Fisher v. State

• Decision Date: 31 March 1992
• Docket Number: No. 04-90-00108-CR,04-90-00108-CR
• Parties: Thomas FISHER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 597

827 S.W.2d 597

Thomas FISHER, Appellant, v. The STATE of Texas, Appellee.

No. 04-90-00108-CR.

Court of Appeals of Texas,

San Antonio.

March 31, 1992.

Jose M. Guerrero, Law Office of Jose M. Guerrero, Warren Alan Wolf, San Antonio, for appellant.

Steven C. Hilbig, Criminal Dist. Atty., Edward F. Shaughnessy, III, Mario De Prado, Mario Roman, Asst. Criminal Dist. Attys., San Antonio, for appellee.

Before PEEPLES, CARR and GARCIA JJ.

OPINION

CARR, Justice.

A jury convicted appellant, Thomas Fisher, of murdering his girlfriend, Barbara Baughman, by drowning her. The victim's body, allegedly dismembered and disposed of, was never entirely recovered. The trial court assessed punishment at imprisonment for thirty years. Appellant now appeals the conviction with three points of error. We affirm the judgment.

In his first point of error, appellant contends that the jury instruction had a fundamental defect because it failed to require the State to disprove sudden passion, an issue allegedly raised by the evidence. ¹ The record, however, reflects that the jury received no instruction on voluntary manslaughter and that appellant never requested such an instruction. ² In addition, appellant did not object to the charge as given or request an instruction requiring the State to prove the lack of sudden passion. Because appellant did not make a proper objection to the charge at trial, we can reverse the judgment only if the alleged error was fundamental and caused egregious harm. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (opinion on rehearing).

An accused is entitled to an instruction on sudden passion when the evidence shows that he acted under the immediate influence of sudden passion ³ arising from adequate cause. ⁴ See TEX. PENAL CODE ANN. § 19.04 (Vernon 1989) (voluntary manslaughter statute). ⁵ Appellant contends that the following testimony of witness Caesar Marquez raised the issue of sudden passion:

Q. Okay. Did Thomas--Thomas told you, Thomas Fisher, the defendant, told you he killed Barbara Baughman. Now, did he tell you what happened?

A. He did.

Q. Okay.

A. He mentioned that she got upset with him because he took too long to go get his baby, his girl, his little baby on Saturday night. Okay. And when he got back she was very angry at him and she pulled a gun on him. And she said that she was going to kill him. And then he said that he grabbed her and I guess he took the gun away from her and he said, you are not going to kill anybody. He says, I am going to kill you.

So, he said that he got a cord, an electrical cord and, you know, strangled her. But then he let her go before she died and that she was gasping for air and she came back alive, literally, and then he dragged her to the bathtub that was already full of water for the baby to bathe and he drowned her.

We find that although this testimony reflects that appellant might have reacted to the victim's conduct, it does not establish that appellant acted under such a degree of anger, rage, resentment, or terror that rendered his mind incapable of cool reflection. See TEX. PENAL CODE ANN. § 19.04(c) (Vernon 1989); see also Gonzales v. State, 717 S.W.2d 355, 357-58 (Tex.Crim.App.1986) (accused's contention that he was scared of deceased was insufficient to raise issue of sudden passion). We further find that the rest of the record lacks any evidence raising the issue of sudden passion. Accordingly, we overrule appellant's first point of error.

In the next two points of error, appellant collectively contends that the evidence is insufficient to support his conviction. ⁶ Appellant, relying on Self v. State, 513 S.W.2d 832 (Tex.Crim.App.1974), argues that his conviction cannot stand because the State failed to establish the corpus delicti of the crime of murder. Appellant specifically argues that the State presented no evidence to establish that the victim's body was found and identified. We reject appellant's arguments because (1) Texas law no longer requires the discovery and identification of the deceased's body to obtain a murder conviction; and (2) in this case portions of the victim's body were found and adequately identified.

TEXAS LAW DOES NOT REQUIRE THAT THE VICTIM'S BODY BE FOUND

AND IDENTIFIED

The 1925 Texas Penal Code contained a statutory provision relating to the victim's body in a homicide prosecution. That provision, article 1204, provided as follows:

No person shall be convicted of any grade of homicide unless the body of the deceased, or portions of it, are found and sufficiently identified to establish the fact of the death of the person charged to have been killed. ⁷

This provision, however, did not survive the implementation of the revised Texas Penal Code, which took effect on January 1, 1974. See Act of June 14, 1973, 63rd Leg., R.S., ch. 399, § 3, 1973 Tex.Gen. Laws 995 (current criminal homicide statutes at TEX. PENAL CODE ANN. §§ 19.01--19.07 (Vernon 1989 and Supp.1992)). We find that by repealing article 1204, the legislature effectively rejected the requirement that the body of the deceased be found and identified. With the repeal of article 1204, the corpus delicti requirements in a murder prosecution reverted to those established by law for all other crimes. Williams v State, 629 S.W.2d 791, 796 (Tex.App.--Dallas 1981, pet. ref'd). ⁸

