Rousseau v. State

• Decision Date: 24 February 1993
• Docket Number: No. 70910,70910
• Citation: 855 S.W.2d 666
• Parties: Anibal Garcia ROUSSEAU, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 666

855 S.W.2d 666

Anibal Garcia ROUSSEAU, Appellant, v. STATE of Texas, Appellee.

No. 70910.

Court of Criminal Appeals of Texas,

En Banc.

Feb. 24, 1993.

Rehearing Denied April 7, 1993.

Brian W. Wice, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Winston E. Cochran, Jr., Charles Rosenthal and Lorraine Parker, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION

MALONEY, Judge.

Appellant, Anibal Garcia Rousseau, was convicted of capital murder. V.T.C.A. Penal Code, § 19.03(a)(2). ¹ At the punishment phase of appellant's trial, the jury answered affirmatively the special issues set forth in Article 37.071(b) of the Texas Code of Criminal Procedure. The trial judge then sentenced appellant to death as required by Article 37.071(e). Direct appeal to this Court was then automatic. Article 37.071(h) V.A.C.C.P.. We will affirm the judgment of the trial court.

Appellant raises thirty-one points of error. He does not challenge the sufficiency of the evidence to support the guilty verdict; however, he does challenge the sufficiency of the evidence to support the jury's affirmative answer to each of the three special issues submitted at the punishment phase of trial. See Article 37.071(b) V.A.C.C.P..

Appellant's first and second points of error complain that the trial court refused appellant's requested instruction on mitigating evidence and overruled his objection to the mitigation instruction that was submitted in the charge, citing Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Appellant contends that mitigating evidence presented at trial entitled him to, if not his requested instruction, then one that was different from the one submitted. This evidence included: (1) testimony that appellant surrendered himself to law enforcement authorities without incident, (2) evidence of appellant's good behavior in jail, and (3) evidence of appellant's history of drug abuse.

The fact that appellant turned himself in without incident can be considered in the same light as the evidence of his good behavior in jail pending trial. The United States Supreme Court squarely addressed the issue of good behavior in Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988), and held that this type of evidence could be given full effect under the Texas special issues and did not require an additional jury instruction. Id.; see also Lauti v. State, 810 S.W.2d 176 (Tex.Cr.App.1989); Ex parte Jacobs, 843 S.W.2d 517, 519-20 (Tex.Cr.App.1992) (reh'g denied) (cooperation with police is not type of evidence requiring Penry instruction).

Evidence of appellant's drug use was elicited through his own testimony at the punishment stage of trial. Beginning in 1969, appellant was arrested and convicted several times for selling heroin. Appellant testified that he did not begin to use heroin, however, until 1982 ², at which time appellant was 42 years old. ³ At the time of his arrest in the instant case, appellant appears to have been using heroin frequently as evidenced by a photo taken after appellant's arrest showing scarring on his arms caused by needles. Although the evidence clearly showed that appellant used drugs, we have held that such evidence does not rise to the level of "Penry" evidence requiring an additional instruction. Nobles v. State, 843 S.W.2d 503, 507 (Tex.Cr.App.1992) (reh'g denied); Ex parte Ellis, 810 S.W.2d 208, 212 (Tex.Cr.App.1991).

Since the mitigating evidence presented by appellant in this case did not require a Penry type charge, we will not address whether the form of the additional instruction that was submitted was sufficient. Appellant's first and second points of error are overruled.

In his third point of error, appellant contends that the trial court erred in refusing his requested charge on the lesser included offense of felony murder. Appellant argues that the instant offense was not intentionally committed, as required by the capital murder statute, but instead was committed with only the mens rea to meet the lesser standard of felony murder, i.e. that appellant intended only to rob David Delitta and not to cause his death. Appellant also calls into question the continued vitality of the "Royster test" in light of the Fifth Circuit's opinion in Cordova v. Lynaugh, 838 F.2d 764, 767 (5th Cir.), cert. denied, 486 U.S. 1061, 108 S.Ct. 2832, 100 L.Ed.2d 932 (1988).

