Wallace v. State, 65325

Citation618 S.W.2d 67
Decision Date01 July 1981
Docket NumberNo. 65325,65325
PartiesDavid Leon WALLACE, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
OPINION

ODOM, Judge.

This is an appeal from a conviction for capital murder. The jury answered the punishment stage questions under Art. 37.071, V.A.C.C.P., affirmatively, and punishment was assessed at death.

In one of his grounds of error appellant challenges the sufficiency of the evidence to prove that there is a probability he would commit criminal acts of violence that would constitute a continuing threat to society. Art. 37.071(b) (2), V.A.C.C.P. The evidence at the guilt stage of the trial was conflicting, but it was undisputed that appellant did not himself kill Lee Chagra, the murder victim. The State proved the killing by appellant's companion during the course of a robbery. Appellant testified Chagra was killed in self-defense during an argument that arose in a drug transaction.

On cross-examination appellant admitted that he had discussed possible robberies with the person who hired him in the instant case, but denied he had committed any. His confession admitted that he had participated in a thwarted attempt to commit a robbery a few weeks before the instant murder. The only other evidence of misconduct was an admission by appellant during the punishment stage that he had a military violation for being absent from the place of duty.

There was no other evidence presented that could be considered relevant to the issue of future violent conduct. Specifically, there was no evidence of prior convictions, no prior acts of violence, no character evidence, no psychiatric evidence. Although the circumstances of the murder may be sufficient to support a death penalty, Duffy v. State, Tex.Cr.App., 567 S.W.2d 197, this is not such a case. We are of the opinion that the evidence is insufficient to support the "yes" finding on the issue of future violent conduct. Consequently the death penalty must be set aside. See Sanne v. State, Tex.Cr.App., 609 S.W.2d 762; Brasfield v. State, Tex.Cr.App., 600 S.W.2d 288; Bullington v. Missouri, --- U.S. ----, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981).

Because the evidence is insufficient to support a "yes" finding under Art. 37.071(b)(2), supra, the judgment on punishment must be reformed to the only punishment available under the law, life imprisonment. V.T.C.A., Penal Code Sec. 12.31(a); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); Bullington v. Missouri, supra. The other ground of error based on the punishment stage now is moot. Sanne v. State, supra.

There remain four grounds of error addressed to the guilt stage that must be considered since if meritorious a reversal of the conviction would follow.

The first and fourth grounds of error complain of the jury charge on the law of parties and omission of a charge on self-defense.

In his challenge to the charge on the law of parties, appellant asserts it was error to overrule his objection to the charge for failure to apply the law of parties to the facts of the case. From the facts of the case stated above, it is clear that appellant was guilty only as a party, not as a primary actor. Were there no application of the law of parties to the facts of the case, appellant's objection would be sound and the error reversible. Apodaca v. State, Tex.Cr.App., 589 S.W.2d 696. The charge, however, does include an application of the law of parties under V.T.C.A., Penal Code Sec. 7.02(b) to the facts of the case. Appellant complains because the court refused to apply the law of parties under Sec. 7.02(a)(2) to the facts. He relies on Pitts v. State, Tex.Cr.App., 569 S.W.2d 898, in which the trial court also applied the law of parties under Sec. 7.02(b) to the facts, but neglected to apply the law under Sec. 7.02(a)(2) to the facts. In that case, however, there was no objection. The court wrote:

"The appellant also complains that the law of parties was not applied to the facts of the case. Since this is not a fundamental error and since there was no objection to the court's charge nothing is presented for review. Romo v. State, 568 S.W.2d 298 (Tex.Cr.App.1978); Mott v. State, 543 S.W.2d 623 (Tex.Cr.App.1976). Moreover, the evidence supports and the charge authorizes the jury to find that the appellant himself shot the officer; there is no need to rely on the theory of parties to support the conviction. Durham v. State, 112 Tex.Cr.R. 395, 16 S.W.2d 1092 (1929); McCuin v. State, 505 S.W.2d 827 (Tex.Cr.App.1974)."

