Thomas v. State

• Decision Date: 18 December 1985
• Docket Number: No. 68984,68984
• Citation: 701 S.W.2d 653
• Parties: Danny Dean THOMAS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 653

701 S.W.2d 653

Danny Dean THOMAS, Appellant, v. The STATE of Texas, Appellee.

No. 68984.

Court of Criminal Appeals of Texas,

En Banc.

Dec. 18, 1985.

Ronald N. Hayes, Charles Rice Young, Judy Lynn Przyborski, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Timothy G. Taft, and David Knight, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MILLER, Judge.

This is an appeal taken from a conviction of capital murder, specifically, murder committed in the course of kidnapping. V.T.C.A. Penal Code § 19.03. The death penalty was imposed after the jury answered affirmatively the special issues submitted under Art. 37.071, V.A.C.C.P. Appellant brings ten grounds of error before this Court. We affirm the conviction.

In ground of error number four, appellant contends that the trial court erred in denying his request for a jury charge instruction on the lesser included offense of murder, since the evidence raised a question as to whether a kidnapping was committed at all, or whether appellant had any intent to kidnap. Appellant also contends that the court erred by not charging the jury on criminally negligent homicide.

In order to address appellant's contentions, we must review the evidence. After his arrest, appellant gave a confession in which he described the following sequence of events. On July 17, 1981, he and Zendal Peels were driving home from a skating rink when they spotted a young woman whose car had broken down. They stopped to determine whether they could be of assistance. After finding that the fan belt was broken, appellant and Peels drove the woman to a parts store where she purchased a new belt. They returned to the stalled car and appellant put on the new fan belt. When the car was fixed, appellant and Peels followed the woman to her house. She invited them inside. They drank some beer and smoked some marijuana. Peels stated that he wanted to get another beer and left the room. When Peels returned, he walked over to the woman and "swung his hand out and hit her in the face with [appellant's] .25 automatic [gun]." Appellant saw a trickle of blood on the woman as she went limp. Appellant was "getting scared, because [he] thought that [Peels] had probably killed her." Peels dragged the woman out the back door of the house, and appellant helped him put her in the car, on the front seat. Peels and appellant got in the car, and appellant drove away from the house. After traveling for some time, the woman regained consciousness. Appellant reached to push her and she bit his hand. Appellant told Peels to grab her. Peels hit her in the head with the gun. Appellant stated:

"Then when we were over on Hardy [Street], she come to again, and he began hitting her in the head with his knife, time after time. She started trying to cry, but had something in her throat, and it was sort of gurgling. Finally she went out again. We were coming back around on Airline [Street], and she started mumbling and trying to cry again. Right after that we got on to the Freeway from Airline, and we went up and there was a dark spot on the road before the Greenspoint Mall. She had been saying 'God help me' over and over. I got my gun, and reached over, and glanced to see her head, and when I saw the gun against the side of her head, I shot her one time."

As they were driving, appellant and Peels found several bricks in the road, which they retrieved. Appellant tied the woman's wrists together, and Peels tied her feet. They tied the bricks to her body and threw her into the San Jacinto River.

In addition to the confession, the State introduced evidence corroborating appellant's description of the crime. Friends and relatives of the deceased were called, as well as the investigating officers. A large number of exhibits were introduced which also corroborated the confession.

The defense did not dispute the facts relating to the actual murder. Rather, the entire defense was based upon questioning the sufficiency of the State's evidence, and establishing that appellant was insane at the time of the murder. Appellant did not take the stand.

We may now address appellant's claim that the court erred by failing to submit jury charge instructions on the lesser included offenses of murder and criminally negligent homicide. With regard to the latter offense, appellant made no request for a jury charge on the issue at trial. Thus, we will not consider his contention on appeal. See Boles v. State, 598 S.W.2d 274 (Tex.Cr.App.1980).

