Noland v. State

Decision Date20 December 2007
Docket NumberNo. 01-06-00829-CR.,01-06-00829-CR.
Citation264 S.W.3d 144
PartiesBrent NOLAND, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

J. Hans Barcus, Cantrell, Ray, Maltsberger & Barcus, LLP, Huntsville, TX, for appellant.

Andria Bender, Asst. Dist. Atty., Anderson, TX, for the State of Texas.

Panel consists of Justices NUCHIA, JENNINGS, and KEYES.

OPINION

TERRY JENNINGS, Justice.

A jury found appellant, Brent Noland, guilty of the offense of murder1 and assessed his punishment at confinement for fifty-five years and a $10,000 fine. In four points of error, appellant contends that (1) the evidence is factually insufficient to support the jury's finding that he was not under the immediate influence of sudden passion arising from an adequate cause at the time of the offense, (2) his punishment is excessive under the Eighth Amendment of the United States Constitution,2 (3) the trial court erred in denying his motion for new trial without a hearing, and (4) section 19.02(d) of the Texas Penal Code3 violates the Sixth Amendment of the United States Constitution4 by placing the burden on the defendant to prove sudden passion.

We affirm.

Factual and Procedural Background

Kristen Smith, the sister of the complainant, Brandon Smith, testified that on October 16, 2004, she and the complainant, along with their family and friends, went to the Texas Renaissance Festival. In the late morning, the complainant met appellant, and they had a thirty-minute conversation after appellant asked to borrow a cellular telephone. Ms. Smith next saw appellant later that evening when she and the complainant exited the festival towards a park in order to watch a fireworks display. A man standing with appellant told the complainant that "he could get a hoe like [Ms. Smith] anywhere." In reply, the complainant "said something." Ms. Smith and the complainant's mother, however, told them to ignore him and move along, which they promptly did.

After the fireworks display, Ms. Smith and the complainant exited towards the parking lot and ran into appellant and his group. Brittany Erwin, a girl in appellant's group, and Ms. Smith started yelling at one another. Suddenly, Ms. Smith and Erwin started fighting with each other. The next thing that Ms. Smith remembered was "everybody running" and the complainant "lying on his right-hand side curled up," pointing at appellant and telling Ms. Smith to go get him. Ms. Smith went running after appellant, and, after she grabbed his arm to stop him, he threw her on the ground, causing her to sprain her ankle, and kicked her in the back. Appellant and his group got into their car and tried to run her over before driving off.

Joshua Hamm, the complainant's friend, testified that after Ms. Smith and Erwin started fighting each other, he saw the complainant "with his hands up," not fighting, and Hamm thought it best to break up the fight. After he separated the two girls, "everything . . . just started." Hamm started "hollering and actually hitting [himself] with . . . [juggling] sticks trying to scare everybody off." He last saw the complainant before the fight with "his hands down by his waist" and palms facing up.5 He next saw the complainant "on the ground curled up a little bit with [appellant] crouched over him and . . . [appellant's friend, Jonathan Damuth,] was stomping on his head and his chest and kicking him while he was on the ground." Therefore, Hamm grabbed Damuth. Hamm last saw appellant in a "squatting position" over the complainant. After Hamm tussled for a while with Damuth, everyone, including Damuth, took off. Hamm then saw that the complainant had been stabbed and was covered with blood.

Steven Lesher testified that he attended the festival with appellant and that, as appellant and he were leaving the festival at dusk, Erwin and Ms. Smith started to fight. James C. Bowman, a member of appellant's group, and the complainant attempted to separate the two girls. Hamm a member of the complainant's group, was swinging his juggling sticks and hitting himself in the legs, screaming, "We are all from the Navy[,] [and] we are going to kill you." Lesher never saw Hamm advance or hit anybody with the sticks.6 Lesher did not notice appellant and the complainant fighting "until probably a minute after it started." When he glanced in their direction, he saw "[appellant] on top of [the complainant] hitting him." Lesher thought that the complainant "was fighting back." Lesher was not sure how it stopped, but when appellant and he left, the complainant was just laying on the ground and not moving. In the car after the fight, appellant stated, "Damn it, fuck that mother fucker" and that he hoped the complainant was dead. Lesher noted that although he did not see the complainant stab appellant, appellant had been stabbed, and appellant told him after the fight that the complainant tried to kill him or stab him first.