This holding, appellant argues, means there was no fundamental error, implying there would be error had there been an objection. We read this language to mean what it says: nothing was presented for review. Appellant having made proper objection, the issue is now presented for review, and on the facts of this case we hold there is no error. We paraphrase the alternative language from Pitts quoted above: the evidence supports and the charge authorizes the jury to find that the appellant was guilty under Sec. 7.02(b); there is no need to rely on the theory of parties under Sec. 7.02(a)(2) to support the conviction. The ground of error is overruled.

The ground of error complaining of denial of a charge on self-defense relies on evidence that the primary actor shot the deceased in an act of self-defense. While it is true that a party to an offense is entitled to a charge on self-defense if the primary actor would be entitled to one, Misner v. State, Tex.Cr.App., 610 S.W.2d 502, the requested charge in this case was not based on the law of parties. Nothing is presented for review.

In another ground of error appellant complains of denial of his motion for appointment of a psychiatrist and psychologist to determine his sanity for purposes of deciding whether to raise a defense of insanity. See Art. 46.03, Sec. 3, V.A.C.C.P. This request was contained in a motion that also requested appointment of a psychiatrist and clinical psychologist to determine appellant's competency to stand trial. See Art. 46.02, Sec. 3, V.A.C.C.P. The only order on this motion granted the request for examination on the matter of competency and made no reference to the matter of the insanity defense. It does not appear that appellant obtained an adverse ruling on the matter now raised. Nothing is presented for review.

Finally, appellant contends it was error to deny counsel's motion to withdraw. Counsel presented a motion to withdraw when it became apparent that a substantial portion of his fee would not be paid by appellant's mother, as he had been promised. Any contractual rights the attorney had against appellant's mother would be independent of his continuing duty to represent appellant once he had undertaken that responsibility. The right to counsel may not be manipulated so as to obstruct the judicial process or interfere with the administration of justice, Estrada v. State, Tex.Cr.App., 406 S.W.2d 448; Rodriguez v. State, Tex.Cr.App., 530 S.W.2d 944, and there is no suggestion that counsel in this case compromised himself in fulfilling his duty to appellant. The only suggestion appellant makes that he was in any way harmed by the circumstances relied on to support this ground of error is directed not to the denial of the motion to allow withdrawal of counsel, but to the inability of the defense to receive state funds for obtaining witnesses. The arguments are too speculative to show harm. Under Art. 26.05, V.A.C.C.P., counsel is entitled to reimbursement of investigation expenses only after they are incurred, and even then reimbursement is discretionary with the court, Myre v. State, Tex.Cr.App., 545 S.W.2d 820, 826; and refusal to pay expenses before they are incurred is not an abuse of discretion. Eggleston v. State, Tex.Cr.App., 422 S.W.2d 460. Although Art. 26.05, supra, by its terms applies only to appointed counsel, it has been held that the fact that counsel on appeal is retained does not bind counsel to furnish the appellate record at his own expense, and that the issue of indigency for obtaining a free record is not determined by the financial status of the defendant's family, nor by the fact that counsel is retained or the defendant has made bond. Castillo v. State, Tex.Cr.App., 595 S.W.2d 552; Conrad v. State, Tex.Cr.App., 537 S.W.2d 755. Likewise, it would be illogical to penalize the indigent defendant whose family hires a lawyer for him (and thereby relieves the State of its financial obligation in the matter) by denying him investigative funds under Art. 26.05, supra. Denial of counsel's motion to withdraw and failure to provide funds to prepare a defense before any expenses were incurred was not error. The ground of error is overruled.

The judgment, with punishment reformed to life, is affirmed.

TEAGUE, J., dissents.

ONION, Presiding Judge, concurring.

I concur in the result reached by the majority, but feel strongly compelled to state my reasons for doing so. I fully concur that the evidence was insufficient to support the jury's affirmative answer to the second special issue submitted to the jury (the future dangerousness question) under Article 37.071(b)(2), V.A.C.C.P., at the penalty stage of the trial.

Since any reversal in a capital murder case based on the insufficiency of the evidence to support any special issue submitted under Article 37.071, V.A.C.C.P., at the penalty stage of the proceeding is a precedent to be carefully considered as a guideline in future cases, I believe the facts should be more fully developed in the opinion than the majority does.

While the majority does correctly note that the requested charge on self-defense did not preserve error,...

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