Johnson v. State

• Decision Date: 10 November 1981
• Docket Number: No. 65844,65844
• Citation: 629 S.W.2d 731
• Parties: Carl JOHNSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 731

629 S.W.2d 731

Carl JOHNSON, Appellant, v. The STATE of Texas, Appellee.

No. 65844.

Court of Criminal Appeals of Texas, En Banc.

Nov. 10, 1981.

Rehearing Denied Feb. 10, 1982.

Donald W. Rogers, Jr., Houston, court appointed on appeal, for appellant.

John B. Holmes, Jr., Dist. Atty., Molly Naylor, W. F. Roberts and Chris Lorenzen, Asst. Dist. Attys., Houston, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for capital murder. The jury, after answering affirmatively special issues one and two pursuant to Art. 37.071, Vernon's Ann.C.C.P., assessed punishment at death. The sufficiency of the evidence is not challenged.

By his third ground of error, appellant contends that the trial court committed fundamental error by failing to submit the issue of provocation on the part of the deceased pursuant to the mandatory provisions of Art. 37.071(b) (3), supra. Art. 37.071(b)(3) provides:

"(b) On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:

(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased."

The record of the guilt stage of the trial reflects that appellant and Carl Baltimore entered Wayne's Food Market and committed a robbery. Baltimore held a gun to the owner's head; the appellant shot the 75-year-old security guard five times. The men took the money from the cash register and fled. During the punishment phase of the trial, the prosecutor read the appellant's confession to the jury. ¹ Appellant contends for the first time on appeal that the following portion of his confession raises the issue of provocation,

"I put the pistol in my pants and went inside the store with Baltimore. When we got inside, I saw a black man who I knew was a security guard. I knew he was a security guard because I have bought beer at Wayne's Supermarket since I have been old enough. I have known this security guard most of my life. And I called this man Ed. I think that is his real name. I had my hand on the butt of the pistol, and the security guard saw me and pulled his pistol and shot at me one time. At that time I ducked and pulled my pistol, which was a .38 revolver, and shot in the direction of the security guard. I was not aiming at him and was not trying to kill him. I think I shot four or five times, but I am really not sure."

In Evans v. State, 601 S.W.2d 943 (Tex.Cr.App.1980), the Court found that evidence taken from the defendant's confession that the deceased fired a shot at the defendant before the defendant shot at the deceased raised the issue of provocation. In Evans the Court held that the refusal to submit special issue number three after defendant's timely request constituted reversible error. ²

In the instant case, as in Evans, appellant's statement in his confession that the deceased fired at appellant first raised the issue of provocation. It is settled that an accused is entitled to an instruction on every defensive matter raised by the evidence. The testimony of the defendant alone is sufficient to raise the issue. Garcia v. State, 605 S.W.2d 565 (Tex.Cr.App.1980).

Having determined that the issue of provocation was raised, the question is presented as to whether the failure of the trial court to submit the instruction sua sponte constitutes reversible error.

We agree with appellant that the language of Art. 37.07(b), supra, is mandatory. Thus, it was error to fail to submit the issue once raised. However, failure to object to the charge as submitted to the jury, waives all but fundamental error. See Duffy v. State, 567 S.W.2d 197 (Tex.Cr.App.1978). The appellant contends that the omission constitutes fundamental error. We disagree.

In Martinez v. State, 576 S.W.2d 854 (Tex.Cr.App.1979), the defendant, convicted of sexual abuse, contended that the court's charge was fundamentally erroneous because there was no instruction pursuant to Art. 38.07, Vernon's Ann.C.C.P. The Court held:

"Although the appellant failed to object to the court's charge at trial, he presently argues that the provisions of Article 38.07, supra, are mandatory and that the court's failure to sua sponte comply with its provisions renders the court's charge fundamentally defective.

We agree with the appellant insofar as he contends that the directives of Article 38.07, supra, are mandatory; however, we cannot agree that the court's failure to so instruct the jury, in absence of appellant's objection or requested instruction, constitutes fundamental error. See Pitts v. State, 569 S.W.2d 898 (Tex.Cr.App.1978)."

