Giesberg v. State

• Decision Date: 30 September 1998
• Docket Number: No. 696-97,696-97
• Parties: Thomas M. GIESBERG, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 245

984 S.W.2d 245

Thomas M. GIESBERG, Appellant, v. The STATE of Texas.

No. 696-97.

Court of Criminal Appeals of Texas En Banc.

Sept. 30, 1998.

Brian W. Wice, Houston, for appellant.

Kelie Pool Roper, Assist. DA, Houston, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

HOLLAND, Judge, delivered the opinion of the Court in which McCORMICK, Presiding Judge, KELLER, PRICE and WOMACK, Judges, joined.

A jury convicted appellant for the murder of Ramon Montes and sentenced appellant to 65 years confinement in the Texas Department of Criminal Justice--Institutional Division. See TEX. PENAL CODE ANN. § 19.02(b)(1) & (2). The trial court made an affirmative finding in the judgment that appellant used a deadly weapon in the commission of the murder. Appellant appealed his conviction to the First Court of Appeals.

The First Court of Appeals affirmed the trial court's judgment. Giesberg v. State, 945 S.W.2d 120 (Tex.App.--Houston [1st Dist.] 1997). Appellant petitioned this Court to review the decision of the First Court of Appeals. This Court granted review on the second ground for review raised by appellant in his petition:

"Whether the Court of Appeals erred in holding that the trial court did not err in denying appellant's request for a jury instruction on the defensive theory of alibi after the evidence fairly raised the issue."

This Court affirms the judgment of the First Court of Appeals.

On July 12, 1990, appellant murdered Ramon Montes, the husband of his sister, by stabbing Montes in the abdomen and severely burning Montes. Testimony at trial established that appellant was seen on July 12th standing over the body of Montes on the balcony of Montes' apartment. Prior to July 12th, Montes allegedly severely beat appellant's sister, provoking appellant's anger. In the defense's case-in-chief, appellant presented evidence that on the evening of the murder he was drinking with friends at Valhalla, a bar for Rice University graduate students. After the close of evidence at the guilt / innocence stage, appellant requested that the trial court instruct the jury on his defensive theory of alibi:

"Additionally, the defense would request the following: The defense--a defense set up by the defendant in this case is what is known as an alibi at the time of the killing, the defendant was at another and different place, was not and could not have been the person who committed the offense. If you have a reasonable doubt as to the presence of the defendant at the place where the offense was committed at the time the offense was committed, then you will find the defendant not guilty."

Appellant based his request on two defensive theories. Both theories rested on the State's proof that the murder of Montes occurred in the late afternoon. First, appellant offered testimony from his boss that appellant left work between 4:00 and 5:00 p.m. to make some deliveries. Though conceding the State's evidence from an investigating officer that the recipients of the deliveries claimed no deliveries were made, appellant produced evidence "of one of the deliveries being made having a file stamp of the date of the offense." Appellant's first theory is, essentially, that he was making deliveries at the time of the murder. Second, appellant offered proof to the jury that he arrived at the Valhalla Bar to meet his friends at 6:30 p.m. Though one of his friends testified that appellant was supposed to have been there at 5:30, they all supported his claim that he was there by 6:30. Appellant argued to the trial court it would have been impossible for him to murder Montes, be seen around the scene of the murder, and be at the Valhalla Bar by 6:30 p.m. Appellant's trial counsel contended this created a reasonable doubt "as to whether or not he was present at the scene, cleaned up, and arrived there [the Valhalla Bar]." Taken together, appellant argued to the trial court, this "creates some evidence, may suggest some evidence of alibi." The trial court denied appellant's request for an instruction on alibi.

On direct appeal, appellant argued the "trial court erred in denying appellant's request for a jury instruction on the defensive issue of alibi after the evidence fairly raised the issue." The First Court of Appeals conceded that a defendant is "entitled to a jury instruction on every defensive issue raised by the evidence." Giesberg v. State, 945 S.W.2d at 124; and cases cited therein. But, the First Court went on to explain that alibi evidence merely negates an element of the offense. Because the alibi evidence generally focuses on disproving the presence of a defendant at the place and time of the crime, which is an essential element of the State's case, the First Court of Appeals overruled appellant's point of error. Id., 945 S.W.2d at 124.

