Rainey v. State, 03-95-00573-CR

• Decision Date: 24 July 1997
• Docket Number: No. 03-95-00573-CR,03-95-00573-CR
• Parties: Chad Steven RAINEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 537

949 S.W.2d 537

Chad Steven RAINEY, Appellant, v. The STATE of Texas, Appellee.

No. 03-95-00573-CR.

Court of Appeals of Texas,

Austin.

July 24, 1997.

Richard D. Mock, F.N. "Trey" Brown, III, Law Offices of Mock & Brown, Burnet, for Appellant.

Sam Oatman, District Attorney, John Morgan Minton, Assistant District Attorney, for State.

Before CARROLL, C.J., and ABOUSSIE and B.A. SMITH, JJ.

CARROLL, Chief Justice.

A jury convicted appellant Chad Steven Rainey of murder under Texas Penal Code section 19.02(b) and sentenced him to confinement for forty years. See Tex. Penal Code Ann. § 19.02(b) (West 1994). Rainey appeals his conviction in nine points of error. We will affirm the judgment of conviction.

BACKGROUND

According to the State's witnesses, the facts of this case are as follows: Larry Washington, the victim, was a homeless man who lived under a bridge in Marble Falls, Texas. Rainey and his younger sister also lived in Marble Falls and had a friend named Sue Pearson. About a month before Christmas of 1994, Rainey's sister told Pearson that Washington had raped her. Pearson told Rainey the news on Christmas morning. A few days after Christmas, Rainey allegedly left Pearson's apartment and went to the bridge where Washington lived to confront Washington. According to the State, Rainey killed Washington by stabbing him and then mutilated the body by cutting the skin from Washington's genitals and putting it in Washington's mouth. Rainey then returned to Pearson's apartment covered in blood. He allegedly cleaned up, altered the soles of his shoes, boiled the murder weapon, and told Benford Gibson, Pearson's boyfriend, what he had done. Three boys discovered Washington's body near the bridge on December 30, 1994. Rainey was subsequently arrested for, charged with, convicted of, and sentenced to imprisonment for intentionally and knowingly killing Washington.

Rainey appeals his conviction, alleging: (1) section 19.02(d) of the Texas Penal Code, a statute allowing the defense to introduce evidence of sudden passion to mitigate punishment, is unconstitutional; (2) the evidence is factually insufficient to support the jury's finding that he did not act under the influence of sudden passion; (3) the court erred in refusing to include certain defensive instructions in the charge; (4) the court erred in denying his motion to suppress certain evidence; and (5) the court erred in allowing certain witnesses to testify at the punishment phase of trial.

DISCUSSION

Constitutionality of Texas Penal Code § 19.02(d)

In his first four points of error, Rainey challenges the constitutionality of subsection (d) of section 19.02 of the Texas Penal Code, the statute that sets out the offense of murder. See Tex. Penal Code Ann. § 19.02 (West 1994). Section 19.02 reads in relevant part:

(b) A person commits an offense if he:

(1) intentionally or knowingly causes the death of an individual....

* * * * * *

(d) At the punishment stage 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 Id. Unless sudden passion is proven, the offense is a felony of the first degree. Tex. Penal Code Ann. § 19.02(c).

preponderance of the evidence, the offense is a felony of the second degree.

Before September 1994, the issue of sudden passion related to the issue of guilt rather than punishment. When the evidence raised the issue, it became an element the State was required to disprove beyond a reasonable doubt during the guilt phase of trial. See Act of May 23, 1973, 63d Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883 (Tex. Penal Code § 19.04, amended by Act of May 28, 1973, 63d Leg., R.S., ch. 426, art. 2, § 1, 1973 Tex. Gen. Laws 1123 and Act of May 29, 1987, 70th Leg., R.S., ch. 307, § 1, 1987 Tex. Gen. Laws 1698, since amended); Ruiz v. State, 753 S.W.2d 681 (Tex.Crim.App.1988); Lawrence v. State, 700 S.W.2d 208, 211-13 (Tex.Crim.App.1985). One who caused another's death under the influence of sudden passion was guilty of the separate crime called "voluntary manslaughter." See id. The legislature changed the statute presumably in response to criticism of the law. See, e.g., Johnson v. State, 815 S.W.2d 707, 710 n. 3 (Tex.Crim.App.1991). Pursuant to the 1994 amendments, "voluntary manslaughter" is no longer a separate crime. The State no longer must disprove as an element of the offense that a defendant acted by reason of sudden passion arising from an adequate cause. The existence of sudden passion is simply a mitigating factor relevant to punishment, and the burden of proving sudden passion by a preponderance of the evidence during the punishment phase rests on the defendant. See Tex. Penal Code Ann. § 19.02(d).

