Goff v. State

• Decision Date: 19 November 1986
• Docket Number: No. 656-83,656-83
• Citation: 720 S.W.2d 94
• Parties: Jackie GOFF, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 94

720 S.W.2d 94

Jackie GOFF, Appellant, v. The STATE of Texas, Appellee.

No. 656-83.

Court of Criminal Appeals of Texas En Banc.

Nov. 19, 1986.

William W. Vance, court appointed on appeal, Bryan, for appellant.

Travis B. Bryan, III, Dist. Atty. and Cathleen R. Riedel, Asst. Dist. Atty., Bryan, Robert Huttash, State's Atty., Austin, for the State.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant petitions the Court to review the judgment of the Houston (14th) Court of Appeals affirming his conviction for murder. Goff v. State, 681 S.W.2d 619 (Tex.App.--Houston [14th] 1985). Having found that appellant had previously been convicted of a felony offense, the jury assessed punishment of ninety years confinement in the Texas Department of Corrections.

In a supplemental brief to the court of appeals appellant argued that the jury charge was fundamentally defective under this Court's holding in Cobarrubio v. State, 675 S.W.2d 749 (Tex.Cr.App.1984) and Jenkins v. State (Tex.Cr.App., Nos. 64,000-64,004, delivered February 16, 1983) (Motion for leave to file motion for rehearing in No. 64,004 pending). The court of appeals held that "the evidence did not raise the issue of voluntary manslaughter, and any error in the giving of such an instruction was to appellant's benefit and, therefore, harmless." 681 S.W.2d at 625. Appellant contends that the court of appeals erred in disposing of his contention in this manner, and this Court granted his petition for discretionary review to address this argument.

The jury charge in this case suffers from the same infirmity as did the charge that was found defective in Cobarrubio, supra, and Jenkins, supra, viz: it fails to place upon the State the burden of negating sudden passion in the paragraph of the charge applying the law of murder to the facts of the case. Thus there exists the "decided likelihood" the jury may have disposed of appellant's case without ever having considered the sudden passion issue, which, if raised by the evidence, is required to be refuted by the State beyond a reasonable doubt. Bradley v. State, 688 S.W.2d 847 (Tex.Cr.App.1985).

The opinion of the court of appeals recognized that the Jenkins decision was pending on motion for rehearing before this Court, and that no definitive statement had as yet issued from this Court on the question of whether a Cobarrubio deficiency would amount to fundamental error. However, the court of appeals did not feel compelled to await this Court's pronouncement in Jenkins, but proceeded under the somewhat paradoxical premise that any "fundamental" error in this case was harmless because the evidence failed to support the charge given on voluntary manslaughter.

Appellant counters that where this Court has found a fundamental defect in the court's charge, no determination of harm will be made as a prerequisite to reversal, and cites Gooden v. State, 576 S.W.2d 382 (Tex.Cr.App.1979).

In light of our recent decision in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), of which the court of appeals seems to have had some prescience, we find appellant's contention to lack merit. Because it is undisputed that no objection to the charge was made at trial, before required to reverse appellant's conviction we must find that, on the facts of the instant case, failure to give the jury instruction authorizing a conviction for murder in accordance with Cobarrubio, supra, was "so egregious and create[d] such harm that it deprive[d] accused of a fair and impartial trial." Almanza, 686 S.W.2d at 172, Article 38.19, V.A.C.C.P.

Upon review of the record in this cause we find that, even assuming that the issue of "sudden passion arising from an adequate cause" was raised by the evidence, as in Lawrence v. State, 700 S.W.2d 208, 213 (Tex.Cr.App.1985), "voluntary manslaughter is an incidental theory of the defense, [and thus] the subtle deletion of the State's burden of proof on the absence of sudden passion in the murder application paragraph cannot realistically be construed to inure to the [appellant's] egregious harm."

The indictment alleged, in relevant part, that appellant "unlawfully intentionally, intending to cause serious bodily injury to an individual, THOMAS KNOEDL, commit[ted] an act clearly dangerous to human life, to wit: cut and stab him with a knife thereby causing the death of said THOMAS KNOEDL[.]" On the morning of March 6, 1981, the deceased's body with sixteen stab wounds in it was discovered in a ditch across the highway from a club called the Blue Dolphin in Brazos County, south of College Station.

