Ross v. State, 05-87-01274-CR

• Decision Date: 28 December 1988
• Docket Number: No. 05-87-01274-CR,05-87-01274-CR
• Parties: Jimmy Ray ROSS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 897

763 S.W.2d 897

Jimmy Ray ROSS, Appellant, v. The STATE of Texas, Appellee.

No. 05-87-01274-CR.

Court of Appeals of Texas,

Dallas.

Dec. 28, 1988.

Rehearing Denied Jan. 31, 1989.

Douglas D. Mulder and John D. Nation, Dallas, for appellant.

Anne B. Wetherholt, Dallas, for appellee.

Before DEVANY, McCLUNG and LAGARDE, JJ.

LAGARDE, Justice.

Ross appeals his conviction by a jury for voluntary manslaughter. The jury assessed punishment at confinement for fifteen years and one day. In eight points of error, Ross asserts that the trial court erred: (1) in failing to submit a specially requested instruction on involuntary conduct; (2) in submitting its own incorrect instruction on involuntary conduct; (3) in failing to apply the law of self-defense to the facts of the lesser-included offense of voluntary manslaughter; (4) through (6) in admitting into evidence the pistol used in the commission of the offense since it was the fruit of an illegal search because the search was a warrantless search conducted, without consent, by officers who lacked authority or exigent circumstances to enter and search Ross's residence; (7) in admitting character evidence in the form of reputation testimony by Officer Mary Shepard and (8) in admitting character evidence in the form of reputation testimony by Officer James Pool. We conclude that all points are without merit; consequently, we affirm.

The facts in this case show that Ross and his date drove to the El Dorado Club in the early morning hours of February 1, 1987. Ross dropped his date off, parked his car, and talked to some friends outside. Ross then learned that the deceased had been bothering his date. When Ross became aware of this fact, he engaged the deceased in conversation. The conversation became heated and the deceased started to rise from his bar stool. Although the testimony conflicts as to whether the deceased reached into his jacket at this point to get a weapon, it is clear that as the deceased started to rise, Ross began to beat him with a pistol.

During the beating, Ross's pistol discharged at least twice. One shot penetrated the deceased's right shoulder area and subsequently caused his death. Following the shooting, Ross left the bar. The police were called, and they conducted an investigation during which they obtained the names of several witnesses but recovered no weapon from the scene.

On February 5, 1987, Dallas police investigator John Westphalen attempted to serve Ross with a felony arrest warrant for the murder. When Westphalen arrived at Ross's residence, Ross produced papers showing that he had turned himself in to the sheriff for the offense and had been released on bond.

On February 11, 1987, Westphalen and Investigator John Coughlin attempted to execute a felony arrest warrant on Ross for unlawfully carrying a weapon in the El Dorado Club. They proceeded to Ross's residence and knocked on the door. When no one answered, Westphalen and Coughlin contacted Dallas Security Force officers who let them into the residence with a pass key. During a warrantless search of the apartment, Coughlin found a pistol on a shelf in the bedroom closet; he seized the pistol. After it was identified by an expert witness as the murder weapon, the pistol was admitted into evidence during the trial. With these facts in mind, we address Ross's eight points of error.

Involuntary Conduct

In his first two points of error, Ross asserts that the trial court erred in refusing to submit his specially requested instruction on involuntary conduct and in submitting the court's own incorrect instruction on that issue. For two reasons, we disagree; consequently, we overrule points of error one and two.

First, there is no substantive difference between the charge given and the charge requested. Ross's requested instruction on involuntary conduct reads:

You are instructed that a person commits an offense only if he voluntarily engages in conduct, including an act. Conduct is not rendered involuntary simply because the person did not intend the result of his conduct. Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, Jimmy Ray Ross, Jr., did cause the death of Raymond Johnson by shooting him with a firearm as alleged in the indictment, but you further believe from the evidence, or you have a reasonable doubt thereof, that the shooting of the firearm was not the voluntary act or conduct of the defendant, you will acquit the Defendant and say by your verdict "not guilty."

(Emphasis added.) The instruction given by the trial court reads:

You are instructed that as a part of the law that before there can be a conviction for any offense set forth in the court's charge, it must be shown by the evidence beyond a reasonable doubt that the defendant voluntarily engaged in conduct, including an act. Conduct is not rendered involuntary simply because the person did not intend the result of his conduct.

