West v. State

• Decision Date: 20 January 1993
• Docket Number: No. 09-91-058,09-91-058
• Citation: 846 S.W.2d 912
• Court: Texas Court of Appeals
• Parties: Jack WEST, Jr., Appellant, v. The STATE of Texas, Appellee. CR.

Page 912

846 S.W.2d 912

Jack WEST, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 09-91-058 CR.

Court of Appeals of Texas Beaumont.

Jan. 20, 1993.

Rehearing Denied Feb. 11, 1993.

Discretionary Review Refused April 14, 1993.

Willis Everett Smith, Kingwood, for appellant.

Peter C. Speers, Dist. Atty., Kathleen Hamilton, Asst. Dist. Atty., Conroe, for state.

Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.

OPINION

BROOKSHIRE, Justice.

A jury convicted Jack West, Jr. of the murder of his wife, Brenda, and assessed punishment at twenty-eight (28) years in the Institutional Division of the Texas Department of Criminal Justice. Appellant raises three points of error, viz:

Point of Error One: The jury erred in ruling that the evidence was sufficient to support a finding that the appellant, while slapping his wife and thus causing her death, was guilty of murder.

Point of Error Two: The State was required, but failed, to prove the absence of "sudden passion" and "adequate cause" beyond a reasonable doubt in order to convict the appellant of murder.

Point of Error Three: The trial court erred when it refused appellant's request to include in the jury charge during guilt/innocence, a charge on self-defense.

Appellant was indicted under TEX.PENAL CODE ANN. sec. 19.02(a)(2) (Vernon 1989) and the jury was charged, in pertinent part:

... Jack West, Jr., did then and there intentionally or knowingly, with intent to cause serious bodily injury to an individual, Brenda West, commit an act clearly dangerous to human life, to-wit: strike Brenda West about her head with the defendant's hand or fist or an object, the nature of which is unknown to the Grand Jury, thereby causing the death of the said Brenda West, as alleged in the indictment, and you further find beyond a reasonable doubt that the defendant, in so acting, was not acting under the immediate influence of sudden passion arising from an adequate cause, then you will find the defendant guilty of murder....

Appellate review of the sufficiency of evidence to sustain a conviction is governed by the standard announced in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); that standard requiring the reviewing court to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson illuminates the appellate standard further by providing:

This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. (emphasis theirs)

Jackson, supra 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573.

Appellant argues under his first point of error that the State failed to prove (1) intent to cause serious bodily injury and (2) that appellant committed an act clearly dangerous to human life. Appellant also contends that the State was required to prove an intent to kill. Since appellant was tried under section 19.02(a)(2), the State was not required to prove a specific intent to kill. Harrell v. State, 659 S.W.2d 825, 827 (Tex.Crim.App.1983).

Intent to cause serious bodily injury is a question of fact to be determined by the trier of fact from all the facts and circumstances in evidence. Hemphill v. State, 505 S.W.2d 560, 562 (Tex.Crim.App.1974). Furthermore, intent may be inferred from the actions, words, and conduct of the defendant. Beltran v. State, 593 S.W.2d 688, 689 (Tex.Crim.App.1980). In the instant case, while appellant testified that he did not intend to seriously injure, much less kill, his wife, he did admit to slapping her once or perhaps two or three times in the mouth with his open hand. He also admitted to taking his wife by the neck and forcing her back on the bed. The evidence also showed that appellant was an award-winning bodybuilder who weighed approximately 200 pounds while the victim was a small woman weighing approximately 105 pounds. Additional testimony from several sources indicated that appellant, over the course of the marriage, physically abused and terrorized his wife. Typical of such evidence is the following testimony of appellant's twenty-one year old son, Curtis West:

Q. (the State) Had you ever seen anything else similar to what you have just described happen before in the house?

A. (Curtis West) Yes, sir.

Q. On few or many occasions?

A. Many.

Q. You made a motion with your finger. Would you stand up and demonstrate to the jury how Jack West called Brenda over to him?

A. He would say, "come here."

(The witness complies, by beckoning.)

