Luck v. State

• Citation: 588 S.W.2d 371
• Decision Date: 24 October 1979
• Docket Number: No. 57365,57365
• Parties: Paul Jackson LUCK, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 371

588 S.W.2d 371

Paul Jackson LUCK, Appellant, v. The STATE of Texas, Appellee.

No. 57365.

Court of Criminal Appeals of Texas, En Banc.

Oct. 24, 1979.

Paul J. Chitwood, Dallas, for appellant.

Henry M. Wade, Dist. Atty., W. T. Westmoreland, Jr., Douglas J. Mulder and Jon Sparling, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for murder. After finding appellant guilty, the jury assessed punishment at life.

The deceased, Robert William Elledge, was killed by appellant in Dallas on January 9, 1976. The offense took place in appellant's home after an argument which culminated in the deceased being killed as a result of knife wounds and being shot in the head.

Fearing that his family would soon be home and discover the body of the deceased, appellant decided to dispose of the body. Being unable to move the body, appellant, with the aid of a hatchet and butcher knife, dismembered the body into nine pieces. He then loaded the pieces into his van and disposed of them in various locations in Dallas and Tarrant Counties.

The following day, appellant was arrested at his parents' home in Arlington. With his assistance, police officers were able to recover all portions of the body except for one thigh.

In his first ground of error, appellant maintains that testimony presented during cross-examination of a State's witness was perjured. He contends that the State knew of such perjury and took no actions to correct the witness' testimony.

During its case in chief, the State called the wife of the deceased, Margie Elledge. On direct examination, she testified concerning her husband's employment and the events on the day of the offense. On cross-examination, she denied any type of romantic involvement with appellant. She further denied authorship of several love letters addressed to appellant introduced into evidence by the defense.

The trial court appointed an attorney to counsel with the witness concerning the consequences of giving false testimony. The court further ordered the witness to give a handwriting exemplar. A questioned documents examiner testified that in his opinion, the letters in question were written by Elledge. Lastly, in an uncontradicted statement, the prosecutor informed the court outside the presence of the jury that two weeks prior to trial, he had told defense counsel that Elledge would deny authorship of the letters. At no point during her testimony on direct was the witness questioned by the State concerning her relationship, if any, with appellant.

The State is not allowed to obtain a conviction through the knowing use of perjured testimony. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217. Furthermore, reversal must follow if the prosecutor presents a false picture of the facts by failing to correct its own testimony when it becomes apparent that it was false. Napue v. Illinois, supra; Means v. State, 429 S.W.2d 490, Tex.Cr.App. Lastly, the appellant bears the burden of showing that the testimony used by the State was in fact perjured. See, Williams v. State, 513 S.W.2d 54, Tex.Cr.App.; Nelson v. State, 511 S.W.2d 18, Tex.Cr.App.

We need not address the issue of whether the witness' testimony was in fact perjured. Appellant has failed to meet the threshold issue of demonstrating that the State used such alleged perjured testimony in obtaining his conviction. As noted above, the testimony to which appellant complains was developed solely during his cross-examination of the witness. At no time did the State present any evidence of the presence or absence of a romantic involvement between appellant and Elledge. We find appellant's first ground of error to be without merit.

In his second ground of error, appellant contends that the trial court erred in admitting into evidence six photographs depicting various portions of the victim's body. Appellant maintains that such photographs were admitted solely to inflame the jury and prejudice appellant.

Officer J. W. Johnson of the Dallas Police Department testified that the photographs accurately portrayed various body parts found in locations throughout Dallas and Tarrant Counties.

A photograph is merely a graphic portrayal of oral testimony; thus, if a verbal description of the body at the scene of a homicide is admissible, then a photograph of the scene described is also admissible. Welch v. State,576 S.W.2d 638, Tex.Cr.App.; Cerda v. State, 557 S.W.2d 954, Tex.Cr.App.; Martin v. State, 475 S.W.2d 265, Tex.Cr.App. A verbal description of the body is admissible to throw light on the transaction and reveal its general nature. Campbell v. State, 525 S.W.2d 4, Tex.Cr.App. We find that the photographs in question depicting the physical condition of the body as well as the locations in which portions of the body were found were properly admitted into evidence. No error is shown.

In his third ground of error, appellant contends that the trial court erred in failing to submit his specially requested charge on the issue of voluntary manslaughter. Appellant maintains that the issue was raised when Officer Johnson related the sequences of events leading up to the murder as told to him by appellant.

Officer Johnson stated that appellant told him that on the day of the offense, the deceased came to appellant's home and accused appellant of having an affair with the wife of the deceased. After the deceased made this accusation, he pulled out a knife and told appellant that he was going to kill him. The deceased then stabbed appellant. The two men then scuffled with appellant eventually breaking away and going into the bathroom to obtain his gun. The deceased took the gun away from appellant and hit him on the head with the butt. At this point, appellant was able to get the knife away from the deceased and stab him. When the deceased dropped appellant's gun, appellant picked it up and shot the victim in the head. Johnson related that at no point did appellant indicate that he was in fear of the deceased. Appellant did not testify at trial. ¹

On original submission, the panel concluded that the trial court erred in failing to submit appellant's requested charge on the issue of voluntary manslaughter. In its motion for rehearing, the State contends that the evidence only presented the defensive issue of self-defense and that a charge on voluntary manslaughter was not required.

V.T.C.A. Penal Code, Sec. 19.04 provides:

"(a) A person commits an offense if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this code, except that he caused the death under the immediate influence of sudden passion arising from an adequate cause.

"(b) '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.

"(c) '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."

A charge on voluntary manslaughter is mandatory only when there is evidence that the defendant acted under the immediate influence of sudden passion arising from an adequate cause. Cerda v. State, supra; McCartney v. State, 542 S.W.2d 156, Tex.Cr.App. Where the issue of murder without malice is raised by the evidence, the fact that the evidence also raises the issue of self-defense and the accused is granted a requested instruction on the same does not deprive the accused of his right to an instruction on murder without malice. Ray v. State, 515 S.W.2d 664, Tex.Cr.App.; Monroe v. State, 501 S.W.2d 639, Tex.Cr.App. However, when the evidence only raises the issue of self-defense, a defendant is not entitled to a charge on voluntary manslaughter unless there is evidence that the offense occurred under the influence of sudden passion arising from an adequate cause. See, Jones v. State, 504 S.W.2d 906, Tex.Cr.App.; Foster v. State, 493 S.W.2d 812, Tex.Cr.App.

In the instant case, we can find no evidence presented at trial which would raise the issue that at the time of the offense, appellant was acting under the immediate influence of sudden passion arising from an adequate cause. While the initial attack by the deceased raised the issue of self-defense, there was no showing that appellant stabbed and shot the deceased under circumstances which would constitute the offense of voluntary manslaughter. We conclude that absent such evidence, the trial court did not err in refusing appellant's requested charge on voluntary manslaughter. Appellant's third ground of error is overruled.

In his fourth ground of error, appellant contends that the trial court erred in overruling his objection to the charge given to the jury concerning self-defense. Appellant maintains that the charge was erroneous in that it did not inform the jury that the State had to disprove beyond a reasonable doubt the issue of self-defense.

Appellant relies on Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 589. In Mullaney, the Supreme Court held that a Maine law which required the defendant to establish by a preponderance of the evidence that he acted in the heat of passion on sudden provocation, in order to reduce murder to manslaughter, violated due process requirements. The Court held that the due process clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case. Mullaney v. Wilbur, supra at 704, 95 S.Ct. 1881. In footnote 28 of Mullaney, supra, the Supreme Court stated: "Many states do require the defendant to show that there is 'some evidence'...