Easterling v. State

• Decision Date: 15 January 1986
• Docket Number: No. 66646,66646
• Citation: 710 S.W.2d 569
• Parties: William Truitt EASTERLING, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 569

710 S.W.2d 569

William Truitt EASTERLING, Appellant, v. The STATE of Texas, Appellee.

No. 66646.

Court of Criminal Appeals of Texas En Banc.

Jan. 15, 1986.

Rehearing Denied April 16, 1986.

Jim Vollers, Austin, for appellant.

Travis B. Bryan, III, Dist. Atty., Jim W. James, III, W. W. Torrey, Asst. Dist. Attys., Bryan, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

McCORMICK, Judge.

Appellant was convicted of attempted voluntary manslaughter and punishment was assessed at ten years and a $5,000 fine.

The evidence showed that appellant and the victim had been married and later divorced. Shortly before the date of the offense, they had been considering a possible reconciliation. However, several days prior to the commission of the offense, the victim told appellant that she no longer loved him and did not want to see him again. On September 14, 1978, the victim was at a local bowling alley when she was confronted by appellant. Appellant physically compelled her to follow him outside. There a fight ensued between the two with both individuals trading blows. Eventually appellant was able to force the victim into his car. While both parties were inside the car and still struggling, appellant pulled a pistol out of the glove compartment and placed it against the victim's left ear. Being fearful, the victim stopped struggling but told the appellant that if he was going to shoot her he had better kill her. Appellant shot the victim in the left side of her head. Appellant then drove the victim to a nearby hospital. She was hospitalized for four days before being released.

Appellant was indicted for the offense of attempted murder. The court's charge to the jury submitted the issue of attempted murder as follows:

"Now, if you find from the evidence beyond a reasonable doubt that on or about the 14th day of September, 1978, in Brazos County, Texas, the defendant, William Truitt Easterling, did, with the intent to kill Charlotte Easterling, intentionally attempt to kill the said Charlotte Easterling by shooting her with a firearm, to wit, a gun, as set forth in the indictment, then you will find the defendant guilty of attempt to commit murder.

"Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of the offense of attempted murder and consider whether he is guilty of the lesser offense of attempt to commit voluntary manslaughter."

The court then charged the jury on the lesser included offense of attempted voluntary manslaughter:

"If you find from the evidence beyond a reasonable doubt that on or about the 14th day of September, 1978, in Brazos County, Texas, the defendant, William Truitt Easterling, did, with the intent to kill the said Charlotte Easterling, intentionally attempt to kill the said Charlotte Easterling by shooting her with a firearm, to wit, a gun, but you further find and believe from all the facts and circumstances in evidence in this case, the defendant, in attempting to kill the said Charlotte Easterling, if he did, acted under the immediate influence of sudden passion arising from an adequate cause, then you will find the defendant guilty of an attempt to commit voluntary manslaughter."

The jury found appellant guilty of attempted voluntary manslaughter.

In his first ground of error, appellant argues that since the jury did not find him guilty of the greater offense of attempted murder, their action operated as an acquittal and barred a finding of guilt as to attempted voluntary manslaughter since the elements of the lesser offense were identical to the elements of the greater offense with the exception of the "sudden passion" element.

In Bradley v. State, 688 S.W.2d 847 (Tex.Cr.App.1985), this Court re-examined the relationship between murder and voluntary manslaughter. In a plurality opinion, this Court held that when the evidence in a case raises the issue that the accused "caused the death under the immediate influence of sudden passion arising from an adequate cause," voluntary manslaughter becomes a lesser included offense of murder. In those situations, the negation of the issue of "sudden passion" becomes an "implied element" of murder. See also, Lawrence v. State, 700 S.W.2d 208, (Tex.Cr.App., 1985).

