jennings on the other. The latter pair became highly sarcastic and belligerent toward the deceased. Travis County Sheriff's Reserve Deputy John Adams was standing nearby. He identified himself to Anderson and offered his assistance. Anderson requested that he stay in the area. Approximately two minutes after radioing his request for a warrant check, Anderson received a response indicating that there existed two outstanding warrants for appellant's arrest. Anderson told Curtis that they would have to go to the police station. He reached for the sheaf of newspapers which appellant held in his hands. Appellant refused to let go of the papers and began struggling over them with the officer. At this point Walter Jennings jumped Anderson from behind and began hitting and punching him with his fists. Appellant almost immediately jumped Anderson from the front. Both men beat the officer until, a few seconds later, Deputy Adams placed appellant in a "choke-hold" and thereby subdued him. Appellant was dragged by Adams to the vicinity of the deceased's police car. In the meantime Jennings continued to fight with Officer Anderson. The fray moved to the middle of 8th Street where Anderson's police revolver appeared over the heads of the two men. As both clutched at the gun, Robbie Slaughter appeared and attacked Anderson as well. Jennings was seen jerking the deceased's head back sharply; the officer fell to the ground and was further beaten and kicked by Jennings and Slaughter. Jennings obtained control of Anderson's gun, bent over him and fired two shots into his chest. Following the shots, Deputy Adams released appellant in order to go radio for help. Appellant, Jennings and Slaughter reunited, jumped into the white van and fled. The total elapsed time between notification of appellant's outstanding warrants and the shooting of the deceased was only forty-one seconds.

The defendants' fleeing van was spotted and pursued by an unmarked police car. As officers pulled alongside the van they saw Jennings driving and appellant standing beside him. Gunfire was exchanged and the chase continued into east Austin. A second police car joined the chase and saw the defendants' gun being thrown out the window on the passenger side. The van jumped a curb at Fourth Street and Chicon and rammed a police car which was in pursuit. As the van attempted to round a corner at Fourth and Chalmers, it overturned. The occupants refused to respond to police orders to exit the van. One officer broke the vehicle's rear window, removed the trio and placed them under arrest.

The State called Dr. Coleman de Chenar, the physician who performed the autopsy, and James Watkins, a funeral director and embalmer who assisted in the autopsy and prepared the deceased's body for burial. The testimony of these two witnesses reflects that as a result of the beating inflicted upon him Anderson received numerous facial contusions, his nose was broken, his upper lip was severely crushed and his ear was swollen and deformed. His neck had been violently stretched to the point of near separation from the cranium. His scrotum and testicles were badly bruised. Death was caused by the passing of a bullet through both lungs causing their collapse and the victim's suffocation.

The indictment charged, in pertinent part, that appellant

"did then and there knowingly and intentionally cause the death of Leland Anderson by shooting him with a pistol."

The issue is whether sufficient evidence was adduced from which the jury could have found appellant guilty beyond a reasonable doubt as a party to the instant offense. Such evidence must have shown that appellant was physically present at the commission of the offense and solicited, encouraged, directed, aided or attempted to aid Walter Jennings in the commission of the offense, either by words or other agreement. V.T.C.A., Penal Code, Section 7.02(a)(2); Baldridge v. State, 543 S.W.2d 639 (Tex.Cr.App.1976); Suff v. State, 531 S.W.2d 814 (Tex.Cr.App.1976); Bush v. State, 506 S.W.2d 603 (Tex.Cr.App.1974). Appellant contends that the second of these requirements has not been satisfied. He further contends that the actions of Walter Jennings were by themselves so clearly sufficient to produce the death of the decedent as to render appellant free of criminal responsibility for the offense.

We do not agree. The fact that appellant did not participate in the actual shooting of the deceased is immaterial. Ex parte Prior, 540 S.W.2d 723 (Tex.Cr.App.1976); Bush v. State, supra. This Court may look to events occurring before, during and after the commission of the offense and reliance may be placed on actions which show an understanding and common design to do a certain act. Ex parte Prior, supra; Bush v. State, supra; Holloway v. State, 525 S.W.2d 165 (Tex.Cr.App.1975).

It is conceded that appellant was present at the commission of the offense. The evidence showed, moreover, that although appellant did not land the first blow against Officer Anderson he did initiate the physical struggle which culminated in Anderson's death. The evidence further showed that prior to his entry into the fight appellant could see that Jennings was hitting and punching Anderson with the obvious intent to injure the officer. It was with the knowledge that his co-defendant intended to beat up the deceased that appellant then joined in the fray and knowingly and intentionally assisted Jennings in committing aggravated assault on the deceased by attacking him from the front. The record gives every indication that appellant would have continued to beat the deceased had he not been dragged away by Deputy Adams. The fact that an intervening bystander stopped appellant's participation in the fight did not negate appellant's intent to aid in the assault. Later, with the knowledge that Jennings had shot the deceased, appellant nevertheless rejoined him in the escape. The evidence shows an implicit agreement to commit the offense formulated contemporaneous with the offense. Suff v. State, supra. Whether words evidencing such agreement were uttered between appellant and Jennings is of no consequence. Barron v. State, 566 S.W.2d 929 (Tex.Cr.App.1978).

Appellant urges, however, that to support his conviction for murder, and hence manslaughter, it is not enough that he participated in the initial assault. Contrary to this contention, it does not...