Frank v. State

• Decision Date: 01 May 1985
• Docket Number: No. 268-84,268-84
• Citation: 688 S.W.2d 863
• Parties: Floyd Vollien FRANK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 863

688 S.W.2d 863

Floyd Vollien FRANK, Appellant, v. The STATE of Texas, Appellee.

No. 268-84.

Court of Criminal Appeals of Texas,

En Banc.

May 1, 1985.

Joe B. Goodwin (on appeal only), Beaumont, for appellant.

James S. McGrath, Dist. Atty., R.W. Fisher, Asst. Dist. Atty., Beaumont, Robert Huttash, State's Atty. and Cathleen R. Riedel, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was convicted of murder in a trial before the jury. Punishment was assessed by the jury at 20 years imprisonment. On appeal to the Beaumont Court of Appeals, appellant's conviction was affirmed. Frank v. State, (Tex.App.--Beaumont No. 09-83-018 CR, November 9, 1983). We granted the appellant's petition for discretionary review to determine, among other things, whether the court of appeals was correct in holding that appellant was not entitled to a defensive charge on the right to defend himself against a joint attack. We reverse.

Before reaching the merits of appellant's contentions, we first address the State's argument that the error, if any, was not preserved. The record reflects that prior to the delivery of the charge to the jury, appellant filed with the court a document entitled "Defendant's Requested Charges". This two and a half page document contained instructions on the right of self-defense against multiple assailants, instructions on apparent danger, and a paragraph applying both theories to the facts of the instant case. ¹ Article 36.15, V.A.C.C.P., specifically provides, in pertinent part "The defendant may, by a special requested instruction, call the trial court's attention to error in the charge, as well as omissions therefrom, and no other exception or objection to the court's charge shall be necessary to preserve any error reflected by any special requested instruction which the trial court refuses." (emphasis added).

Although Art. 36.15, supra, clearly holds that the presentation by appellant of his special requested instructions preserves any error from the denial thereof, the State, in its brief, essentially argues that appellant's counsel later waived any error as a result of the following exchange after the closing of the evidence:

"THE COURT: The [State's] objection [to the inclusion of a charge on voluntary manslaughter] is overruled. Do you have any others, Mr. Grove [the prosecutor]?

"MR. GROVE: No, Your Honor.

"THE COURT: Mr. DeLee [appellant's attorney]

"MR. DELEE: Your Honor, I have a written requested Charge I wish the Court to consider.

"THE COURT: All right.

"MR. DELEE: It's similar to the Court's Charge, Your Honor, but not exactly the same.

"THE COURT: The request for the tendered Charge is denied. Anything further, Mr. DeLee?

"MR. DELEE: No, Your Honor."

The State argues that the appellant implied by these statements that his written requested instructions were substantially the same as those given by the trial court and thus by so stating he waived any error. See DeBolt v. State, 604 S.W.2d 164 (Tex.Cr.App.1980). We disagree.

The trial court had before it the requested written instructions as well as the already prepared court's charge. Appellant's attorney specifically directed the court's attention to the instructions. Even a quick perusal of the requested instructions clearly shows that although appellant was using similar language in setting out parts of the instructions, his charge substantially differed from the trial court's by the presentation of instructions relative to self defense against an attack by multiple assailants. To agree with the State that appellant waived error would be to hold that the trial judge had no obligation, after being requested to consider a written requested charge presented as similar but not exactly the same as the Court's Charge, to even peruse the instructions after his attention had been specifically directed to them. Such a holding flies in the face of the express and implied intent of Art. 36.15. The State's argument is without merit.

In a supplemental brief on the same matter, the State's attorney refers this Court to Hackbarth v. State, 617 S.W.2d 944 (Tex.Cr.App.1981), as an analogous situation wherein we held that the objection to the charge was not specific enough to preserve error. The total objection to the charge in Hackbarth was as follows: "Fourth. That the defendant objects and excepts to the Court's charge as a whole as the same is not sufficient to protect the rights of the defendant." Hackbarth, however, is simply not on point in that the defendant was making an objection to the charge, pursuant to Art. 36.14, V.A.C.C.P., not a requested special charge, as provided for in Art. 36.15, supra, and at issue in the instant cause. Moreover, the objection in Hackbarth, of course, was totally insufficient to apprise the trial court of the defendant's complaint whereas the appellant in the case at bar properly presented his special requested instructions in writing prior to the court reading the charge to the jury. No other objection was necessary.

