Fry v. State

• Citation: 915 S.W.2d 554
• Decision Date: 21 December 1995
• Docket Number: No. 14-94-00713-CR,14-94-00713-CR
• Parties: William Stanley FRY, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Court of Appeals of Texas

Page 554

915 S.W.2d 554

William Stanley FRY, Appellant, v. The STATE of Texas, Appellee.

No. 14-94-00713-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

Dec. 21, 1995.

Rehearing Overruled Jan. 18, 1996.

Jay Stuart Nedell, Houston, for appellant.

David Bosserman, Angleton, for appellee.

Before MURPHY, C.J., and ANDERSON and HUDSON, JJ.

OPINION

HUDSON, Justice.

Appellant was convicted by a jury of murder. The trial court assessed appellant's punishment at confinement in the penitentiary for a term of 48 years. We affirm the court's judgment.

In his first point of error, appellant contends the trial judge erred when he incorrectly advised him that he was eligible for "shock" probation. Prior to the commencement of trial, appellant elected to have the jury assess his punishment. After the jury found him guilty, appellant sought to change his election and have the court assess punishment. The State acceded to the request. Before permitting the change, the trial judge carefully admonished appellant that if he elected to have the court assess his punishment, he would forfeit any chance to receive a probated sentence other than by way of shock probation. Appellant claims the trial court had no authority to grant shock probation, and that he was misled by the trial court's erroneous admonition.

At the time of this offense, Section 6(a)(3) of Article 42.12 of the Code of Criminal Procedure specifically excluded murder as one of the crimes for which a trial court could grant shock probation. Even though the trial court's admonition to appellant was incorrect, it is not reversible error under the facts presented here. The trial judge was under no obligation to admonish appellant regarding the consequences of changing his election. Moreover, appellant decided to change his election before receiving the court's faulty admonishment.

Further, to be eligible for shock probation, a defendant must be assessed a sentence of no more than 10 years. Because the trial court assessed a sentence of 48 years, the possibility of awarding shock probation never arose. The trial court's erroneous admonition was of no consequence. Appellant's first point of error is overruled.

In his second point of error, appellant claims the trial court erred in refusing to submit instructions on the lesser included offense of voluntary manslaughter. An accused is entitled to an instruction on every defensive issue raised by the evidence. Hayes v. State, 728 S.W.2d 804, 807 (Tex.Crim.App.1987). Before an instruction on a lesser offense is warranted, the lesser offense must be included within the proof necessary to establish the offense charged, and some evidence must exist in the record that would permit a jury to rationally find that if the defendant is guilty, he is guilty only of the lesser offense. Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App.1994).

The distinguishing factor between murder and voluntary manslaughter is the element of sudden passion. When raised by the evidence, proof of the absence of sudden passion becomes an implied element of murder. Bradley v. State, 688 S.W.2d 847, 851 (Tex.Crim.App.1985). Therefore, the presence of sudden passion in a murder case raises the lesser included offense of voluntary manslaughter. Nobles v. State, 843 S.W.2d 503, 511 (Tex.Crim.App.1992). Any evidence of sudden passion requires the court to include an instruction on voluntary manslaughter, if requested. Locke v. State, 860 S.W.2d 494, 495 (Tex.App.--Waco 1993, pet. ref'd).

The deceased, Jerry Bates, loaned a rental car to his girlfriend, Brenda Baggerly. When the couple broke up, Bates went to appellant's home accompanied by Baggerly's brother, Ronnie Coleman, to pick up the car. Bates and Coleman arrived in a pick up truck, and Bates instructed Coleman to stay in the truck while he went to appellant's door to get the keys to the car. What transpired thereafter is in dispute.

Coleman testified that he watched from the truck as Bates went to the front door. Appellant opened the door and appeared to invite Bates inside. A short time later, Coleman saw the two men wrestling over a rifle. Coleman immediately went to Bates' assistance.

In contrast, appellant contends Bates and Coleman were both standing on the porch when he opened the front door. He further claims Bates forced his way inside. Both parties agree Bates had a short wooden stake in his back pocket. Appellant testified that he was "scared" of Bates because the deceased had a reputation of being a "trained killer." Because he was afraid Bates would kill him, appellant picked up a rifle. Bates and Coleman attempted to disarm appellant in a short scuffle accompanied by "cussing and screaming."

