Ruiz v. State

• Decision Date: 18 May 1988
• Docket Number: No. 0658-85,0658-85
• Citation: 753 S.W.2d 681
• Parties: Armando Hilario RUIZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 681

753 S.W.2d 681

Armando Hilario RUIZ, Appellant, v. The STATE of Texas, Appellee.

No. 0658-85.

Court of Criminal Appeals of Texas En Banc.

May 18, 1988.

Rehearing Denied June 15, 1988.

Terrence Gaiser, Houston, for appellant.

William M. Rugeley, Former Dist. Atty., San Marcos, Robert Huttash, State's Atty. and Alfred Walker, First Asst. State's Atty., Austin, for State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was convicted of the offense of murder and sentenced to life imprisonment. V.T.C.A. Penal Code, § 19.02(a)(1).

Relying on Cobarrubio v. State, 675 S.W.2d 749 (Tex.Cr.App.1983), and noting our opinion on original submission in Jenkins v. State, 740 S.W.2d 435 (Tex.Cr.App.1983), the Austin Court of Appeals found unassigned fundamental error in the authorization paragraph of the trial court's instruction to the jury on murder. Ruiz v. State, 691 S.W.2d 90, 92 (Tex.App.--Austin 1985). It then determined that, on the facts of this case, the error was "egregiously harmful" and, therefore, denied appellant a fair and impartial trial under Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985). Ruiz v. State, supra, at 94. On this finding, the court reversed and remanded to the trial court for a new trial. Id., at 95.

We granted the State's petition for discretionary review to determine whether such error, on the facts of this case, denied appellant a fair and impartial trial and hence required reversal under Almanza v. State, supra. We will affirm the decision of the court of appeals.

I.

On May 29, 1983, John Shelton, the deceased, was employed as a "bouncer" at the Cherokee Cattle Company, a club in San Marcos licensed to sell mixed drinks. Near midnight that night, Bobby Warren, a "doorman" at the club, observed appellant pour a drink from a bottle of liquor. Warren approached appellant, identified himself, and informed appellant that Texas law prohibits customers from bringing a bottle of liquor into a club licensed to sell mixed drinks. In response, appellant clasped the bottle to his body. Warren reached for the bottle, but appellant protested it was his. When Warren grasped appellant by the shoulders and attempted to escort him from the club, appellant began struggling and pushed him away. Warren then seized appellant in a "headlock" and began pulling him towards the exit. Appellant, still clutching the liquor bottle to his body, continued to struggle.

At this point, the deceased, Shelton, came over to assist Warren. While Warren continued to apply the headlock, deceased grasped appellant by the waist and legs. Appellant continued to struggle and began "screaming and hollering" obscenities at the two men. Together, they carried appellant, struggling and cursing, out of the club. Once outside, appellant fell, or was pushed, to his knees. Warren struck him in the face and took the bottle from him. Warren and deceased then started to reenter the club.

Events from that moment were succinctly related by Warren at trial:

"[Shelton] had the door open and so I went in first, and then [Shelton], and I would say he was not more than two or three feet behind me, and the door I'm sure hadn't even completely closed, and we went back in, it was almost simultaneous that I heard one shot and then I leaped to get around the corridor and then I heard another shot ..."

Shelton's assailant yelled "I'm going to get you, you S.O.B.!" between the first and second shots. Both shots hit Shelton in the torso. One proved fatal.

Two witnesses testified they saw appellant leaning into the club through the partially opened front door at the time the shots were fired. While no one saw appellant actually fire a weapon, one witness testified that he saw "flashes" from appellant's position corresponding to the gunshots. However, other testimony showed that when the police made their initial investigation shortly after the shooting, prior to Shelton's transport to hospital, no eyewitnesses to the shooting were found.

Appellant fled and was pursued by a number of the club's employees and patrons. During the pursuit, appellant fired three shots at his pursuers. Ultimately, appellant was cornered in a "box alley," tackled and captured. He began to yell, "I'm crazy. I'm crazy. I didn't know what I was doing." At least one witness heard what he later identified as the sound of metal striking the ground near where appellant was tackled. Upon searching the area a few moments later, the witness discovered a 5-shot revolver. The revolver was identified as the weapon that fired the bullets which killed Shelton.

