No. 10-04-00170-CR
Opinion delivered and filed October 12, 2005. DO NOT PUBLISH.
Appeal from the 183rd District Court, Harris County, Texas, Trial Court No. 932,869. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
FELIPE REYNA, Justice.
A jury convicted John Cooper and his brother James of murder in a joint trial. The jury assessed punishment at forty years' imprisonment for John and forty-five for James. Both appealed. John presents eight points challenging the legal and factual sufficiency of the evidence and a ninth point contending that the court committed fundamental error by failing to sua sponte charge the jury on the law of defense of a third person. We will affirm
James Cooper's appeal is docketed in this Court under cause no. 10-04-00169-CR.
Background
The indictment alleges alternative legal theories and alternative manners and means by which John committed the offense. First, the indictment alleges that John caused the death of Craig Hoyer by striking Hoyer with his hand or by kicking him. See TEX. PEN. CODE ANN. § 19.02(b)(1) (Vernon 2003). Second, the indictment alleges that John intended to cause serious bodily injury to Hoyer and caused his death by committing an act clearly dangerous to human life, namely, hitting Hoyer with his hand or kicking him. Id. § 19.02(b)(2) (Vernon 2003). The evidence reflects that Hoyer lived in the same house with the Cooper brothers. On the date in question, some of the State's witnesses testified that Hoyer and the Coopers had gotten into an argument then went outside. The witnesses generally testified that the Coopers were hitting and kicking Hoyer. One stated that John was holding Hoyer in a "neck hold" while James was hitting and kicking him. A medical examiner testified that Hoyer died from "[b]lunt impact trauma to the head and neck." She described numerous injuries he had sustained: multiple internal injuries at the back of the head, multiple contusions on the right scapula, multiple contusions in the left lateral mid area of the back; a laceration to the right vertebral artery; and a laceration to the liver. Sufficiency of Evidence
James argues in his third and fourth points respectively that the evidence is legally and factually insufficient to prove he, as a party, intended to cause death or serious bodily injury to Hoyer. A person may be convicted as a party to an offense committed by another if "acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). We have concluded in James's appeal that the evidence is legally and factually sufficient to prove that James acted with intent to cause death or serious bodily injury to Hoyer. See Cooper v. State, No. 10-04-00169-CR, slip. op. at 3-4 (Tex.App.-Waco Oct. 12, 2005, no pet. h.) (not designated for publication). James contends that the evidence of intent is legally and factually insufficient because: (1) there is no evidence that he verbally threatened Hoyer; (2) he had no motive; and (3) the circumstances of the altercation do not suggest that he "would have any particular intent to cause the complainant serious bodily injury or death." One of the State's witnesses testified that Hoyer started a fight with John inside the house before they went outside. Another witness testified that out in the driveway John held Hoyer by the neck while James hit and kicked him. The State's witnesses generally agreed that John and/or James hit and/or kicked Hoyer until he was rendered unconscious. The testimony of the State's witnesses that John held Hoyer while James hit and kicked him constitutes legally sufficient evidence that John acted with intent to assist James in murdering Hoyer. See Montoya v. State, 810 S.W.2d 160, 161-62 (Tex.Crim.App. 1989); Edwards v. State, 106 S.W.3d 833, 842 (Tex.App.-Dallas 2003, pet. ref'd); Rivera v. State, 12 S.W.3d 572, 576 (Tex.App.-San Antonio 2000, no pet.). Accordingly, we overrule John's third point. John does not argue that there is any particular contrary evidence which renders the State's evidence factually insufficient. Rather, he argues that the State's evidence, standing alone, is not factually sufficient. We disagree. The witness who testified that John was holding Hoyer by the neck as James hit and kicked him was not discredited by either defendant. The State's other witnesses were in general agreement that James and/or John were hitting and kicking Hoyer on the date in question. The medical examiner testified that hitting and kicking could have caused the injuries Hoyer sustained. Thus, we cannot say that the evidence supporting the verdict is "too weak to support the finding of guilt beyond a reasonable doubt." See Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Therefore, the evidence is factually sufficient to prove that John acted with intent to assist James in murdering Hoyer. Id. Accordingly, we overrule John's fourth point. Defense of Third Person
John contends in his ninth issue that the court committed fundamental error by failing to sua sponte submit an instruction in the jury charge regarding defense of a third person. John concedes that he did not request such an instruction. The Court of Criminal Appeals has plainly held that a trial court has no duty "to sua sponte instruct the jury on unrequested defensive issues." Posey v. State, 966 S.W.2d 57, 62 (Tex.Crim.App. 1998). If the trial court has no such duty, then it cannot be fundamental error to fail to submit an unrequested defensive instruction. Accordingly, we overrule John's ninth point. We affirm the judgment.