Westbrook v. State

• Decision Date: 27 January 1993
• Docket Number: 2-91-351-CR,Nos. 2-91-350-C,s. 2-91-350-C
• Citation: 846 S.W.2d 155
• Parties: Don Allen WESTBROOK, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 155

846 S.W.2d 155

Don Allen WESTBROOK, Appellant, v. The STATE of Texas, State.

Nos. 2-91-350-CR, 2-91-351-CR.

Court of Appeals of Texas Fort Worth.

Jan. 27, 1993.

Jerry L. Wood, Fort Worth, for appellant.

Tim Curry, Crim. Dist. Atty., David Curl, Asst. Dist. Atty., Fort Worth, for State.

Before WEAVER, LATTIMORE and HOPKINS, ^* JJ.

OPINION

HARRY HOPKINS, Justice.

Don Allen Westbrook appeals his convictions of murder and aggravated assault. The jury sentenced him to thirteen years for murder and ten years for aggravated assault. The judge ordered the sentences to run concurrently. We affirm the judgment.

In February of 1989, Michael Willingham borrowed Don Westbrook's car. Four days after he borrowed the car, Westbrook set out to confront Willingham about not returning the car.

On the day of the offense, Willingham was staying at a Fort Worth motel, sharing a room with Kecia Autrey and her young daughter, Ashley. While Willingham was in the bathroom, Autrey heard a banging on the motel room door. Autrey testified that as she reached for the doorknob, the door burst open and Westbrook rushed into the room declaring, "I'll teach you to fuck with me." She further testified that as Willingham stepped out of the bathroom at the rear of the room, Westbrook immediately pointed a gun at Willingham. As Willingham was saying, "hey, hey, what's going on, just wait a minute, calm down," Westbrook shot him in the head and then shot Autrey in the back of the head. Willingham died the next day, and Autrey suffered severe permanent injuries.

Tim Alexander, another State's witness, gave a somewhat different account, testifying he saw Westbrook enter the room and did not hear gunshots until approximately three or four minutes later. Moreover, Westbrook testified he knocked on the door and Autrey let him in. Westbrook further testified he fired his gun when both Willingham and Autrey made a sudden movement toward him, as he was retreating toward the door. ¹ Police investigators found no weapons in the room following the shooting, and Autrey testified that neither she nor Willingham had any weapons and did not threaten Westbrook.

In his first point of error, Westbrook complains about the wording of the abstract and application paragraphs. In an apparent abundance of precaution, the trial judge charged the jury on the law of self-defense. The evidence in this case, including Westbrook's own testimony, ² would tend to make the necessity for a charge on self-defense highly suspect. However, considering our disposition of Westbrook's first point of error, wherein he complains of the wording of the instruction and application of the law on self-defense as submitted to the jury, we find that the determination of this issue is not necessary.

Westbrook specifically contends the trial court erred by refusing to add the phrase "or was retreating" to the self-defense instruction and the application paragraphs. The abstract paragraph on self-defense tracked the language of the statute. The abstract paragraph given, with Westbrook's requested addition appearing in brackets, follows:

A person is justified in using deadly force against another if he would be justified in using force against the other in the first place, as above set out, and when he reasonably believes that such force is immediately necessary to protect himself against the other person's use or attempted use of unlawful deadly force, and if a reasonable person in defendant's situation would not have retreated [or was retreating].

The application paragraph of the charge, with Westbrook's requested addition appearing in brackets, follows:

Now, if you find ... Don Allen Westbrook, did shoot Michael Willingham ... but you further find from the evidence that, viewed from the standpoint of the defendant at the time, from the words or conduct, or both, of Michael Willingham, it reasonably appeared to the defendant that his life or person was in danger and there was created in his mind a danger and there was created in his mind a reasonable expectation or fear of death or serious bodily injury from the use of unlawful deadly force at the hands of Michael Willingham, and that acting under such apprehension, he reasonably believed that the use of deadly force on his part was immediately necessary to protect himself against Michael Willingham's use or attempted use of unlawful deadly force, and he shot the said Michael Willingham, and that a reasonable person in defendant's situation at that time would not have retreated [or was retreating], then you should acquit.... ³

Westbrook contends he used deadly force while he was retreating, and under the instruction given, the jury could only acquit him on grounds of self-defense if they found he had not been retreating. Thus, he argues the charge was improper, and the error was harmful. We disagree.