The trial court charged the jury, inter alia, on the law of murder and voluntary manslaughter. The instruction defined murder as "intentionally and knowingly caus[ing] the death of an individual." The murder authorization paragraph provided, in pertinent part:

"Now if you find from the evidence beyond a reasonable doubt that on or about the 29th day of May, 1981, in Hays County, Texas, the defendant ... did then and there intentionally or knowingly cause the death of an individual ... by shooting him with a firearm, to wit: a pistol, as set forth in the indictment, then you will find the defendant guilty of murder.

Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt as to whether defendant is guilty of murder, then you will acquit him of murder and next consider whether he is guilty of voluntary manslaughter."

The charge then defined the offense of voluntary manslaughter, V.T.C.A. Penal Code, § 19.04, and applied the law of that offense to the facts of this case. ¹ Thereafter the court instructed the jury that if it found:

"... from the evidence beyond a reasonable doubt that the defendant is guilty of either murder or voluntary manslaughter, but [had] a reasonable doubt as to which offense he is guilty, then [it] must resolve that doubt in [the] defendant's favor and find him guilty of the lesser offense of voluntary manslaughter."

No charge was requested on selfdefense or other possible defensive issues. Appellant did not object to the charge prior to its submission to the jury, though the charge was manifestly erroneous under our holding in Cobarrubio v. State, supra.

Approximately three hours after retiring, the jury returned a verdict of "guilty of the lesser included offense of voluntary manslaughter." However, upon polling the jury, the parties discovered only two jurors would acknowledge that as their individual verdict. The court then admonished the jurors that they could not return a verdict unless it was unanimous. Thereafter, the jury retired for further deliberations.

A short time later, the jury sent a note to the court asking for "a further interpretation of" the instruction regarding what they were to do if they decided the defendant was guilty of an offense but could not decide between murder or voluntary manslaughter. The court replied that the jury was to "carefully re-read [the pertinent section] of the Charge of the Court, and ... then continue [its] deliberations." ²

After deliberating another seventy-five minutes, the jury was allowed to separate and return home for the night. The next morning, after another two hours deliberation, the jury returned a verdict of guilty of murder as charged in the indictment.

The State does not dispute that the evidence raises the issue of whether the defendant caused the death under the immediate influence of sudden passion arising from an adequate cause. See, V.T.C.A. Penal Code, § 19.04(a). ³ Therefore, in the instant case, the absence of "sudden passion" is an element of murder under § 19.02, supra. Bradley v. State, 688 S.W.2d 847, 851 (Tex.Cr.App.1985). As a result, appellant was entitled to an acquittal on the murder charge unless the State proved the absence of "sudden passion" beyond a reasonable doubt. See, e.g., Lawrence v. State, 700 S.W.2d 208, 211 & 213 (Tex.Cr.App.1985). The trial court was required to so instruct the factfinder in the murder authorization paragraph of its charge. In failing to do so, the trial court erred. Article 36.14, V.A.C.C.P.; Cobarrubio v. State, supra.

II.

Under Almanza v. State, supra, unobjected to error in the court's instructions to the jury will mandate a reversal only if the error is so egregious and created such harm that he "has not had a fair and impartial trial." 686 S.W.2d at 171-172. See also, Goff v. State, 720 S.W.2d 94, 95 (Tex.Cr.App.1986).

In Cobarrubio the Court reasoned:

"With the ... issue of 'sudden passion' deleted from the paragraph on murder and placed only in the voluntary manslaughter paragraph ... there exists a decided likelihood that a jury would affirmatively answer the murder paragraph, never having considered the ... issue of sudden passion.... Thus, if the jurors followed the court's instructions to the letter--indeed, we must presume they did--the State's burden of proof was significantly diminished and appellant was denied an opportunity to have the jury determine his guilt on the issue of murder as [that offense is defined by Texas law]." [Emphasis in original]

675 S.W.2d at 752.

This likelihood led us previously to conclude that "Cobarrubio error" "precipitate[s] a denial of due process of law in the most fundamental sense." Cobarrubio, 675 S.W.2d at 752. However, the Court has since decided that this error may not in every case actually deny the defendant a "fair and impartial trial" so as fully to meet the test for fundamental error under Almanza. See, e.g., Lawrence, supra. But, that does not mean the "nature and character of" the error thereby changed. Lawrence, 700 S.W.2d at 217 (Clinton, J., dissenting). Inasmuch as the charge in Cobarrubio relieved the State of the burden of proving absence of sudden passion in order to obtain a verdict of guilty for the offense of murder, the error was indeed "egregious." ⁴ If from the facts of a case the "likelihood that the jury would...