We have since Royster v. State, 622 S.W.2d 442 (Tex.Cr.App.1981), consistently held that a two-prong test is to be met before a jury charge on a lesser included offense must be given: first, the lesser included offense must be included within the proof necessary to establish the offense charged, and, second, some evidence must exist in the record that if the defendant is guilty, he is guilty only of the lesser offense. Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Cr.App.1985) (citing Royster v. State, 622 S.W.2d 442 (Tex.Cr.App.1981)). In applying the second prong of the Royster test, the trial court's determination as to whether there is some evidence that raises an issue of a lesser included offense is distinct from the jury's ultimate determination as to whether the defendant is guilty only of the lesser offense and not of the greater offense. See Lugo v. State, 667 S.W.2d 144, 146 (Tex.Cr.App.1984). These separate considerations were delineated in Bell v. State, 693 S.W.2d 434, 442 (Tex.Cr.App.1985):

If evidence from any source raises the issue of a lesser included offense, the charge must be given ... 'it is ... well recognized that a defendant is entitled to an instruction on every issue raised by the evidence, whether produced by the State or the defendant and whether it be strong, weak, unimpeached, or contradicted.' (Citations omitted.) It is then the jury's duty, under the proper instructions, to determine whether the evidence is credible and supports the lesser included offense. (Citations omitted.).

Although we have long-recognized the importance of distinguishing between the roles of court and jury in the context of lesser included offenses, Lugo, 667 S.W.2d at 146 (quoting Liskosski v. State, 23 Tex.App. 165, 3 S.W. 696, 698 (Tex.Ct.App.1887), we have never explained the relationship between those roles and the application of the Royster test.

A comparison of the federal standard with the Royster standard is helpful in understanding the delineation between the roles of court and jury in applying Royster. The federal standard set forth in Cordova provides that

a lesser included offense instruction should be given 'if the evidence would permit a jury rationally to find [a defendant] guilty of the lesser offense and acquit him of the greater.'

Cordova, 838 F.2d at 767 (quoting Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). Although the Fifth Circuit has noted that the Royster test "seems very similar" to the federal standard, id. at 767 n. 3, one prominent difference between the two is the reference in the federal standard to the rational findings of a jury. We think that by similarly tieing the "guilty only" language in the Royster test to the rational findings of a jury, the roles of court and jury will be better understood in applying Royster. It becomes apparent that the appropriate test to be applied in determining whether a defendant is entitled to a charge on a lesser included offense is the following first, the lesser included offense must be included within the proof necessary to establish the offense charged, and, second, some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense.

(emphasis on portion added to Royster test). In applying the two-prong test ⁴, the trial court should make a determination as to whether the evidence of the lesser offense would be sufficient for a jury rationally to find that the defendant is guilty only of that offense, and not the greater offense. We will now turn to the facts of the instant case.

We have held that felony murder is a lesser included offense of capital murder. ⁵ Creel v. State, 754 S.W.2d 205, 211 (Tex.Cr.App.1988). The only difference between the two offenses is the culpable mental state of the offender. Id. Capital murder requires the existence of an "intentional cause of death," id., while in felony murder, "the culpable mental state for the act of murder is supplied by the mental state accompanying the underlying ... felony...." Rodriguez v. State, 548 S.W.2d 26, 29 (Tex.Cr.App.1977). See also Santana v. State, 714 S.W.2d 1, 9 (Tex.Cr.App.1986) (capital murder prohibits intentional taking of a life, while underlying felony provides mental state in felony murder context). Thus, appellant meets the first prong of the two-part test.

Under the second prong of the test, appellant was entitled to a charge on the lesser included offense of felony murder if there was some evidence that would permit a jury rationally to find that appellant had the intent to rob the victim, but not cause his death. In determining whether the trial court erred in failing to give a charge on the lesser included offense, we review all of the evidence presented at trial. Havard v. State, 800 S.W.2d 195, 216 (Tex.Cr.App.1989) (opinion on reh'g); Lugo, 667 S.W.2d at 147. A review of the evidence as presented at trial reflects the following: the victim, David Delitta, and his colleague, James Sullivan, both Environmental Protection Agency investigators ⁶, were making their way to a restaurant for dinner after parking Delitta's car in the lot. On the way to the door, they were accosted by an individual who "popped up" from between some parked cars. Sullivan testified that the man was carrying a cocked short-barrel firearm and had made no apparent attempt to conceal his identity. The gunman had the weapon lowered, but when he ordered the men to move back toward...