Hearne v. State, No. 2-05-291-CR (Tex. App. 9/7/2006)
| Decision Date | 07 September 2006 |
| Docket Number | No. 2-05-291-CR.,2-05-291-CR. |
| Parties | TYLER HUDSON HEARNE, Appellant v. THE STATE OF TEXAS, State. |
| Court | Texas Court of Appeals |
Appeal from Criminal District Court No. 1 of Tarrant County.
Panel F: LIVINGSTON, GARDNER, and WALKER, JJ.
Appellant Tyler Hudson Hearne appeals his conviction and eighty-year sentence for murder. In his first point, appellant contends that the trial court erred by failing to instruct the jury during the punishment phase on "sudden passion," which provides for a lesser punishment range. In appellant's second point, he complains that the trial court erred by conducting a conference with a juror outside the presence of appellant and his trial counsel. We affirm.
Appellant was charged with capital murder in the shooting death of his father, William Hearne. After appellant entered a plea of not guilty, the jury found him guilty of the lesser offense of murder and assessed his punishment at eighty years in the Institutional Division of the Texas Department of Criminal Justice.
In appellant's first point, he asserts that the trial court erred by failing to instruct the jury on sudden passion during the punishment phase. The State contends that appellant was not entitled to an instruction on sudden passion because there was no evidence of sudden passion arising from a legally adequate cause.
Section 19.02 of the penal code discusses the offense of murder. TEX. PENAL CODE ANN. § 19.02 (Vernon 2003). The pertinent parts of section 19.02 provide,
(a) In this section:
(1) "Adequate cause" means 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.
(2) "Sudden passion" means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.
. . . .
(d) At the punishment phase of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony in the second degree.
Id. § 19.02(a), (d).
If a defendant is convicted of murder, he may argue at punishment that he caused the death while under the immediate influence of sudden passion arising from an adequate cause. Trevino v. State, 100 S.W.3d 232, 237 (Tex. Crim. App. 2003). Sudden passion is "an excited and agitated mind at the time of the killing caused by an act of the deceased." Rayme v. State, 178 S.W.3d 21, 28 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd) (quotingHobson v. State, 644 S.W.2d 473, 478 n.10 (Tex. Crim. App. 1983)). Sudden passion is a mitigating circumstance that, if found by the jury to have been proven by a preponderance of the evidence, reduces the offense from a first degree felony to a second degree felony.McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005); see TEX. PENAL CODE ANN. § 19.02(d). Thus, before a defendant is allowed a jury instruction on sudden passion, he must prove that there was an adequate provocation; that a passion or an emotion such as fear, terror, anger, rage, or resentment existed; that the homicide occurred while the passion still existed and before there was reasonable opportunity for the passion to cool; and that there was a causal connection between the provocation, the passion, and the homicide. McKinney, 179 S.W.3d at 569. Thus, a sudden passion charge should have been given if some evidence shows that appellant's mental state rose beyond a bare claim of fear to render him incapable of rational thought and collected action. See Kennedy v. State, 193 S.W.3d 645, 654 (Tex. App.-Fort Worth 2006, pet. filed) ().
Appellant contends that the testimony of Ramon Salinas, Stephanie Teran, and Janis Davies demonstrated that he was entitled to an instruction on sudden passion. He asserts that the evidence shows that he "acted out of anger, rage, resentment and terror that [were] the product of his father's threats to essentially have him put in jail, or to go to a military school." Appellant points to Salinas's testimony that appellant admitted shooting his father after appellant's father screamed him for having drugs in the house. Salinas stated that appellant told him that his father flushed the drugs down the toilet and told appellant that he could either go to jail or go to a military school. Additionally, appellant asserts that Teran's testimony—that appellant admitted shooting his father one hour prior and that appellant was —raised the issue. Teran stated that appellant told her that his father was in the process of dialing 911 and appellant shot him before he dialed the last digit. Appellant contends that Davies' testimony regarding the shooting was the same as Teran's testimony.
However, these statements fail to show that appellant had adequate cause to shoot his father. As stated above, adequate cause means "cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper." TEX. PENAL CODE ANN. § 19.02(a)(1). The mere fact that a defendant acts in response to the provocation is not sufficient to warrant a charge on sudden passion. Trevino, 100 S.W.3d at 241. Appellant asserts that he was angry because his father told him that he could go to jail or military school. The evidence does not reflect fear or anger that was so strong and overpowering that it rendered appellant incapable of rational thought and collected action. See McKinney, 179 S.W.3d at 568. Therefore, we hold that the trial court did not err by refusing to submit an instruction on sudden passion because the evidence does not show that appellant had adequate cause to shoot his father. Thus, we overrule appellant's first point.
In appellant's second point, he contends that the trial court erred by conducting a private conference with a juror outside the presence of appellant and his trial counsel. On appeal, appellant asserts that the private conference violated 1) his rights under article 36.27 of the code of criminal procedure, which prescribes the method by which a trial court may communicate with a juror, 2) his right to be present for all phases of trial, and 3) his right to have a court reporter present to transcribe the proceedings. See TEX. CODE CRIM. PROC. ANN. arts. 33.03 (Vernon 1989), 36.27 (Vernon 1981); TEX. R. APP. P. 13.1.
On July 20, 2005, the third day of trial, the trial judge told the lawyers that she wanted to speak to them at the bench on the record. The trial judge disclosed that Juror Maddux wanted to talk with her. The trial judge told counsel,
This is what she said to me. She was tearful and she said that she was afraid that perhaps she had [not] filled out her questionnaire completely because she had forgotten to tell us that she had a stepson who was a victim — not a victim but who had an alcohol-related death by drowning.
. . . .
In fact, scoot up here a little bit. And [she] is very afraid that she has made [a] horrible problem with this case. I said, it's just not. I said that question is not on the questionnaire. She said, well, they asked about drugs, and then I said, most people don't consider alcohol a drug. She didn't even think about it until Dr. Krouse testified yesterday. And when her stepson had died, their family had gone to talk to Dr. Peerwani, so it was just all the memories coming back.
And she volunteered, without me even asking her, you know. So there you have it. I left her in my office because I'm thinking about taking her her questionnaire just to calm her because — and then I'll enter it in the record. I mean, they're all in the record anyway. But I mean, she feels like she's done something wrong. That's what this is about. And she didn't — because we harp so much on saying everything, you know, and report anything even if it's inadvertent, and I really do want them to do that.
And I think part of the result is my saying that to them, there's hardly a trial that goes by that I don't have to talk to a juror individually.
After learning about the private conference in the trial judge's chambers without a court reporter, appellant's counsel stated,
Judge, I haven't researched this point. I'm not quarreling with the Court's rendition of what the conversation was, but I'm not sure the Court talking to the juror and saying most people don't think alcohol is a drug and other conversations and there was no court reporter back there, that causes me some angst.
The trial judge then told appellant's counsel that he could explore the issue in a motion for new trial. Appellant's counsel moved for a mistrial "in an abundance of caution, because of the ex parte conversation with the juror and it's not recorded," and the trial court denied the motion. After denying the motion for mistrial, the trial judge continued talking about her conversation with the juror.
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