Harris v. State

• Decision Date: 13 September 1989
• Docket Number: No. 69634,69634
• Citation: 784 S.W.2d 5
• Parties: David Ray HARRIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 5

784 S.W.2d 5

David Ray HARRIS, Appellant, v. The STATE of Texas, Appellee.

No. 69634.

Court of Criminal Appeals of Texas En Banc.

Sept. 13, 1989.

Rehearing Denied Nov. 22, 1989.

Douglas M. Barlow, Beaumont, for appellant.

Tom Maness, Dist. Atty. & R.W. Fisher, Asst. Dist. Atty., Beaumont, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION

MILLER, Judge.

Appellant was convicted of capital murder. V.T.C.A. Penal Code § 19.03(a)(2). After the jury returned affirmative findings to the three special issues submitted pursuant to Art. 37.071, V.A.C.C.P., the trial court sentenced appellant to death. On direct appeal to this Court, appellant raises nineteen points of error. We affirm appellant's conviction.

Appellant does not challenge the sufficiency of the evidence to support his conviction, but a detailed recitation of the facts is necessary to the disposition of several points of error. Appellant was charged with intentionally causing the death of Mark Mays by shooting him with a firearm while in the course of committing or attempting to commit the offense of kidnapping of Roxanne Lockard. Lockard testified she was dating the deceased, who was separated from his wife, at the time of the offense. Lockard lived in Austin but was visiting the deceased in Beaumont. She arrived in Beaumont on Friday night, August 30, 1985. The following day, after the deceased got home from work, Lockard and the deceased sat at the pool, drank champagne, and celebrated Lockard's purchase of a new car. That evening the two went to dinner, and Lockard testified the deceased had one or two drinks of Crown Royal bourbon at dinner. They arrived back at the deceased's apartment sometime after midnight and went to bed.

Lockard testified she was awakened at about 2:30 a.m. on September 1, 1985, by a light shining in her eyes. She realized the light was from a flashlight and batted it away. The person holding the light, who was later identified by Lockard as appellant, told her he had a gun. At this point, appellant told the deceased to get out of bed and lock himself in the hallway bathroom, which he did. Appellant then directed Lockard to get out of bed and put on some clothes. He instructed her to enter his truck which was parked behind Lockard's car outside the back of the deceased's apartment. Lockard testified appellant looked directly into her face when they got in the truck.

Lockard next noticed the deceased had come out of the apartment and was standing in front of appellant's truck. She saw the deceased standing near the rear of her car with a gun in his hands. Lockard heard gunfire but could not determine who fired the first shot. She got out of the truck and did not see appellant, but she did notice the deceased behind her car, partially bent over like "he was throwing up." Realizing Mays, the deceased, had been shot, Lockard ran inside the apartment complex to find someone to call the police and an ambulance.

The Beaumont Police Department found the deceased lying in a pool of blood behind his apartment with his gun underneath him. An autopsy revealed the deceased died from multiple gunshot wounds, two of which were fatal. A trace metal test came back positive for both of the deceased's hands, and there was evidence the deceased shot his gun at least four times. The police also discovered five spent nine millimeter cartridges on both sides of Lockard's car near the rear of the vehicle and a bullet hole in the fence surrounding the deceased's apartment. The back door of the apartment had been pried open with a screwdriver which was found in the street behind Lockard's car.

Appellant testified at guilt/innocence that the screwdriver belonged to him but he did not pry open the door with it because the door was unlocked. Appellant went to the deceased's apartment to burglarize it, and he took a .38 caliber revolver with him because he thought "it would avoid anybody from getting hurt." Contrary to Lockard's testimony, appellant testified that the light from the hall awakened her and the deceased and that Lockard never "swatted" at the flashlight. Inside the apartment, the deceased acted "jumpy" as appellant told him to lock himself in the bathroom, and, in fact, the deceased came out of the bathroom two or three times wanting to talk with appellant, but appellant flatly refused. Fearing the deceased might attack him, appellant "used" Lockard to safely get out of the apartment.

Appellant testified that he did not recall if Lockard ever got into his truck, because as he opened the door on the driver's side he heard a loud noise and felt something hit him in the neck. He then realized the deceased had shot him and therefore ducked behind the door of his truck. According to appellant, the deceased then shot him again, hitting him in the shoulder. At this point, appellant fired back one time, ducked behind the door again, rose up and fired two more shots. Appellant stated he then repeated this sequence. Appellant testified he thought the deceased was trying to kill him and was going to shoot him through the open doors of the truck. Appellant ran to the front of the truck where he saw the deceased on his hands and knees and shot him one last time, this time from about ten feet away. Appellant thereafter got in his truck and drove away.