In point of error one, Rainey argues section 19.02(d) violates his right to substantive due process under the federal and state constitutions by shifting the burden onto him to prove the existence of sudden passion. See U.S. Const. amends. V, XIV; Tex. Const. art. I, § 19. This Court recently held that section 19.02(d) does not violate the substantive due process provisions of either constitution. See Robinson v. State, 945 S.W.2d 336, 342 (Tex.App.--Austin 1997, pet. requested); see also Kreyssig v. State, 935 S.W.2d 886, 891 (Tex.App.--Texarkana 1996, pet. ref'd). Accordingly, we overrule Rainey's first point of error.

In point of error two, Rainey argues section 19.02(d) violates his right to a grand jury indictment and his right to know the nature and cause of the accusation against him. See Tex. Const. art. I, § 10. Rainey reasons that a grand jury might believe that a defendant is guilty only of murder in the second degree under section 19.02(d) but would be required nonetheless to indict the defendant for first degree murder under section 19.02(b). He argues a defendant indicted under those circumstances is not given notice of the charges against him. Rainey's argument is really a challenge to the sufficiency of the indictment. He did not raise this issue before the trial court; therefore, he has failed to preserve it for appellate review. See Fisher v. State, 887 S.W.2d 49, 54 (Tex.Crim.App.1994); see also Tex. Const. art. V, § 12; Tex.Code Crim. Proc. Ann. art. 1.14(b) (West Supp.1997). We overrule Rainey's second point of error.

In point of error three, Rainey contends section 19.02(d) violates the separation of powers doctrine by abridging the duties of district attorneys and grand juries. See Tex. Const. art. II, § 1. Specifically, Rainey argues the legislature may not preclude the district attorney from charging and the grand jury from indicting for "voluntary manslaughter" when the facts support such a charge or indictment. We disagree. It is the district attorney's principal duty to prosecute violations of criminal law. See Tex. Const. art. V, § 21; Shepperd v. Alaniz, 303 S.W.2d 846, 850 (Tex.Civ.App.--San Antonio 1957, no writ). Likewise, the grand jury is empowered only to inquire into violations of criminal laws. See Tex.Code Crim. Proc. Ann. art. 20.09 (West 1977); Alt v. State, 83 Tex.Crim. 337, 203 S.W. 53, 54 (App.1918). The legislature, not the district attorney or grand jury, has the power to define criminal laws. See Tex. Const. art. III, § 1; see also Gross v. State, 165 Tex.Crim. 463, 308 S.W.2d 54, 55 (App.1957). Because the legislature has chosen to eliminate "voluntary manslaughter" from the list of crimes and make "sudden passion" a mitigating factor relevant only to punishment, neither the grand jury In his fourth point of error, Rainey contends section 19.02(d) violates his right against self incrimination under both the state and federal constitutions. See U.S. Const. amends. V, XIV; Tex. Const. art. I, § 10. Rainey argues shifting the burden of proving "sudden passion" to him at the punishment phase somehow forced him to incriminate himself in order to avail himself of the "sudden passion" defense. ¹

                nor the district attorney has the power to charge someone with "voluntary manslaughter."   We overrule Rainey's third point of error
                

Section 19.02(d) does not violate Rainey's right against self-incrimination. A defendant can avail himself of the "defense" to punishment afforded by section 19.02(d) without taking the stand. In fact, Rainey did just that. He called his sister and mother as witnesses. Both witnesses testified that Rainey was extremely protective of his sister and was distraught upon hearing that his sister had been raped. Rainey presumably offered this evidence to show he murdered Larry Washington under the influence of sudden passion. Rainey never testified himself. We fail to see how section 19.02(d) forced Rainey, or would force any defendant, into incriminating himself or herself. We overrule point of error four.

Factual Sufficiency of the Evidence

The jury failed to find during the punishment phase that Rainey acted under the influence of sudden passion. In his fifth point of error, Rainey contends the evidence is factually insufficient to support that verdict. In reviewing the factual sufficiency of the evidence, we consider all the evidence and determine whether the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996); Stone v. State, 823 S.W.2d 375, 381 (Tex.App.--Austin 1992, pet. ref'd untimely filed).

The evidence supports the jury's answer. Sue Pearson testified she told Rainey that Washington had raped Rainey's sister. According to Pearson, when Rainey heard the allegations he proclaimed he would kill Washington. This event took place several days before the murder occurred. Furthermore, Benford Gibson testified he was present at the apartment when Rainey returned after committing the murder. According to Gibson, Rainey was calm enough when he returned to attempt to alter the...