In Williams v. State, 622 S.W.2d 116 (1981), the murder defendant argued that Article 37.071, Vernon's Ann.C.C.P. violated the Sixth, Eighth and Fourteenth Amendments because it contained no provisions for directing and instructing the jury's consideration of mitigating circumstances at the punishment phase of the trial. The Court stated:

"It is appellant's contention that a 'charge on all mitigating evidence at the punishment phase of a capital murder trial is imperative if the jury is to give meaningful consideration to such evidence.' The appellant has failed to preserve the error now asserted on appeal. No objection to the court's charge or special requested instruction was filed. Articles 36.14 and 36.15. Absent such an objection or requested instruction, the trial court's failure to charge the jury as to the consideration of mitigating circumstances was not reversible error."

We hold that, in the absence of a timely objection, the failure to charge the jury on special issue number three does not constitute reversible error. The contention is overruled.

In ground of error one, appellant maintains that the trial court erred in excluding the testimony of one of his witnesses at the punishment stage, Shelvy Brown. Brown testified that he was the pastor at a Baptist church. He stated that he knew the appellant from visiting his grandmother and mother when they were ill and on other occasions. Brown also said that he visited appellant once when he was in jail. Defense counsel asked the witness,

"Q. Based on knowing him and knowing his family, do you know his reputation for being a peaceful, law-abiding citizen?

A. From the time I met him, it would be nice.

Q. Is that reputation good or bad?

A. Good."

On cross-examination the prosecutor asked Brown:

"Q. And who have you talked to about his reputation?

A. I talked to him personally, to his people, his sister.

Q. I am sure that they feel he has a good reputation. Who else have you talked to?

A. The only thing I can speak for was for how he was, he treated me. I never seen him violent as far as I am concerned.

Q. So, all you are saying is that you know what he told you and how he treated you, and that is what you are basing your statement on?

A. Not necessarily. I have been around him on occasion with the young people who were also there all together.

Q. Have you heard that this defendant, on the 18th day of December of 1976, was arrested for carrying a weapon?

MR. SCARDINO: We object to that question.

THE COURT: Overruled.

Q. (By Mr. Roberts) You may answer that question.

A. Yes, I did hear of that.

Q. You heard that?

A. Yes, sir.

Q. Did you hear that on the 11th day of October, 1978, this defendant was arrested for the offense of capital murder?

MR. SCARDINO: Again, we object to the form of the question.

THE COURT: Again it is overruled. You may answer it.

A. Yes, I have heard that also.

Q. (By Mr. Roberts) And have you heard that on the 11th day of October of 1978 this defendant committed the offense of aggravated robbery?

A. No, I didn't hear about any robbery.

MR. SCARDINO: Again, we object.

THE COURT: Overruled.

Q. (By Mr. Roberts) And have you heard that in your hometown of Livingston, Texas, on the 26th of January of 1976 this defendant was arrested for the offense of theft?

MR. SCARDINO: We object.

THE COURT: Overruled. You may answer.

A. In the hometown of Livingston, no, sir, I haven't heard of him in Livingston.

Q. (By Mr. Roberts) If you had heard all those things, would you still have the opinion that he has a good reputation?

A. I said as far as I know.

Q. Well, I'm asking you that question. If you had heard all those things, would you still have the opinion that he has a good reputation?

A. As far as I am concerned, he do have a good reputation.

Q. So, there is nothing I could say or nothing that you could hear that would change your mind about his reputation?

A. Not necessarily.

Q. You are basing your opinion about his reputation on just knowing him ?

A. On the time I met him and have been around him, that is all I can say.

Q. You are not basing your opinion about his reputation at all on what you have heard other people say ?

A. I can't base it on what I hear.

MR. ROBERTS: I object to his testimony, then. He doesn't know his reputation.

THE COURT: Sustained.

MR. ROBERTS: Would ask that the jury be ordered to disregard his testimony entirely.

THE COURT: The jury is so ordered to disregard the testimony of this witness. You may step down, sir." (Emphasis added)

The appellant did not object to the trial court's action, thus nothing is preserved for review. We note, however, that the trial court ruled properly; the witness stated that his knowledge of appellant's reputation was based upon his personal encounters with appellant, not upon appellant's reputation in the community. See Patrick v. State, 156 Tex.Cr.R. 449, 243 S.W.2d 707 (1951). Contention number one is overruled.

Next, the appellant contends it was improper for the prosecutor to ask Shelvy Brown if he had heard that on October 11, 1978 the appellant had been arrested for the offense of capital murder. Appellant argues that it has long been recognized that it is improper to...