Lawrence v. State

• Decision Date: 06 November 1985
• Docket Number: No. 603-83,603-83
• Parties: Betty Thornton LAWRENCE, Appellant, v. The STATE OF Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 208

700 S.W.2d 208

Betty Thornton LAWRENCE, Appellant, v. The STATE OF Texas, Appellee.

No. 603-83.

Court of Criminal Appeals of Texas, En Banc.

Nov. 6, 1985.

Frank W. Sullivan, III, Fort Worth, for appellant.

Arthur C. Eads, Dist. Atty., and James T. Russell, Asst. Dist. Atty., Belton, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted by a jury for the offense of murder. V.T.C.A., Penal Code § 19.02. The jury assessed a term of 25 years in the Texas Department of Corrections. The Austin Court of Appeals reversed appellant's conviction, finding the evidence insufficient to sustain a murder conviction. The court of appeals also found that the jury charge was "fundamentally defective," see Cobarrubio v. State, 675 S.W.2d 749 (Tex.Cr.App.1984), and ordered "the judgment of conviction for murder reversed and the indictment for murder dismissed." However, since the court of appeals further found the evidence sufficient to show voluntary manslaughter or any other lesser included offense, that court held that the dismissal of the murder indictment was "without prejudice" to further prosecution for a lesser included offense." Lawrence v. State, 699 S.W.2d 229 (Tex.App.--Austin, 1983).

We granted the State's petition for discretionary review to determine the correctness of the court of appeals holding that the evidence was insufficient to prove appellant guilty of murder. We will also review the court of appeals holding that the charge to the jury on the law of murder is "fundamentally defective." We conduct this latter review because of this Court's recent decision in ALMANZA V. STATE , 686 S.W.2D 157 (TEX.CR.APP.1985)¹. After reviewing the entire record and the law applicable to the case, we will reverse the court of appeals and affirm appellant's conviction.

I. FACTS ²

A detailed recitation of the facts is necessary to the disposition of the case. Appellant and the deceased were live-in lovers. On August 1, 1979, at approximately 2:30 p.m. they met at the Hitching Post Bar in Killeen. They drank together until approximately 4:30 p.m., at which time they returned to their apartment and appellant fixed dinner for the two of them. They then returned to the Hitching Post. Sometime between 7:30 and 8:00 p.m., the couple went to the Waterhole No. 3, another drinking establishment.

At approximately 9:30 p.m. the appellant left the bar to pick up her son from a baby-sitter. After taking care of her son, she returned to the Waterhole. When she walked into the bar, she observed the deceased dancing with another woman. According to an employee of the bar, appellant knocked the woman to the floor. Appellant claimed she merely pushed the woman and the woman stumbled and fell. A bartender testified that appellant, shortly after the altercation with the deceased's dancing partner, was very angry and upset and repeatedly threatened to "shoot his peter off." Appellant specifically denied being very angry or upset and also denied making any threats to harm the deceased.

Appellant pleaded with the deceased to leave the bar. Both deceased and the appellant then left the Waterhole and drove to their apartment. The deceased refused to go into the apartment; appellant replied that she was going to go with deceased if he was going out. Both parties then returned in separate vehicles to the Hitching Post. It being near closing time, the bar owner refused to serve the deceased and asked appellant to drive deceased home. In the owner's words, deceased was stumbling, falling-down drunk.

Appellant drove deceased home. She testified that the deceased was hostile and angry because appellant refused to apologize to "the woman." Appellant enlisted the assistance of Paul Miller, a next door neighbor, in getting the deceased out of the car and into the house.

According to appellant's testimony, she was cleaning up when the deceased grabbed her and threw her on the couch Miller and Graves both testified that when they entered the apartment appellant was on the couch and the deceased was standing five to seven feet away from appellant. Appellant yelled "Paul, keep him away from me" and Paul Miller grabbed the deceased. Martha Graves heard the deceased say "shut up, or I'm going to knock your damn head off." ³ At this point appellant walked over the couch and into a bathroom where she retrieved her revolver. She entered the room and fired 2 shots, one of which fatally struck the deceased in the stomach. Paul Miller further testified that when appellant fired the first shot he shoved the deceased behind him and out of the way. Appellant in turn took a step around Paul Miller and shot a second time, this time hitting the deceased. Miller and Graves left immediately. Appellant assisted the deceased outside the apartment. Police were called immediately, and upon their arrival found the appellant sitting on the ground holding deceased's head in her lap. An emergency room doctor testified that the deceased died of massive bleeding due to the gunshot wound, and furthermore that deceased's blood-alcohol content measured .221 milligrams per cent by weight and that .500 milligrams per cent would be lethal to most people.

and started beating her with his fist. She screamed and Paul Miller and Martha Graves, Paul Miller's roommate, came running over. Appellant claimed to have no recollection of the events following Paul Miller's entrance to the apartment. All appellant could recall was that when the deceased was beating her she was scared.