Testimony of the State's witnesses showed that about 11:00 p.m. on the night of March 5, appellant entered the Blue Dolphin with two or three other men, ordered drinks at the bar, and proceeded to a table. Later they were joined by Lisa Vause, a dancer at the club. Several times over the course of the night, Knoedl approached their table, apparently to talk to Vause. Finally a "disagreement" erupted between Knoedl and appellant, and there was a general "rush" to the door. After some apparent commotion on the "portico" just outside the door, the three or four men were seen pursuing Knoedl across an adjacent field. A short time later the men returned and had a few drinks before the club closed.

The State introduced an edited statement taken from appellant after his arrest. ¹ In this statement appellant admitted to "cut[ting]" Knoedl at least once in the "chest or stomach," apparently while on the portico, then chasing him, and eventually helping to discard the body in a ditch across the road. A pathologist testified that of the sixteen wounds found on the body, two stab wounds to the chest had punctured the lungs, and thus proved to be the direct cause of death. Several of the wounds were of a "defensive" nature, and all were consistent with a buck knife appellant was known to carry. Other witnesses relayed statements that had been made by appellant the morning after the killing that he had had to "cut" somebody. Evidence was presented of appellant's interstate flight, and of a plot to escape from the Brazos County jail after he was eventually captured.

Defensive evidence consisted entirely of appellant's testimony, which may of course suffice to raise both the defense of self defense and the issue of "sudden passion." Medlock v. State, 591 S.W.2d 485 (Tex.Cr.App.1980). Appellant testified he spent the afternoon and evening of March 5, 1981 drinking ² and playing pool with his brother, Kenny Goff, at Murphy's Bar in College Station. Appellant and his brother were joined at some point by the deceased, Knoedl, whom appellant had not known previously. Knoedl had also been drinking heavily. ³ When Knoedl continued to lose at pool, he began to get belligerent. Upon being warned by appellant, Knoedl quit bothering him but persisted in harassing appellant's brother until about 4:00 o'clock in the afternoon, when the bar began to fill up with customers. Later, appellant and his brother were joined by Eric Ryan, whom appellant knew by sight from his job.

Between 10:30 and 11:00 o'clock on the same night, appellant, his brother and Ryan left Murphy's Bar and proceeded to the Blue Dolphin. Their reason for going was to pick up Vause, the girlfriend of Mike Murray, who shared a house trailer with Vause, appellant and appellant's brother.

At the Blue Dolphin appellant approached the bar to order drinks and inquire about Vause, who was backstage dressing. Knoedl was also in the Blue Dolphin. When Vause emerged from backstage and appellant began to talk with her, Knoedl attempted to interrupt in order to speak with Vause. It appeared to appellant that Vause "didn't want to have anything to do with" Knoedl, so appellant told him to leave her alone. At this time Knoedl desisted, but was subsequently observed to be shouting at Vause as she danced. Vause joined appellant and his party at their table. Three or four times during the course of the night Knoedl approached the table in an attempt to speak with Vause, who sat on appellant's lap. Some pushing and name calling ensued between appellant and Knoedl. Knoedl made a statement indicating he intended to "kill" appellant, and at one point jabbed appellant in the ribs with an unspecified blunt object. Finally, Knoedl suggested that they go outside to fight.

At this point in appellant's direct testimony the following colloquy took place:

"Q: Okay. What did you do at that point?

A: I stood up.

Q: Where did you go?

A: Out the door.

Q: What were you thinking then?

A: I was thinking I would have to get him before he got me.

Q: All right. Now, what were you--How were you thinking? When you say: I was going to get him before he got me, how were you going to get him?

A: I figured when I walked out the front door I would hit him, I would hit him with the door. Because we was pretty close together.

Q: What did you think that was going to do, hitting him with the door?

A: I figured it would knock him off balance, then I could hit him.

Q: What actually happened?

A: When we walked out the door he was so close behind me when I turned around, he grabbed ahold of my T-shirt.

Q: What did you have on that night?

A: Pair of Levis and T-shirt.

Q: As you walked out the door and Tom Knoedl grabbed your T-shirt, what did you do then?

A: I tried to--I swung at him.

Q: Okay. And did he swing back at you, or what happened next?

A: Well, he still had ahold of my shirt, and we kind of went off balance.

Q: Did you fall down?

A: Yeah.

Q: Describe what happened next, Jackie, if you remember.

A: On the way to the ground and right when I hit the ground, I got stabbed in the leg.

Q: Okay.

A: And we was rolling around on the ground. That's when Eric Ryan started kicking this Tom dude. And then Tom got up, and him and Eric was fighting right then.

Q: Did you know that you had been stabbed at this point?

A: Yeah. I felt something in my leg.

Q: Did...