The pathologist who performed the autopsy on the deceased testified Mays had gunshot wounds on both arms, his right shoulder, which wound was disabling, and his face. The deceased also had two wounds to his chest area which were fatal. A forensic pathologist testified that the stippling on the deceased's body was consistent with the muzzle of the gun being within twenty-four inches of the deceased's body, and it could have been as close as twelve inches, when one of the fatal shots was fired.

After commission of the alleged offense, appellant requested an interview with Sam Kittrell, Assistant Chief of Police in Vidor. They talked at the Vidor police station on September 5, 1985, at 4:00 a.m. According to Kittrell, appellant had wounds on his right arm and side of his neck. Appellant told Kittrell what happened in Beaumont and directed authorities to the site where he disposed of the weapon, which had been stolen from a Beaumont resident earlier the night of the alleged offense. Appellant also spoke to officers with the Beaumont Police Department while in Vidor. Officer Patrick O'Quinn testified appellant told him he was "looking for a piece" when he entered the deceased's apartment and the deceased "acted crazy" but never threatened him. According to O'Quinn, appellant's first shot at the deceased missed, so he fired two more times, but the deceased was still moving so appellant fired once more to "finish him off."

In his nineteenth point of error, appellant claims the trial judge erred in failing to properly charge the jury on the murder/voluntary manslaughter issue in violation of Cobarrubio v. State, 675 S.W.2d 749 (Tex.Cr.App.1983). Appellant objected to the jury charge at trial. Appellant argues that the application paragraph on capital murder submitted at guilt/innocence failed to require the State to disprove that he acted as a result of sudden passion arising from an adequate cause and thereby shifted the burden of proof on this issue to him since the sudden passion "element" ¹ was submitted only in the application paragraph on voluntary manslaughter. ² The State argues that the deceased was acting in Lockard's defense and/or to prevent her kidnapping, and therefore, under the rationale of Lincecum v. State, 736 S.W.2d 673 (Tex.Cr.App.1987), cert. denied 486 U.S. 1061, 108 S.Ct. 2835, 100 L.Ed.2d 936 (1988), the issue of voluntary manslaughter was not raised. We agree with the State and therefore do not decide whether the trial court's charge on this issue violated Cobarrubio because appellant was not entitled to a jury charge on voluntary manslaughter.

In Lincecum, the defendant was charged with intentionally causing the death of the victim in the course of committing and attempting to commit the offense of kidnapping, robbery, or aggravated sexual assault. On appeal, the appellant argued that the trial court erred in failing to submit a charge to the jury on voluntary manslaughter. The defendant's confession showed that the victim stabbed him with his knife. The defendant argued this evidence sufficiently established sudden passion arising from an adequate cause under V.T.C.A. Penal Code § 19.04. ³ Assuming arguendo the defendant experienced sudden passion after he was stabbed by the victim, we held the defendant failed to show adequate cause. Thus, we stated:

Clearly, [the victim's] acts in stabbing appellant were justified in self-defense and in defense of her son. [citations omitted] Under the facts of this case, appellant may not claim that [the victim's] acts in self-defense gave rise to adequate cause so that he was justified in killing her, even if he was acting under sudden passion after the stabbing. Thus, the issue of voluntary manslaughter was not raised by the evidence.

Lincecum, 736 S.W.2d at 679.

The State argues, and we agree, this same rationale should apply in the present cause where the person who allegedly provoked appellant was acting to prevent commission of a felony under V.T.C.A. Penal Code § 9.32(3)(B) and in defense of a third person under V.T.C.A. Penal Code § 9.33. The evidence clearly indicates that appellant initiated the entire criminal episode which led to the deceased's death and that the deceased shot appellant in an attempt to prevent the aggravated kidnapping of Lockard. See V.T.C.A. Penal Code § 20.04(a)(2). Under §§ 9.32 and 9.33, supra, the deceased was justified in using deadly force in defense of himself and a third person, specifically Lockard. We will not consider the deceased's justified actions as an adequate cause for appellant's illegal acts. To so hold would allow criminals a...