In Aguilar v. State, 682 S.W.2d 556 (Tex.Cr.App.1985), this Court adopted the two-prong test set forth in Royster v. State, 622 S.W.2d 442 (Tex.Cr.App.1981) (opinion on rehearing) for determining whether a jury must be charged on a lesser included offense. First, the lesser included offense must be included within the proof necessary to establish the offense charged. Second, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense. Aguilar, supra at 558; Cordova v. State, 698 S.W.2d 107 (Tex.Cr.App.1985); Bell v. State, 693 S.W.2d 434 (Tex.Cr.App.1985), and cases cited therein at 439; Lugo v. State, 667 S.W.2d 144 (Tex.Cr.App.1984). See also Thomas v. State, 699 S.W.2d 845, 846 (Tex.Cr.App.1985), and cases cited therein.

In order to establish the first prong of the test, we turn to the statutory definition of a lesser included offense as set forth in the Code of Criminal Procedure. Article 37.09, V.A.C.C.P. provides:

"An offense is a lesser included offense if:

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise included offense.

Certainly murder is a lesser included offense of capital murder since it meets the requirements of Art. 37.09(1), above. Since proof of this offense would be included within the proof necessary to establish capital murder, the first prong of the Aguilar test is established.

The question remaining is whether there is evidence that appellant, if guilty, is guilty only of the lesser included offense of murder. In deciding this question, we consider all of the evidence raised at trial; if evidence from any source raises the issue and a jury charge on the issue is properly requested, the issue must be submitted to the jury. Lugo, supra. See also Thomas, supra, and Bell, supra at 442, and cases cited therein. Appellant contends that, since the statement in his confession that he thought his co-defendant had killed the deceased prior to taking her out to the car raises a question of appellant's intent to commit kidnapping because he could not have kidnapped a dead body, the evidence raises the possibility that he was guilty only of murder.

Initially, we note that appellant did not testify nor offer any testimony which might reasonably have raised an inference that if he was guilty, he was guilty only of murder. Also, the statements in the confession show that even if he at first believed the woman to be dead, he knew she was alive when she regained and fought for consciousness three times before he shot her. The evidence in the case at bar would not have permitted the jury to reasonably reject the statements that appellant knew the woman was alive before he shot her and while he was restraining her liberty, yet still permit it to find him guilty of murder. See generally Thomas, supra. Cf. Bell and Lugo, supra, and Broussard v. State, 642 S.W.2d 171 (Tex.Cr.App.1982). There was no evidence from any source indicating that if appellant was guilty, he was guilty only of murder. See Cordova, supra. Thus, the trial court did not err in refusing to instruct the jury on the lesser included offense of murder. Appellant's fourth ground of error is overruled.

In ground of error number one, appellant contends that the trial court erred in not granting his timely request for two additional peremptory challenges. The record shows that potential juror Barbara Ann Taylor was called and examined by the State, the defense, and the court. She was selected as juror number 10. Following her selection, appellant was left with four peremptory strikes. A short time later, Taylor informed a member of the court's staff that her feelings had changed since her initial voir dire examination, and she could not abide by her oath as a juror.

After the voir dire examination of Marion Sandford, and after the State had declared Sandford acceptable, appellant's counsel approached the bench and requested two additional peremptory strikes, stating:

"[I]n light of the fact that [Taylor] may be brought before the Court and upon examination, may turn out not to be a qualified juror, the Defense would ask for two additional peremptory challenges based upon--well, a number of things. The number of jurors that were struck by the State and Defense since juror number 43, who would have been Barbara Ann Taylor, the Defense exercised two strikes, one Samuel Clements, juror number 44, and juror number 48, Howard White. If Barbara Ann Taylor had been struck for cause, the Defense probably would have exercised their strikes differently. Therefore, would show some harm, depending upon what happened to Barbara Ann Taylor."

Appellant's other attorney stated:

"... At this time, the Defense is in the position of not knowing whether or not Ms. Taylor will be a juror in this case now or not. We have been informed that it would be the State's position that if she were called back up and at that time were to state that...