Appellant testified that before attending the festival, he bought a knife for work. He stated that he always carried a knife because he worked as an electrician and it was practical for recreational purposes. Being underage, he then paid a friend to purchase him alcohol and went to Bowman's house to wait for Erwin to arrive before heading to the festival. At Bowman's house, appellant drank one beer, took two pills of xanax, and smoked marijuana. Bowman had given him seven pills of xanax, but he gave away the other five to Damuth, a friend. He then went to the festival and drank approximately six beers. He first met the complainant when he needed to borrow a cellular telephone, and a girl in the complainant's group provided him with one. He and the complainant "joked around" together before parting.

A few hours later, around 3:00 to 4:00 p.m., appellant met up with Ms. Smith and the complainant, and they went to the parking lot together and drank approximately two beers each. Appellant smoked more marijuana, while Ms. Smith and the complainant abstained. He went back to the festival, without Ms. Smith and the complainant, and again saw Ms. Smith and the complainant when he was leaving the festival. He put his arm around both Ms. Smith and the complainant in order to tell them about a party that night, and the complainant took offense that appellant had his arm around Ms. Smith. The complainant told appellant, "Get your hands off my sister." Appellant pulled away and told the complainant that he was "sorry," but the complainant "was still pissed[,] and he was yelling at me and cussing at me and stuff[,] and I'm trying to tell him [that] I'm sorry[,] and he wouldn't let it go[,] and we started arguing."

Appellant further testified that when Erwin and Ms. Smith started to fight, the complainant came from appellant's side and "just slugged" appellant in the head. They fought for a bit, and appellant got on top of the complainant and was punching him in the face. Suddenly, appellant saw his blood on his leg, and he thought that the complainant had a knife in his hand. Because he was "scared," appellant started stabbing the complainant with his knife. At this point, the complainant was on top of him because "[w]hen [the complainant] stabbed [appellant], [appellant] fell off and [the complainant] came at [appellant]." Appellant stated that it "sounds right" that the complainant suffered twenty-five knife wounds. Appellant did not take the complainant's knife with him, and he has not seen the knife again.

On cross-examination, appellant testified that when he and the complainant started fighting, although he could not exactly see what Hamm was waving because it was too dark, Hamm scared appellant because he was swinging his sticks and yelling that he was going to kill them. Appellant, however, later conceded that at no time was Hamm threatening him with the sticks, and he understood that the sticks were really just toy sticks. When asked to explain appellant's multiple stab wounds in the back, he stated, "I can't; I can't explain it; we were fighting and wrestling around. . . ."

Grimes County Sheriff's Department Investigator A. Jarvis testified that the complainant's autopsy revealed a foreign object in the complainant's body. The Southeast Texas Forensic Center removed the foreign object and discovered that it was the tip of a knife. A February 17, 2005 report confirmed that the silver knife tip came from the murder weapon, a lock-blade pocket knife. Southwestern Institute of Forensic Science Director Dr. Jeffrey Barnard testified that the complainant received thirteen stab wounds, specifically, eleven times in the back and one in the forearm and chest. The complainant also suffered twelve incise wounds.7 The cause of the complainant's death was from multiple stab wounds, mainly from the stab in the chest, which pierced the heart. The complainant also had a .22 blood alcohol content level.

Factual Sufficiency

In his first point of error, appellant argues that the evidence is factually insufficient to support the jury's finding8 that he was not under the influence of sudden passion arising from an adequate cause when he stabbed the complainant because he was "roughly told" to remove his arm from Ms. Smith; Ms. Smith "became engaged in a hair-pulling fight" with Erwin; Hamm "began threatening death," waiving his sticks around; and this "scared" appellant and made him "fear[ ] for his safety." Appellant also relies on his own testimony that the complainant initiated the fight when he "came up and slugged [him] from the side" in the head, "hand-to-hand combat" ensued, and the complainant first "stabbed [him] in the leg with a knife."

When a defendant challenges the factual sufficiency of the rejection of a defensive theory, we review all of the evidence in a neutral light and ask whether the State's evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if...

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