You are therefore instructed that if you find that the deceased was killed as a result of a gunshot but you further believe that the discharge of the gun was not as a result of voluntary conduct by the defendant, Jimmy Ray Ross, Jr. or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict "not guilty."

(Emphasis added.) As stated by Ross, the only possible substantive difference in the two instructions is that the word "discharge" has been substituted for the word "shooting."

Ross claims that this one difference significantly alters the instruction and renders the court's denial of the requested instruction harmful error. We disagree. When a refused charge is substantially the same as or is adequately covered by the charge given, there is no harm in failure to give the refused charge. Hawkins v. State, 660 S.W.2d 65, 81-82 (Tex.Crim.App.1983). Thus, the court did not err in refusing the requested instruction or in submitting its own.

Second, the evidence did not raise the issue of involuntary conduct; therefore, the trial court was not required to include the instruction in its charge to the jury. See George v. State, 681 S.W.2d 43, 47 (Tex.Crim.App.1984); Williams v. State, 630 S.W.2d 640, 644 (Tex.Crim.App.1982); Gaona v. State, 733 S.W.2d 611, 617 (Tex.App.--Corpus Christi 1987, pet. ref'd); Pimental v. State, 710 S.W.2d 764, 773 (Tex.App.--San Antonio 1986, pet. ref'd).

In making this determination, it is helpful for us to place involuntary conduct instructions into historical perspective. Generally, involuntary conduct instructions have subsumed accident instructions. See Dockery v. State, 542 S.W.2d 644, 649-50 (Tex.Crim.App.1976). The 1974 Texas Penal Code does not contain an express defense of accident; however, the Court of Criminal Appeals has held that section 6.01(a) of the Code performs, at least in part, the same function as the former defense of accident. See Williams, 630 S.W.2d at 644; Dockery, 542 S.W.2d at 649-50; Pimental, 710 S.W.2d at 773. Section 6.01(a) provides: "A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession." TEX.PENAL CODE ANN. § 6.01(a) (Vernon Supp.1988).

Thus, if the issue of involuntary conduct is raised by the evidence, a jury may be charged that a defendant should be acquitted if there is a reasonable doubt as to whether he voluntarily engaged in the conduct for which he is accused. ¹ Williams, 630 S.W.2d at 644; Pimental, 710 S.W.2d at 773. Furthermore, the testimony of the defendant alone may raise the issue and entitle the defendant to an instruction. See Pimental, 710 S.W.2d at 773.

With these general legal principles in mind, we now focus on the specific facts before us. The facts in George v. State, 681 S.W.2d at 44, are extremely close to the instant case. ² In George, the thirteen-year-old victim was visiting the younger brothers of the appellant. George, 681 S.W.2d at 44. George demanded that the victim give him a dollar, but the victim refused. George then pointed a .22 caliber revolver at the victim and thumbed the hammer partially back. George testified at trial that his thumb unintentionally slipped off the hammer and the gun discharged. With these facts before it, the Court of Criminal Appeals held that the trial court did not err in refusing to give the requested involuntary conduct instruction since the evidence did not raise that issue. See Id. at 47.

The Court acknowledged the fact that a person could commit an offense only if he voluntarily engaged in conduct. See George, 681 S.W.2d at 45; see also Joiner, 727 S.W.2d at 535; Gaona, 733 S.W.2d at 615. However, the Court went on to define just what "voluntarily engaging in conduct" meant. See George, 681 S.W.2d at 45. Under the Court's definition, "conduct" could include one or more separate acts, so for "voluntary conduct" to occur, the Court held that a person only had to engage in a single voluntary act and its required mental state. See Id. Therefore, conduct is not rendered involuntary simply because it may also include an involuntary act or because the accused did not intend the result of his conduct. See Joiner, 727 S.W.2d at 536-37; George, 681 S.W.2d at 45; Gaona, 733 S.W.2d at 616.

In the final analysis, a trial court is not required to charge on involuntary conduct if the defendant engaged in a single voluntary act and its required mental state--even though an involuntary act may also constitute part of the overall conduct. See Joiner, 727 S.W.2d at 536-37; George, 681 S.W.2d at 47; Gaona, 733 S.W.2d at 617. That is just the situation before us here. Ross voluntarily carried a loaded pistol into a bar and confronted the deceased. He voluntarily beat the victim with the weapon, during which time the pistol discharged twice, striking the deceased. Up to the very second that the pistol discharged for the second time, Ross engaged in voluntary conduct with the required culpable mental state of intentionally or...