In Smith v. State, (Tex.Cr.App. No. 956-82, delivered May 11, 1983, now pending on rehearing), Smith was indicted for murder, but convicted of the lesser included offense of voluntary manslaughter. On appeal, Smith contended that the jury must have found him not guilty of murder in order to consider the offense of voluntary manslaughter. We wrote:

"Indeed, an examination of the paragraphs of the charge ... demonstrates that as submitted to the jury in this case, a finding of guilt under the paragraph on voluntary manslaughter did require the jury to find all elements of murder.... The argument by appellant that the jury must have found appellant not guilty of murder in order to consider the offense of voluntary manslaughter is based on the assumption that the jury reached a decision under the murder paragraph before considering the voluntary manslaughter paragraph. When the phrasing of both paragraphs is considered, however, the only logical conclusion to reach is that the jury found all elements of murder, since the paragraph under which the verdict was returned required such a finding, and that the jury also found the element [of acting under the immediate influence of sudden passion arising from an adequate cause]." Smith, supra, slip. opinion pp. 2-3. [material in brackets added]

We reach the same holding in the instant case. Reading the charge as a whole, it is clear that the jury found all the elements of attempted murder and found additionally that the State failed to disprove that the appellant acted under the immediate influence of sudden passion arising from an adequate cause. Thus the jury returned a verdict of guilty for the offense of attempted voluntary manslaughter. In no way can the verdict be construed to mean that the jury felt the State did not prove up the elements of attempted murder. Appellant's first ground of error is overruled.

In his second ground of error appellant argues that the trial court committed reversible error in refusing to allow him to present evidence that the complainant had signed a letter saying that she did not desire to appear and testify against appellant and asking that the case be dismissed. During cross-examination of the complainant, she testified that several months after the offense, she accompanied appellant and their son to the office of defense counsel. There she met with appellant's attorney and told him that she did not want to have to go through a trial and she wanted the case against appellant dismissed. At that point in the complainant's testimony, defense counsel asked that the jury be removed and he proceeded to perfect a bill of exception. The substance of the bill was that the complainant asked appellant's counsel to write a letter to the district attorney asking that the case be dismissed. When the letter had been written, the complainant signed it. This letter was tendered into evidence as a part of the bill of exception. Out of the presence of the jury the court ruled that the complainant could be questioned along the line of her unwillingness to appear and testify but no testimony could be adduced concerning the letter. The jury was brought back into the courtroom and the complainant proceeded to testify:

BY DEFENSE COUNSEL

"Q. Ms. Easterling, it is a fact, is it not, that on the morning of June the 9th, 1979, you told me that you did not desire to appear and testify in this cause?

"A. Yes, I did.

"Q. And it is a fact, is it not, that on the morning of June the 9th, 1979, you requested that I do something so that it would not be necessary for you to appear and testify in this Cause Number 12,294, styled The State of Texas versus William Truitt Easterling?

"A. I did not request that.

"Q. All right.

"A. I believe you made mention of it.

* * *

"Q. And when you did ... Before you left the office, you knew that I was going to take some action to attempt to keep you from having to come up here and testify, didn't you?

"A. I knew you were going to bring a letter, yes."

Later on recross examination, defense counsel elicited the following from the complainant.

"Q. One or two more questions, if I may, Ms. Easterling. It is a fact, is it not, that shortly after Saturday, June the 9th, during the next week that you told Mr. Travis Bryan, III, the District Attorney of Brazos County, that you did not desire to appear and testify in this case and asked him to dismiss it?

"A. We talked about it on the telephone. I didn't ask him to dismiss it.

"Q. You didn't?

"A. No, that's not my position.

"Q. But you talked to him by telephone?

"A. Yes.

"Q. You told him at that time that you did not want it to go to trial?

"A. Yes, I did."

Appellant maintains that the admission of the actual letter was necessary to show first, the bias of the complainant and second, the fact that even the complainant had doubts about the validity of the charges filed against appellant. We disagree.

A similar contention was made in Pope v. State, 158 S.W. 527 (Tex.Cr.App.1913) (Opinion on Rehearing). This Court held that because such evidence would not render the defendant any less guilty nor aid the jury in determining the ultimate issue in the case, such evidence was properly kept away from the jury. In Beltran v. State, 593 S.W.2d 688 (Tex.Cr.App.1980), an arson case, the defendant argued on appeal that the trial court had erred in not admitting the testimony of a sergeant from the Austin Police Department who would have testified that he made a recommendation that charges of criminal mischief be filed against the accused, rather than arson charges. Once again this Court held that such testimony would not have been...