We find the requested additions to the instruction and application paragraphs could have resulted in confusing and misleading the jury as to the law of self-defense and the law of retreat. Thus, the requested additions were properly rejected by the trial court.

In Sternlight v. State, 540 S.W.2d 704 (Tex.Crim.App.1976), the appellant asserted that the charge on self-defense, which was drafted in the language of the statute, was erroneous because it failed to instruct the jury that the statutory duty to retreat was necessary only if she had the ability and opportunity to retreat. Id. at 705. The Texas Court of Criminal Appeals held, "We have decided that the instruction on the law of retreat drafted in the language of the statute is sufficient." Id. at 706. The court also focused on the word "situation" in the phrase "if a reasonable person in defendant's situation would not have retreated," and stated:

'Situation' means a combination of circumstances at a given moment. The instruction given required the jury in deciding the issue on self-defense to determine whether the appellant had the ability and opportunity to retreat considered as a part of all of the circumstances of the moment. [Emphasis added.]

Id. In the instant case, the instruction and application given required the jury, in deciding the issue on self-defense, to determine whether the appellant, at the moment, could have avoided the use of deadly force by continuing to retreat from the motel room--if they believed he was in fact retreating, instead of resorting to the use of deadly force.

We find the instruction and application on the law of retreat, drafted in statutory language, are sufficient to properly inform the jury on the law of retreat in situations where the accused may have begun a retreat before using deadly force. See TEX.PENAL CODE ANN. § 9.32 (Vernon Supp.1993). Point of error number one is overruled.

In his second and third points of error, Westbrook contends the trial judge should have instructed the jury on: (1) voluntary manslaughter as a lesser included offense of murder in Willingham's case; and (2) attempted voluntary manslaughter as a lesser included offense of aggravated assault in Autrey's case. Westbrook objected to the trial court's failure to submit a charge on the lesser included offenses.

In determining whether a charge on a lesser included offense is required, a two-step analysis is required. Mitchell v. State, 807 S.W.2d 740, 741 (Tex.Crim.App.1991); see TEX.CODE CRIM.PROC.ANN. art. 37.09 (Vernon 1981). First, the evidence at trial must show a lesser included offense within the proof necessary to establish the offense charged. Mitchell, 807 S.W.2d at 741. Second, there must be some evidence in the record that if the defendant is guilty, he is not guilty of the alleged offense but is guilty only of the lesser included offense. Id.; see also Havard v. State, 800 S.W.2d 195, 216 (Tex.Crim.App.1989) (opinion on reh'g).

A charge on voluntary manslaughter should only be given when there is evidence that the defendant acted under the immediate influence of sudden passion arising from adequate cause. Marras v. State, 741 S.W.2d 395, 405 (Tex.Crim.App.1987). Adequate cause is cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection. Id. (citing TEX.PENAL CODE ANN. § 19.04(c) (Vernon 1989)).

The sudden passion must be directly caused by and arising out of provocation by the deceased at the time of the offense. Id.; Marquez v. State, 725 S.W.2d 217, 224 (Tex.Crim.App.), cert. denied, 484 U.S. 872, 108 S.Ct. 201, 98 L.Ed.2d 152 (1987). Passion solely the result of former provocation is insufficient. Marras, 741 S.W.2d at 405; Hobson v. State, 644 S.W.2d 473, 478 (Tex.Crim.App.1983). Evidence that a defendant was enraged or terrified before acting does not mandate a voluntary manslaughter charge unless evidence shows that the emotions resulted from provocation at the time of the offense. Marquez, 725 S.W.2d at 224.

Westbrook argues the following evidence raises the lesser offense of voluntary manslaughter:

(1) Autrey testified that when Westbrook entered the motel room the door flew open and he was alleged to say "I'll teach you to fuck with me"; ⁴

(2) Westbrook testified that immediately prior to the shooting Westbrook spoke to Willingham about Westbrook's "stolen" car, and about threats Willingham was alleged to have made against Westbrook;

(3) Westbrook claims that the victims were approaching him when he fired.

Westbrook was not entitled to a charge on voluntary manslaughter because his "passion" was not sudden. See Hobson, 644 S.W.2d at 478 (insufficient evidence of sudden provocation where defendant's passion resulted from earlier events). In the instant case, prior provocation is shown by the fact that he deliberately set out to confront Willingham; Willingham threatened Westbrook days before the offense was committed; Westbrook told the person that drove him to the motel that he was "going to make sure that...