Neither the eyewitnesses nor the investigating officers noticed any bruising on appellant the night of the offense. A police officer, who was a personal friend of appellant and the deceased, noticed a large bruise on appellant at around 10 p.m., some twenty hours after the shooting and alleged beating. A doctor who examined appellant 5 days after the shooting found bruising that was consistent with the appellant having been injured 3-7 days before the examination.

Appellant attempted to paint a picture of the deceased as a violent man; however, no other testimony supports this view. The neighbors both testified that the evening of the homicide was the first time they had heard any fighting between appellant and the deceased. Other witnesses who frequented the same bars as deceased described the deceased as easy-going and non-violent, although sometimes boisterous. Appellant's ex-husband testified he saw the appellant with scratches on her neck 2 days before the homicide. There was no evidence indicating that the apartment was in disarray as one would expect if there had been an altercation, and no one ever saw the deceased strike the appellant, either on the night in question or anytime before that night.

II. SUFFICIENCY OF THE EVIDENCE TO RAISE THE ISSUE OF VOLUNTARY MANSLAUGHTER AND NEGATION OF THE SAME BY THE STATE

Appellant was charged with murder in a two paragraph indictment, each paragraph alleging a different manner of committing murder. See V.T.C.A., Penal Code § 19.02(a)(1) and (a)(2). This Court has held that if the issue of sudden passion is raised, then the State must disprove beyond a reasonable doubt the existence of sudden passion. Bradley v. State, 688 S.W.2d 847 (Tex.Cr.App.1985). Additionally, this Court has repeatedly held that evidence from any source may raise the issue of sudden passion. Gonzales v. State, 546 S.W.2d 617 (Tex.Cr.App.1977). Testimony that the defendant was extremely mad or upset can raise the issue. Schoelman v. State, 644 S.W.2d 727 (Tex.Cr.App.1983). Moreover, in some instances, the evidence can raise both self-defense and voluntary manslaughter. Medlock v. State, 591 S.W.2d 485 (Tex.Cr.App.1980). While former provocation, standing alone, will not suffice, see V.T.C.A., Penal Code § 19.04(b) supra, former If we were to look at only the appellant's testimony, we would find no issue of sudden passion. Appellant denied being angry or upset at the deceased. She claimed simple fear, and in fact, denied having any recollection of the shooting. This testimony does not raise sudden passion. However, other witnesses testified that the appellant was in fact very angry and upset at the deceased's behavior earlier in the evening. This shows former provocation and, when coupled with the decedent's alleged beating of appellant immediately preceding the shooting, is sufficient to raise the issue of sudden passion. Thus, the State was required to prove beyond a reasonable doubt that appellant was not acting under the immediate influence of sudden passion. Bradley, supra.

provocation along with a showing of a defendant's agitated state of mind will raise the issue. Testimony that the defendant was in fear, standing alone, does not raise sudden passion. Daniels v. State, 645 S.W.2d 459 (Tex.Cr.App.1983). Thus before we can determine if the evidence is sufficient to sustain appellant's conviction for murder, we must determine if sudden passion is raised by the evidence.

Although we find there was sufficient evidence to raise the issue of voluntary manslaughter, there was more than sufficient evidence to convict appellant of murder. Appellant herself refuted any claim of voluntary manslaughter. Indeed, during closing argument, appellant's attorney argued that the facts presented a classic case of self-defense. ⁴ Voluntary manslaughter, as a defense to murder, seems to have appeared in the case as an afterthought. As the trier of fact, the jury determined the credibility of the witnesses and the weight to be given their testimony, and it was free to reject any or all of the testimony of any of the witnesses. Thomas v. State, 605 S.W.2d 290 (Tex.Cr.App.1980).

When reviewing sufficiency of the evidence questions, this Court will not substitute its judgment for that of the jury. This Court has previously found that:

"It is irrelevant whether we as a Court...