In his petition and brief before this Court, appellant argues the jury should have been instructed on his alibi defense. He contends the adoption of the Model Penal Code in Texas, and its system for codifying the defenses and affirmative defenses available for defendants, did not eliminate his entitlement to a separate special instruction on the defense of alibi when it is raised by the evidence. Appellant points out the appellate courts of this State are divided over this issue. Some Courts of Appeal agreed with the First Court in this case that a defendant is not entitled to an instruction on the defense of alibi because it merely negates an essential element of the State's case. Holliman v. State, 879 S.W.2d 85, 87 (Tex.App.--Houston [14th Dist.] 1994, no pet.); and Villarreal v. State, 821 S.W.2d 682, 684-686 (Tex.App.--San Antonio 1991, no pet.). Others have stated that a defendant is entitled to an instruction on alibi when that defense is raised by the evidence. Rogers v. State, 662 S.W.2d 13, 18-19 (Tex.App.--Tyler 1983, pet. ref'd)("A charge on alibi need not be given unless the evidence is inconsistent with the State's case which puts the defendant at the scene at the time of the commission of the offense."); Byers v. State, 641 S.W.2d 629, 634 (Tex.App.--Tyler 1982, no pet.); and Gates v. State, 628 S.W.2d 125, 126 (Tex.App.--Beaumont 1981, no pet.). We granted review to resolve this disagreement and to decide whether a defendant in this State is entitled to a jury instruction on alibi when it is raised by the evidence.

This Court concludes appellant was not entitled to an instruction on his defensive issue of alibi. We reach this conclusion because we find the defensive issue of alibi constitutes no more than a negation of an essential element of the State's burden of proof; specifically, that appellant committed the offense at the alleged time and location. We also base this conclusion upon the fact the Legislature has not made alibi a defense or an affirmative defense.

I. The Law of Alibi Before the 1973 Revision of the Penal Code.

Prior to the 1973 reformation of the Penal Code and adoption of the new Penal Code, see Act of May 23, 1973, 63d Leg., R.S., Ch. 399, 1973 Tex.Gen.Laws 883-996 (effective January 1, 1974), alibi was recognized as a defense which justified an instruction to the jury when it was raised by the evidence at trial. In Funk v. State, 84 Tex.Crim. 402, 208 S.W. 509, 513-14 (1919), the trial court charged the jury on the law of alibi, the law of principals ¹ and circumstantial evidence. The defendant complained the instruction on the law of principals was erroneous because the defense of alibi had arisen. This Court concluded the instruction on the law of alibi had not been required. "The defense of alibi arises where there is evidence that appellant is at a point where he could not have been guilty of participating in the offense." Funk, 208 S.W. at 514. Because the State pursued the theory that the defendant was guilty as a party to the offense, making proof of his presence at the scene unnecessary, this Court concluded the trial court was not required to give an instruction on the defense of alibi. Id.See also, West v. State, 140 Tex.Crim. 493, 145 S.W.2d 580, 588 (1940)(on rehearing)(wherein this Court concluded the defense of alibi arises only when evidence shows a defendant is at a point where he could not have been found guilty of participating in the offense).

In Anderson v. State, 147 Tex.Crim. 410, 181 S.W.2d 78, 79-80 (1944), this Court discussed the burden a defendant bears in proving a defense so as to receive a jury instruction on the defense of alibi. The defendant in Anderson sought as a defense that she qualified for one of the exceptions to the proscriptions against transporting liquor within the State. This Court stated, "it is not a new thing in the criminal procedure that the party on trial may be required to assume the burden of proof of his own defense." Id. at 79. Comparing the defendant's case to a case where a defendant is charged with murder and has the burden to prove the defense of alibi, this Court recognized that once a defendant has met his burden by creating a reasonable doubt in the minds of the jury, the trial court should give a proper charge on the defense of alibi in order to comply with a reasonable construction of the law. Anderson v. State, 181 S.W.2d at 79-80.

In Friga v. State, 488 S.W.2d 430, 434 (Tex.Crim.App.1973), this Court found the evidence did not sufficiently raise the defense of alibi and, consequently, that an instruction to the jury on alibi was not necessary. In Nelson v. State, 511 S.W.2d 18, 21 (Tex.Crim.App.1974), where the defendant was prosecuted for a 1971 murder, this Court concluded, "the defense of alibi arises when there is evidence that the accused is at a point where he could not have been guilty of participating in the offense." As can be seen from these cases, the law which predated the enactment of the 1974 revisions to the Penal Code provided that a defendant was entitled to an instruction on...