Appellant recognizes the repeal of article 1204, but he contends that the State must still prove that the body of the deceased was found and identified. Appellant's contention is faulty for two reasons:

(1) his position conflicts with the established principles of ascertaining legislative intent as set forth in the Code Construction Act. See TEX. GOV'T CODE ANN. §§ 311.002, 311.021, 311.023 (Vernon 1988) (Code Construction Act); and

(2) appellant relies on five opinions from the Court of Criminal Appeals that do not squarely address the ramifications of the repeal of article 1204. See Baldree v. State, 784 S.W.2d 676 (Tex.Crim.App.1989), cert. denied, 495 U.S. 940 [110 S.Ct. 2193, 109 L.Ed.2d 521] (1990); Soffar v. State, 742 S.W.2d 371 (Tex.Crim.App.1987), cert. denied, 493 U.S. 900 [110 S.Ct. 257, 107 L.Ed.2d 206] (1989); Dunn v. State, 721 S.W.2d 325 (Tex.Crim.App.1986); Streetman v. State, 698 S.W.2d 132 (Tex.Crim.App.1985); Nathan v. State, 611 S.W.2d 69 (Tex.Crim.App. [Panel Op.] 1981).

Appellant erroneously relies on Baldree for the proposition that if the State fails to produce the body of the deceased, the evidence is legally insufficient to support the conviction. Baldree does not so hold because that issue never arose in that case. In Baldree the bodies of the victims were found and identified, and the appellant in that case did not challenge the sufficiency of the evidence to support the conviction. Appellant's misreading of Baldree is apparently based upon the Baldree court's citation to Self v. State, 513 S.W.2d 832, 834-35 (Tex.Crim.App.1974), in which the Court of Criminal Appeals, citing to former article 1204, provided that one element of the corpus delicti in a murder prosecution is that the body or remains of the deceased be found and identified. ⁹ The Baldree court, however, cited to Self simply to address a contention that the trial court had erred in failing to charge the jury that an oral confession must be corroborated in order to support a conviction. See 784 S.W.2d at 686-87. Because Baldree does not address what effect the repeal of article 1204 had upon Texas criminal jurisprudence, Baldree does not support a holding that the requirements of article 1204 remain in force.

Appellant's reliance on Soffar v. State is also misplaced. The specific issue presented in Soffar differs from the question presented in this case in two ways. First, the bodies of the victims in Soffar were found and identified. Second, the Court of Criminal Appeals cited to Self simply to discuss the requirement that extrajudicial confessions must be corroborated. See 742 S.W.2d at 375.

The third case relied upon by appellant, Dunn v. State, is another case that refers to Self in a context inapplicable to the instant case. The inapplicability of Dunn is again the result of two distinguishing factors. First, the body of the deceased was found and identified. Second, the Self holding is utilized only in the context of the requirement that extrajudicial confessions must be corroborated to support a murder conviction. See Stephens v. Great Southern Savings & Loan Ass'n, 421 S.W.2d 332, 333 (Mo.App. 1967).

The fourth case appellant relies on, Streetman v. State, also does not apply to the issue presented in this case. Streetman is yet another example of a murder conviction in which the holding of Self is cited in a discussion relating to the corroboration of extrajudicial confessions. In Streetman, furthermore, the victim's body was found and identified. Interestingly the Court of Criminal Appeals in Streetman pointed out that the present penal code does not include the requirement of former article 1204. The court then added:

Thus, the question arises, did the Legislature's failure to bring forward the former provision abolish the first element of the corpus delicti of the crime? Because in this instance the State proved up the body of the deceased, we need not today answer the posed question.

698 S.W.2d at 134-35 n. 1; see also Shannon v. State, 567 S.W.2d 510, 514 (Tex.Crim.App. [Panel Op.] 1978) (Court of Criminal Appeals chose not to consider what effect the repeal of article 1204 had on Texas criminal jurisprudence); Easley v. State, 564 S.W.2d 742, 747 (Tex.Crim.App. [Panel Op.] ), cert. denied, 439 U.S. 967, 99 S.Ct. 456, 58 L.Ed.2d 425 (1978) (same).

The final case relied upon by appellant, Nathan v. State, also does not apply here. First, Nathan is inapplicable because it involved a prosecution for "murder with malice" under the 1925 Texas Penal Code. At the time of the Nathan trial, therefore, article 1204 did apply. Second, as noted by ...