Rogers v. State
| Decision Date | 21 May 2003 |
| Docket Number | No. 1412-01.,1412-01. |
| Citation | 105 S.W.3d 630 |
| Parties | Bobby Ray ROGERS, Appellant, v. The STATE of Texas. |
| Court | Texas Court of Criminal Appeals |
John H. Hagler, Dallas, for appellant.
Lisa Braxton Smith, Assistant District Attorney, Dallas, Matthew Paul, State's Attorney, Austin, for State.
A jury convicted Bobby Ray Rogers of murdering his estranged wife and sentenced him to life in prison. On appeal, the court of appeals reversed appellant's conviction and remanded his case for a new trial.1 We granted the State's petition for discretionary review to determine: 1) whether the court of appeals correctly held that appellant's trial request for an "accident instruction" was equivalent to a request for a jury instruction on "voluntary conduct"; and if so, 2) whether the court of appeals was then correct to apply the Almanza2 "some harm" standard of review.3
We find that: 1) the defensive theories contemplated by the terms "accident" and "involuntary act" are not the same; 2) the trial judge could not be expected to divine that counsel actually wanted an instruction on voluntary conduct when he requested an "accident instruction;" and, therefore, 3) the court of appeals incorrectly applied the Almanza "some harm" standard of review. Accordingly, we reverse the court of appeals and remand the case for further proceedings.
Appellant and his estranged wife, Debra Rogers, had a rocky relationship. Approximately a year before Debra's death, the couple separated, and appellant stayed with his sister, while Debra moved in with her mother. Although they were living apart, appellant and his wife continued to see each other regularly. They often argued when they were together. Appellant testified and admitted that he shot his wife, but stated that the shooting was "an accident" that happened during a struggle over the gun.
Appellant testified that Debra called him that afternoon, saying that she was depressed and wanted to talk to him. Debra picked appellant up, they stopped to buy beer and a few groceries, and they ended up at Debra's mother's house around 3 p.m. Appellant made dinner for the three of them. Afterwards, appellant and Debra went to her room to watch television. Debra watched from her bed, while appellant lay on a pallet on the floor.
The couple began to argue over appellant's relationship with his first wife. Debra accused him of renewing that relationship, which appellant denied. Appellant testified that he asked Debra to take him home and he went outside, but Debra did not follow. After smoking a cigarette, Appellant returned to the bedroom where Debra was still sitting on her bed. Appellant lay down again on the pallet and they both fell asleep for a little while.
After they woke up, they began to argue again. According to appellant, Debra reached under the foot of the bed for her gun, saying that she "was going to pop" him. Appellant stated that Debra "reached for the gun and I reached for it and got it and she grabbed my arm and it went off." When asked by defense counsel:
Q. Did you mean to kill [your wife]`?
A. No. I — I mean if I did, I would be man enough to tell.
Did you mean to pull the trigger?
A. I didn't mean to pull the trigger. It was just, you know, after she reached[,] hit my arm and I was already getting up from the bed, it went off.
Q. You got the gun and you were getting up. You were getting up from the pallet?
A. And it went off.
Q. Did she — she hit your arm?
A. Yes. She was grabbing my arm like that.4
The prosecutor then cross-examined appellant:
Q. You grabbed the gun?
A. After she bent over for it, yes. Q. How did you grab the gun?
A. I just picked it up normal, just like that.
Q. Did you put your hand on that trigger?
A. It was on the trigger.
Q. Did you use both hands?
A. I didn't use both hands, I don't think.
Q. But you sure got hold [sic] of that gun?
A. Yes. I was trying to get it to keep her from getting it.
Q. Why — at that point when you have that gun in your hand why didn't you just bring your arm down just like this and turn and walk around?
