Dowden v. State, No. 596-82

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: ONION; CLINTON
• Citation: 758 S.W.2d 264
• Parties: Billy Wayne DOWDEN, Sr., Appellant, v. The STATE of Texas, Appellee.
• Decision Date: 21 September 1988
• Docket Number: No. 596-82

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758 S.W.2d 264 Billy Wayne DOWDEN, Sr., Appellant,
v.
The STATE of Texas, Appellee. No. 596-82. Court of Criminal Appeals of Texas,
En Banc. Sept. 21, 1988.

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Leonard Roth, Larry D. Dowell, Houston, for appellant.

William C. Wright, Co. Atty. and James O. Jenkins, Jr., Asst. Co. Atty., Orange, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was charged with the offense of capital murder under V.T.C.A., Penal Code, § 19.03(a)(1). The indictment alleged that appellant, acting together with Clifford Blansett, on or about June 28, 1974, intentionally and knowingly killed Danny Gray by shooting him with a gun, knowing and being informed that he was a peace officer. Following a change of venue from Orange County to Harris County, appellant plead guilty to the indictment on April 30, 1975, and waived trial by jury. ¹ The court assessed punishment at life imprisonment pursuant to an apparent plea bargain in which the State waived the death penalty.

This Court heard appellant's writ of habeas corpus under Article 11.07, V.A.C.C.P., and held "that the State cannot waive the death penalty in capital murder cases, and that the petitioner could not validly waive the right to trial by jury." Ex parte Dowden, 580 S.W.2d 364, 366 (Tex.Cr.App.1979); see also Article 1.14(a), V.A.C.C.P. ("The defendant in a criminal prosecution for any offense may waive any rights secured him by law except the right of trial by jury in a capital felony case.") Having granted relief, we remanded the case to the 182nd District Court. On August 22, 1979, a jury convicted appellant of capital murder. The court sentenced appellant to life imprisonment after the jury returned a negative finding on special issue number two under Article 37.07, § 2(b)(2), V.A.C.C.P.

On appeal the Court of Appeals, in an unpublished opinion, initially reversed and remanded the case on the ground that the trial court erred in failing to charge the jury on the lesser included offenses of involuntary manslaughter and criminally

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negligent homicide. Dowden v. State, 638 S.W.2d 85 (Tex.App.--Houston [1st] 1982). The Court of Appeals subsequently withdrew its opinion, granted the State's motion for rehearing, and affirmed the conviction. Dowden v. State, 638 S.W.2d 85 (Tex.App.--Houston [1st] 1982) (Opinion on Rehearing).

We granted appellant's petition to review all six points addressed by the Court of Appeals. In three grounds for review appellant complains that the trial court erred in failing to charge the jury, despite his timely requests, on the lesser included offenses of aggravated assault, criminally negligent homicide, and involuntary manslaughter. Appellant also alleges that his motion for instructed verdict should have been granted, because a fatal and fundamental variance existed between the State's pleading and proof. Appellant's fifth ground for review claims that the State was erroneously allowed to voir dire the jury panel on the theory of causation as defined in V.T.C.A., Penal Code, § 6.04, thereby depriving appellant of his rights to effective assistance of counsel, a fair trial, and due process under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Appellant's final ground for review complains that both the trial court's charge on the definition of "intentional" and the statute upon which the charge was based, V.T.C.A., Penal Code, § 6.03, unconstitutionally shifted the burden of proof by creating a presumption that appellant intended to cause the result of his conduct.

The following statement of facts is adopted from the Court of Appeals' opinion:

"On June 28, 1974, at 1:00 a.m., the appellant's brother, Charles Ray Dowden, was arrested for robbing a 7-11 convenience store [clerk] in Orange, Texas. He was taken to the police station where he was booked and placed in the city jail on the second floor of the police station.

"The appellant, who had been at the convenience store with his brother, decided to aid his brother in escaping from jail, and he drove to his brother's house, where he picked up his sister-in-law, and told her of his plan to get his brother out of jail. The appellant and his sister-in-law then drove to Clifford Blansett's house, where they picked up a rifle and a pistol, and the three drove to the police station, arriving there around 4:00 a.m. on that same morning.