Contrary to appellant's assertion that he never lost possession of the rifle, Coleman testified that he wrenched the rifle out of appellant's hands and laid it on a counter inside the house. The parties agree the keys were given to Bates, and he left the house with Coleman. While Bates headed toward the rental car carrying the keys in his right hand, Coleman walked to the truck. According to Coleman, as Bates neared the rental car, appellant stepped onto the front porch again armed with the rifle. Appellant then shot Bates in the back. When Coleman screamed, appellant threatened, "Shut up, fat m----r f----r or I'll shoot you too." Lying on the ground, Bates remarked that he was hit in a bad place and was dying. Appellant responded, "Oh, you want me to finish you off." Bates agreed, and appellant shot the decedent a second time.

In contrast, appellant contends that as Bates neared the rental car, the decedent said to Coleman "Go get the gun." As Coleman ran toward the truck, Bates turned to appellant, put his right hand in his pants pocket, and said, "I'm going to kill you m----r f----r, I'm going to kill you." Appellant claims Bates was 7 to 8 feet away and staring him straight in the eye. Fearing that Bates might be armed, appellant fired the first shot. Bates fell to the ground and tried to draw something from his pocket. While still "eye to eye," appellant shot Bates a second time.

Danny Miksch, appellant's neighbor, testified he heard a loud noise like a door slam and looked over at appellant's residence. Miksch saw appellant step out onto his front porch carrying a rifle. Appellant raised the rifle to his shoulder and fired one time. Still on the porch, appellant fired a second shot less than thirty seconds later.

Subsequent investigation by the medical examiner revealed that Bates was hit in the lower back and left buttock. Both wound tracks were from back to front. In explanation, appellant claims Bates must have turned away when he fired the rifle. The blood pool beside the rental car was 13 feet from the edge of appellant's porch.

At the time of this incident, Section 19.04 of the Penal Code defined voluntary manslaughter as a murder where the actor causes the victim's death while "under the immediate influence of sudden passion arising from an adequate cause." Adequate cause is defined in the same section of the code as a "cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection." Because there is some evidence that he acted in self-defense, appellant contends he was entitled to an instruction on voluntary manslaughter.

"Self-defense" and "cool reflection" are not mutually exclusive concepts. An actor who fears for his life may coolly and deliberately dispatch his assailant without panic or hysteria. An instruction on self-defense does not automatically obligate the trial court to give a concomitant charge on voluntary manslaughter. Appellant's testimony that he feared for his life at the time of the shooting did not, in itself, entitle him to an instruction on voluntary manslaughter. Huffman v. State, 691 S.W.2d 726, 731 (Tex.App.--Austin 1985, no pet).

While it is possible for an actor to employ deadly force in self-defense while under the grip of terror so great as to render his mind incapable of cool reflection, we find no such evidence presented here. The court of criminal appeals has repeatedly held that fear, standing alone, does not raise the issue of sudden passion. Jenkins v. State, 740 S.W.2d 435, 443 (Tex.Crim.App.1983); Smith v. State, 721 S.W.2d 844, 854 (Tex.Crim.App.1986); Daniels v. State, 645 S.W.2d 459, 460 (Tex.Crim.App.1983). The record contains some evidence of ill will, but evidence of bad blood between the parties is not synonymous with sudden passion. Williams v. State, 768 S.W.2d 337, 339 (Tex.App.--Houston [14th Dist.] 1989, pet. ref'd). To support a charge of voluntary manslaughter, there must be some evidence of an immediate provocation which led to the homicide. See Mason v. State, 798 S.W.2d 854, 856 (Tex.App.--Houston [14th Dist.] 1990, no pet.).

Appellant testified he thought Coleman was going to get a gun out of the truck, and that Bates had a weapon in his pocket, and that he "debated" as to whether he should shoot Coleman or Bates. Appellant said he feared for his life and that he was "in quite a bit of [sic] state of shock." He further testified he had no intention of hurting anyone, and that both shots were intended only to "scare" Bates. This testimony shows a reflective and deliberate response to a perceived threat, not a spontaneous response to anger, rage, resentment, or terror. Appellant's second point of error is overruled.

Appellant contends in his third point of error that the trial court erred in failing to submit an instruction on the defense of property. Section 9.42 of the Penal Code authorizes the use of deadly force to protect property. Such force is authorized only to the degree the actor reasonably believes deadly force is immediately necessary to prevent another's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the...