A. When I was coming up with the gun like that she hit my wrist. I was like — she was grabbing my wrist.
Q. Sir, did you cock that gun?
A. No, I didn't.
Q. You didn't cock the gun?
A. No.
Q. You actually had to make an effort and pull that trigger; is that right?5
A. It seemed like when she grabbed my wrist, yes, to keep her getting it.
Q. How did she grab your wrist?
A. Did like that, gun went off ....
Q. Let me back up a little bit, sir. She was sitting up?
A. She was.
Q. She grabbed your arm?
A. She hit my arm as I was coming out from under the bed with the gun. I didn't know how I had the gun. I was just trying to get it and it went off.
After seeing that Debra had been shot in the forehead, appellant called 911 to say that "someone had been shot," then he put the gun in his pocket and drove off in Debra's car. He soon stopped, went up to a neighbor's house and told them "I just shot my wife." He then went to another friend's house, told him he had shot his wife, wanted to leave town, and asked the friend to hide Debra's gun for him. When the friend refused to hide the gun, appellant dumped it in the trash behind the friend's mobile home. Appellant then drove 150 miles to his brother's home and told his brother that he had shot Debra. He did not tell any of these people that the shooting was "an accident."
In rebuttal, the State called Deputy David Utsey, to whom appellant had later surrendered himself in Freestone County and to whom he had given a written statement. That statement included the following:
On February — on Friday, June 18th, 1999, [Debra] called me at our house at 3121 Palo Alto. She was crying, saying she was depressed. She come over and picked me up and then we went back to her mother's place.
After talking with her she cheered up. She laid down and took a nap. One of her friends come by to see her. The friend looked in on her and she was still asleep. I took her friend Teresa home.
When I got back my wife was on the porch of her mother's house. She looked angry and tired. She asked me to go get a beer. I went and got a beer and came back. I fixed her and her mother something to eat. She started fussing and arguing that I was sleeping with my ex-wife Mary Ann Robinson.
One thing led to another. I asked her to take me home. She said she was full. I know that she had been drinking a good bit. She told me that she was going to pop me. By this I knew that she was going to shoot me. She has pulled a gun several times in the past.
She was on her way to the bedroom. I knew that she had it in there because she was walking fast. I went into the bedroom and found her reaching under the bed. She pulled a pistol out from under the bed and I grabbed it from her. As soon as I got the gun, I shot her. She fell on the bed.
Immediately after Deputy Utsey's testimony, both sides rested, and the trial judge asked defense counsel whether she had any objections to the charge. Defense counsel replied:
The court of appeals stated that:
While the defense of accident is no longer present in the penal code, the Court of Criminal Appeals has long held that homicide that is not the result of voluntary conduct is not to be criminally punished. The defense of "accident" is encompassed within the penal code's general culpability requirements .... A defendant is entitled to a charge on the voluntariness of his acts when warranted by the evidence, whether the evidence is strong, feeble, unimpeached, or contradicted, and even if the trial court is of the opinion that the testimony is not entitled to belief. The defendant's testimony alone may be sufficient to raise a defensive theory requiring a charge. To be entitled to the charge, there must be evidence of an independent event such as the conduct of a third party that could have precipitated the incident.6
The court of appeals then concluded that appellant's testimony "raise[d] the issue of whether appellant voluntarily shot Debra or whether Debra's own conduct precipitated the incident" and that the trial court erred in not giving the requested jury instruction.7 Finding that appellant had timely objected to the charge error, the court of appeals then conducted a harm analysis under Almanza `s "some harm" standard:8
Here, if the jury had been charged on the issue of voluntariness and found appellant did not shoot his wife voluntarily, he would have been entitled to acquittal. Thus, we conclude the charge error in this case resulted in some harm to appellant.9
Using this standard, the court of appeals sustained appellant's point of error, reversed his murder conviction, and remanded the case for a new trial.
The State's argument in this Court breaks down into multiple parts:
1) The court of appeals erroneously equated appellant's request for an "accident" instruction with a request for a "voluntary act" instruction;
2) Appellant's request for an "accident" instruction, without more, was insufficient to alert...
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