"The appellant and Blansett entered the police station and went to the dispatcher's booking office, where two police officers and one dispatcher were working. The appellant slammed open the door to the dispatcher's office, pointed an automatic pistol at the police officers and declared, 'I have come to get Charles.' The officers were stunned at the outset, but quickly regained their composure. Captain Gray (the deceased) lunged at the appellant, grabbed the hand in which he was holding the gun and, placing his other arm around the appellant's body, forced him into the hall. The door, operating on a spring closing device, closed automatically behind them. At this moment, the two men remaining in the office could not see what was happening, but they heard a shot fired in the hallway. No longer being able to see Captain Gray, they presumed that he had been shot by the appellant and was dead.

"Meanwhile, the officer remaining in the dispatcher's office, Officer Windham, drew his pistol, and the dispatcher, Denton, slipped into a small room adjoining the dispatcher's office to load a shotgun. There ensued an exchange of gunfire between the appellant and Officer Windham and Denton.

"After the fusillade subsided, Officer Windham heard 'moving around in the hall.' Whereupon Denton hollered, 'He's coming in through the door' (or 'He's at the door'). There was more 'moving around' and then another bullet came through the booking window. Following this last shot the door came 'crashing open,' and Windham immediately 'shot twice and then again.' According to Officer Windham's testimony, when he fired these shots he was on his knees at the edge of the booking counter closest

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to the door. The pistol was in his left hand, around the corner of the cabinet, and aimed at the door. On cross-examination, Windham admitted that he did not look before he fired because he thought that only the appellant could be coming through the door. Upon being asked why he shot without looking, he said he thought that he would be killed if he did not.

"Officer Windham's three shots at the person in the doorway were the last shots fired. The two men, Windham and Denton, not knowing whether their assailants had left or whether they had taken a breather, radioed for help. It was not until Windham crawled back to join Denton in the back room that he knew that the man lying in the doorway was Captain Gray, and not the appellant. A ballistics examination revealed that Captain Gray was killed by Officer Windham." Dowden, supra, at 638 S.W.2d 86-87.

Appellant combines his first three grounds for review to complain of the trial court's refusal to charge the jury at the guilt-innocence stage on the lesser included offenses of aggravated assault, criminally negligent homicide, and involuntary manslaughter. Following trial, appellant timely requested a charge on the lesser included offenses. See Article 36.15, V.A.C.C.P. He argued to the trial court that the evidence that the victim was killed by Officer Windham "reduces the offense with which the defendant is charged from capital murder to aggravated assault, a felony of third degree under Article 22.02 of the State Penal Code." Appellant's special requested charge was denied. His timely objection to the charge, under Article 36.14, V.A.C.C.P., was also overruled.

With respect to appellant's requested charge on aggravated assault, the Court of Appeals noted that appellant engaged in a gun battle with the police firing three shots into the office where two police officers were hiding; that he directed the shots toward these officers; and that such action indicated more than merely aggravated assault. Dowden, supra, at 638 S.W.2d 87.

Article 37.09, V.A.C.C.P., provides that an offense is a lesser included offense if:

"(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

"(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

"(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

"(4) it consists of an attempt to commit the offense charged or an otherwise included offense." ²

This Court enunciated its two pronged test to determine whether a charge on the lesser included offense is required in Royster v. State, 622 S.W.2d 442, 446 (Tex.Cr.App.1981) (Opinion on Rehearing).

"First, the lesser included offense must be included within the proof necessary to establish the offense charged. Secondly, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense." Royster, supra, at 446.

See also Lincecum v. State, 736 S.W.2d 673, 678 (Tex.Cr.App.1987); Moreno v. State, 721 S.W.2d 295, 301-02 (Tex.Cr.App.1986); Godsey v. State, 719 S.W.2d 578, 584 (Tex.Cr.App.1986); Santana v. State, 714 S.W.2d 1, 8 (Tex.Cr.App.1986); Moreno v. State, 702 S.W.2d 636, 640 (Tex.Cr.App.1986); Thomas v. State, 701 S.W.2d 653, 656 (Tex.Cr.App.1985); Thomas v. State, 699 S.W.2d 845, 847 (Tex.Cr.App.1985); Cordova v. State, 698 S.W.2d 107, 113 (Tex.Cr.App.1985); Rogers v. State, 687 S.W.2d 337, 344 (Tex.Cr.App.1985); Aguilar

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v. State, 682 S.W.2d 556, 558 (Tex.Cr.App.1985); Drew v. State, 735 S.W.2d 655, 657 (Tex.App.--Austin 1987, PDR...