Williams v. State

• Decision Date: 23 February 1989
• Docket Number: No. C14-88-00357-CR,C14-88-00357-CR
• Parties: Eddie WILLIAMS, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 337

768 S.W.2d 337

Eddie WILLIAMS, Appellant, v. The STATE of Texas, Appellee.

No. C14-88-00357-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

Feb. 23, 1989.

Steven R. Rosen, Houston, for appellant.

Linda A. West, Houston, for appellee.

Before JUNELL, SEARS and CANNON, JJ.

OPINION

SEARS, Justice.

This is an appeal from a conviction for the offense of murder. A jury found Appellant guilty and that a deadly weapon was used in the commission of the offense. They assessed his punishment, enhanced by two prior felony convictions, at confinement for life in the Texas Department of Corrections. We affirm.

Appellant asserts four points of error on appeal. In his first point of error, Appellant contends that evidence at trial justified a charge on voluntary manslaughter, and the trial court erred in refusing to include Appellant's requested charge on voluntary manslaughter in its jury charge.

The record reflects that on November 19, 1987, at approximately 9:00 p.m. Appellant arrived at the home of his sister, Mrs. Rosie Cox. Mrs. Cox was on the telephone when Appellant stuck his head in the door. Appellant went back outside, fired a shot and then entered the house carrying a .22 rifle. Mrs. Cox's husband ran toward the back door, but Appellant called for him to come back. Appellant said he "wanted to use the m____ f____ phone" at which point Mrs. Cox hung up the phone. Appellant "raised the rifle up" and told Mrs. Cox to call their oldest brother, Willie Harris, who lived a few houses away, to see if he was home. The deceased, Michael Landow, answered and told Mrs. Cox that Willie was not there. She informed Appellant and he then pointed the rifle at Mr. and Mrs. Cox and told them, "You are going with me." When they refused, Appellant told his sister to "stay out of [his] m____ f____ business," pulled the telephone out of the wall and left the house. Mrs. Cox stepped out on the porch and saw Appellant with the rifle walking down the sidewalk toward Willie's house. She stated that Appellant seemed angry and his eyes were "red, red, red like fire." She stated that "he acted like something was wrong with him. He wasn't the Eddie that I had been brought up with." She further testified that she believed he was on drugs.

Mrs. Cox ran across the street to a neighbor's house and called the police. She then phoned Willie's house but there was no answer. Appellant returned a short time later, walked over to the neighbor's house and called Mrs. Cox to come outside. She refused and the neighbor ordered Appellant to leave. When the police arrived, Mrs. Cox told them of the prior events and suggested they go to Willie's house.

Officer Vance, the first officer at the scene, stated that Willie Harris' house was approximately 100 feet from the neighbor's house from which Mrs. Cox called the police and that it took less than one minute to walk that distance. Officer Vance and Officer Vashaw went to Willie Harris' house, opened the front door, and discovered the deceased laying on the living room floor. Eleven spent .22 calibre rifle cartridges and two bullets were found at the scene. Sgt. Gafford, an H.P.D. homicide detective, arrived at Mr. Harris' house at 11:20 p.m. At 11:45 p.m., Appellant telephoned that location and told Sgt. Gafford that he had been awakened by a telephone call from a friend who told him about the murder and that Appellant had been accused of the offense. Appellant told Sgt. Gafford he had been at home asleep all evening and knew nothing of the incident.

At Appellant's invitation, the officers went to Appellant's house and obtained his consent to a search of the premises. Just inside the front door they found a leather jacket. Tests conducted at the H.P.D. crime lab revealed that there were five spots of human blood on the jacket and that these blood spots had "flight characteristics" indicating that the blood "flew through the air and landed on the coat." An autopsy of the deceased showed that six bullets had been fired into the deceased's back, four of which perforated his lungs and caused his death. In addition, the deceased sustained gunshot wounds to the right buttock, left front chest, and right forearm. A total of six bullets were recovered from the body.

Appellant maintains there is evidence that Appellant acted under the influence of sudden passion. He contends the testimony of Mr. Willie Harris and Mrs. Cox was sufficient to raise the issue. However, Mr. Harris testified that Appellant was bothered by the deceased's accusation that Appellant stole his dog, that Appellant believed the deceased had stolen his dress suits and that Appellant was seeing his girlfriend. Also, Mrs. Cox testified that Appellant had an argument with the deceased regarding the dog a number of days prior to the killing, and at that time the deceased told Appellant he would shoot him. Appellant then responded by swearing on his mother's grave to kill the deceased. This is evidence of prior bad blood between the parties and premeditation rather than sudden passion.

TEX.PENAL CODE ANN. § 19.04 (Vernon 1974) reads in pertinent part as follows:

(a) A person commits an offense if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this code, except that he caused the death under the immediate influence of sudden passion arising from an adequate cause.

(b) "Sudden passion" means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.

(c) "Adequate cause" means 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.

Unless there is some evidence of sudden passion in the case, voluntary manslaughter cannot be considered a lesser included offense of murder. Bradley v. State, 688 S.W.2d 847, 851 (Tex.Crim.App.1985); Stahl v. State, 712 S.W.2d 783, 788 (Tex.App.--Houston [1st Dist.] 1986), affirmed, 749 S.W.2d 826 (1988). A charge on voluntary manslaughter is appropriate only when there is evidence that the accused acted under the "immediate influence of sudden passion arising from adequate cause." Marquez v. State, 725 S.W.2d 217, 223-24 (Tex.Crim.App.1987), cert. denied, 484 U.S. 872, 108 S.Ct. 201, 98 L.Ed.2d 152 (1987). The "sudden passion" must be "directly caused by and arising out of provocation" by the deceased "at the time of the offense". Hobson v. State, 644 S.W.2d 473, 478 (Tex.Crim.App.1983). Passion which is solely the result of former provocation is not sufficient to raise the issue of voluntary manslaughter. Lawrence v. State, 700 S.W.2d 208, 210 (Tex.Crim.App.1985); Hobson v. State, 644 S.W.2d at 478. Former provocation along with a showing of a sufficiently agitated state of mind at the time of the killing may raise the issue. Lawrence v. State, 700 S.W.2d at 211. However, it is not sufficient simply to show that the accused acted mad and had "red eyes". The evidence must also show that the anger was the result of an act of provocation on the part of the deceased. Marquez v. State, 725 S.W.2d at 224.

There is no evidence that the killing was the result of an act of provocation on the part of the deceased. The deceased was apparently at home alone prior to the killing. There is no evidence that Appellant and the deceased had any contact immediately prior to the shooting. In the absence of such evidence, the offense of voluntary manslaughter simply is not raised. Point of error one is overruled.

In his second point of error, Appellant asserts the evidence was insufficient to prove that he was the person who committed the offense.

The standard for reviewing the sufficiency of the evidence in both direct and circumstantial evidence cases is whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Taylor v. State, 684 S.W.2d 682, 684 (Tex.Crim.App.1984); Servin v. State, 745 S.W.2d 40, 43 (Tex.App.--Houston [14th Dist.] 1987, no pet.); Washington v. State, 721 S.W.2d 502, 503 (Tex.App.--Houston [14th Dist.] 1986, pet ref'd). The facts which support the conviction must exclude all other reasonable hypotheses except the...