Accordingly, we find that any error which occurred from the trial court's denial of the requested instructions was preserved according to the requirements of Art. 36.15, V.A.C.C.P.

We next address appellant's contention that the trial court erred in refusing his special requested instruction on self-defense against a joint attack. The appellant in the instant cause was convicted of the murder of his ex-wife, Goldy Franks. The offense occurred in the front yard of appellant's home when the deceased and her son, Alex Thibo, approached appellant regarding retrieval of a lawn mower which had been awarded to the deceased in the recent divorce decree. According to the testimony of Thibo, appellant shot them without provocation or warning. Thibo was shot twice; his mother was shot three times in the head.

The appellant's testimony as to the circumstances surrounding the shooting differed in several aspects from that of Thibo. He testified that since he and his wife had begun having marital problems, her children, particularly Thibo, had made threats against appellant, had harassed him, and had destroyed his property. He stated he had often called the police as a result of these threats and harrassment. He specifically described several previous threats to his life made by Thibo. He also testified that a few minutes before the instant offense, Thibo had driven by his house, stopped, started "shouting and raving," told appellant he would return with his "stuff," which appellant described as street language for "gun," and drove off. After this threat, appellant went into his house, called the police, picked up his pistol, and returned to the yard to work on the lawn mower. He testified he felt he had to protect himself from Thibo who he claimed often carried a gun and had been in several knife fights. He also testified that his ex-wife sometimes carried a gun and a "long knife" with which "she was saying how she could hide it and walk right up on somebody before they know she's got it." Appellant then described the following sequence of events:

"A. Before I know it, a big red L.T.D. with white top pulled back up. Two people jumped out and ran up to the yard. Before I could even straighten out good, Thibo was on the top step.

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"Q. And who was with him?

"A. His mother, Goldie Frank.

"Q. What did you do when they drove up?

"A. I was just finishing up adjusting the back wheels and front wheels to the mower so they could be lifted higher.

"Q. Were you on your knees?

"A. Yes, sir.

"Q. Were you bending over the lawnmower?

"A. Yes, sir, on my knees when they drove up.

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"A. ... The gate was open just like it is now, and they ran in. They just come right on in. I hardly had time to stand up.

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"Q. Well, what were they saying when they ran in, then, ran through the gate?

"A. He stood on top [of the steps] and said, 'We come to get the lawnmower'.

"Q. Who said that?

"A. Thibo.

"Q. Were you straightened up at that time?

"A. Yes, sir, I was--I said, 'You're going to have trouble getting it'.

"Q. Then what happened?

"A. She got too close to me.

"Q. What do you mean, 'too close to me'?

"A. She got too close to me, and he was moving into me at the same time, and--

"Q. All right. Were you afraid you were going to be hurt then?

"A. Sir, wouldn't you be afraid?

"Q. Were you afraid?

"A. Yes, sir, I was definitely afraid I was going to be hurt.

"Q. What do you mean, 'got too close to me'?

"A. She was right up under me, there, and she could stick anything in my ribs.

"Q. What do you mean by 'right up under you'? You weren't on the step, were you?

"A. No. I was standing down here on the ground. Thibo was standing here at the top step.

"Q. All right.

"A. When she ran in, she ran straight over toward me, like this--and he went to moving in and she ran in there close to me. Well, I figured--I said, '[i]f this is what it is coming to, stop the bad man first', so I shot him first, then I shot down. She didn't move. I thought I missed her. The gun didn't go off. I didn't know. I was excited, I guess, so I just did it a couple of more times, and she finally moved, and he's right up on top of me, like this, so I shot him in the hand. I thought I shot him somewhere else, but it turned out I shot him in the hand. He fell in the bush, then, and took off running.

"Q. All right. You said he was coming at you the second time?

"A. Yes, sir.

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"Q. Were you afraid for your life, Floyd?

"A. Sir, at a time like that, anybody would be afraid for their life, and I was definitely there.

"Q. It's your testimony that they more or less attacked you from the car, they ran at you?

"A. They ran into the yard and got there, and they--looked like they were timing themselves so they could both get me at the same time.

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Appellant...