Q. What would she do?

A. She would be shaking.

Q. Would she come to him?

A. Yes, sir.

Q. Thank you. And what would happen after she came up to him?

A. He would hit her with his fist.

Q. Did you ever, during any of these incidents where you saw your father hit your mother, did you ever hear him make any comments?

A. Yes, sir.

Q. Statements?

A. He said that, "One of these days, I'm going to kill you, Brenda. You're going to make me kill you."

Q. Have you heard him say that more than once?

A. Yes, sir.

Q. Have you heard him say that on few or many occasions?

A. Many.

We find the above and other similar evidence in the record before us sufficient to permit the jury to at least infer that appellant intended to cause serious bodily injury to his wife and committed an act clearly dangerous to human life. Point of error one is overruled.

The basis of appellant's second point of error stems from the testimony of appellant regarding the events that led up to the point when appellant struck his wife. Appellant testified that he and his wife were arguing about several things. At one point during the argument, appellant told his wife, "I ought to pop you on your butt with a belt." According to appellant, his wife reacted by grabbing appellant's penis with one hand and then the other. ¹ Appellant stated that his wife continued to hold and squeeze appellant's penis until he slapped her. We find this testimony sufficient to raise the issue of "sudden passion" and "adequate cause." Indeed, Medlock v. State, 591 S.W.2d 485, 486 (Tex.Crim.App.1979) provides that the testimony of the accused alone is sufficient to raise the issue, and the weight, truth, or falsity of the testimony is immaterial.

We find the issue of voluntary manslaughter was raised by appellant's testimony, but the jury nevertheless returned a verdict of murder. We are now required to make two determinations: (1) whether the evidence was sufficient to establish the offense of murder and (2) whether the evidence was sufficient to disprove the issue of sudden passion. Johnson v. State, 815 S.W.2d 707, 711 (Tex.Crim.App.1991). As we have already found in point of error one that the evidence was sufficient to establish the charge of murder under section 19.02(a)(2), we now turn to the second determination as raised by appellant's second point of error.

While we recognize language in Johnson to the effect that a jury may reject sudden passion, even though it is raised by the evidence; but the jury may not find facts necessary to establish the absence of sudden passion "purely on the basis of its disbelief of the accused's contrary assertions," Id. at 711; citing Gold v. State, 736 S.W.2d 685, 689, 690 (Tex.Crim.App.1987), overruled in part on other grounds by, Torres v. State, 785 S.W.2d 824 (Tex.Crim.App.1989). We also take note of the fact that the standard for reviewing a jury's finding of absence of sudden passion is the same as the standard enunciated in Jackson v. Virginia, supra, for reviewing sufficiency of evidence complaints in general. Applied to the instant situation, we must determine whether any rational trier of fact could have found sufficient evidence establishing the absence of sudden passion beyond a reasonable doubt. See, Torres, supra at 824-825.

Under the record before us in the instant case, we hold that a rational trier of fact could have found sufficient evidence establishing the absence of sudden passion beyond a reasonable doubt.

In the first place, a careful reading of the entire record reveals that appellant's defense was geared significantly toward portraying the victim as an alcoholic who had a chronic problem with keeping her balance, and who, on the day in question, was intoxicated and possibly injured herself by falling down and striking her head on some unknown object. Indeed, a lengthy narrative by appellant contained in the transcript of appellant's Grand Jury testimony dealt exclusively with the victim's high propensity for falling down, with the victim's alcoholism, with the victim's mental disorder, and about appellant becoming "disfunctional" (sic) and being severely frustrated with having to live with his wife's conditions.

The record also raises problems with appellant's credibility as, on the day in question, appellant related three different versions of the incident to three different people. State's witness Kelly Smith, the first of the emergency medical personnel to arrive on the scene, testified that when appellant was asked what the problem was, appellant responded, "I don't know. She fell." The second version was apparently related to the emergency room physician by appellant. The physician's report reflects the following: "This 46-year old female is reported by her husband to have been found in a very sleepy state sitting on a couch about mid-morning. She is reported to have aroused normally about 7 to 8 o'clock without difficulties." The third version was the one he related to the police and testified to at...