Coleman v. State

Full title: CONNIE LEE COLEMAN, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 12, 2003

No. 05-01-01662-CR (Tex. App. Mar. 12, 2003)

Opinion

No. 05-01-01662-CR.

Opinion Filed March 12, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.

Appeal from the 401st District Court, Collin County, Texas, Trial Court Cause No. 401-81257-00. AFFIRM.

Before Justices JAMES, FITZGERALD, and LANG.

OPINION

Opinion By Justice FITZGERALD.

Connie Lee Coleman appeals her conviction for murder. After finding appellant guilty, the jury assessed appellant's punishment at twenty-five years' imprisonment. Appellant brings three points of error on appeal, contending the trial court erred in excluding a psychiatrist's testimony about appellant's state of mind at the time of the killing and that the evidence is legally and factually insufficient to support the implied finding that appellant's use of deadly force was unjustified. We affirm the trial court's judgment.

FACTUAL BACKGROUND

At about 1:00 a.m. on July 8, 2000, appellant stabbed to death Vincent Robertson with a kitchen knife. Appellant lived with her lover, Awritha Johnson. Appellant and Johnson's relationship was frequently stormy, and they tended to behave jealously toward one another. One cause of appellant's jealousy was that Johnson conceived and gave birth to a son during their relationship. Although Johnson and Robertson were first cousins, appellant thought Robertson was the father of Johnson's child. Robertson had been released from the penitentiary about two or three weeks before he was killed. Robertson would "hang out" at appellant's and Johnson's residence, but he "was staying" with his sister or with any of his many girlfriends.¹ Robertson and appellant did not get along well. In a previous encounter, they had gotten into a fight, and Robertson got the better of appellant. On another occasion, Robertson slapped appellant so hard that she was rendered unconscious. Although appellant was a little taller than Robertson, he was heavier, in better physical condition, and about thirteen years younger than appellant. A week or two before appellant killed Robertson, appellant approached her neighbors across the street and told them she thought Johnson and Robertson were "messing around." Appellant also told them that she and Robertson "had got into it before" and she would not let him "jump on" her anymore but would stab him. A few days before the homicide, Robertson was at appellant's and Johnson's residence sitting at a table in the kitchen. At one point, appellant got up, retrieved the knife in the kitchen, and told Robertson, "Do you remember the night that you slapped me? . . . I never forgot that shit." Robertson left appellant's and Johnson's house without any physical confrontation and without saying a word to appellant.² On the night of July 7, 2000, appellant, Johnson, and Robertson were in appellant's and Johnson's kitchen. They shared a rock of crack cocaine and were having a good time. Then, appellant and Johnson started "fussing," and appellant shoved Johnson. Robertson stepped up to appellant, said, "You are not going to do that to my cousin," and he and appellant shoved each other, tearing Robertson's shirt. Johnson and Robertson went onto the porch and sat down, and appellant stayed inside the residence. Appellant returned to the kitchen, got the knife, and hid it in the cushions of the sofa. Appellant then sat down on the sofa and continued "fussing and cussing" at Johnson and Robertson. When appellant stated Robertson must be the father of Johnson's child, Robertson got up and went inside the residence. Johnson heard the sound of hitting and got up as quickly as she could with her arthritis and followed Robertson inside. When she got inside, she slipped in a puddle of blood and fell down. Johnson saw appellant lying down on the sofa and Robertson leaning over her. Robertson stood up, said "she stabbed me, she stabbed me," and ran out of the residence. Johnson got up, got her son out of the house and to some neighbors and then found Robertson, who had walked partway down the street, and took him to a neighbor's house. Robertson collapsed on the floor as he entered the neighbor's residence. The neighbors asked Robertson what had happened, and he said, "She stabbed me." The neighbors asked who had stabbed him, and Johnson said, "That bitch, Connie." The neighbors called 911. The police and paramedics arrived a few minutes later, but Robertson died from the stab wounds. The police went to appellant's residence and found her standing outside. The police handcuffed her and had her sit down on the curb. Appellant explained to the officers that she and Robertson had an argument and that she was afraid Robertson would return and beat her up. She told the officers she retrieved the knife from the kitchen to protect herself and placed it among the sofa cushions. Appellant explained to the officers that when Robertson returned and started beating her, she stabbed him with the knife to get him off her.

EVIDENCE OF APPELLANT'S MENTAL STATE

In her first point of error, appellant contends the trial court erred in excluding the evidence of a psychologist regarding appellant's mental state at the time appellant stabbed Robertson. In the trial of a murder case in which self-defense is raised, article 38.36(b) of the code of criminal procedure authorizes admission of "relevant expert testimony regarding the condition of the mind of the defendant at the time of the offense" if the defendant had been a victim of family violence as defined in the family code committed by the deceased. Tex. Code Crim. Proc. Ann. art. 38.36(b)(1), (2) (Vernon Supp. 2003); see Avila v. State, 954 S.W.2d 830, 841 (Tex.App.-El Paso 1997, pet. ref'd); Osby v. State, 939 S.W.2d 787, 790 (Tex.App.-Fort Worth 1997, pet. ref'd). "Family violence" is defined as

an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.

Tex. Fam. Code Ann. § 71.004(1) (Vernon 2002). Appellant does not assert she and Robertson were "family" as defined in the family code, but she asserts they were members of the same "household": "`Household' means a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other." Id. § 71.005. "`Member of a household' includes a person who previously lived in a household." Id. § 71.006. In this case, the trial court excluded the psychologist's opinion that at the time of the killing, appellant's intent was to protect herself from being beaten by Robertson and that she did not intend to kill Robertson. The trial court based its ruling that article 38.36(b) did not apply on its finding that no evidence showed appellant and Robertson were family or members of the same household. We review the trial court's ruling excluding the psychologist's testimony of appellant's mental state under the abuse of discretion standard. Osby, 939 S.W.2d at 789. This standard requires an appellate court to uphold a trial court's admissibility decision when that decision is within the zone of reasonable disagreement. Robbins v. State, 88 S.W.3d 256, 260 (Tex.Crim.App. 2002). The trial court resolves any factual issues concerning admission of the evidence, and we must defer to those findings supported by the record. See Fairow v. State, 943 S.W.2d 895, 907 (Tex.Crim.App. 1997). In this case, none of the witnesses testified before the jury that Robertson lived with appellant and Johnson at the time he was killed; nor did any witness testify before the jury that he had ever lived in the same residence with appellant. In a hearing outside the presence of the jury, the psychologist testified about her understanding of appellant's and Robertson's relationship:

Q. How did Connie classify Vincent, were they friends, were they family, I mean how did she classify that relationship?

A. Well, she said that they were friends and, you know, in Connie's life you fight with your friends, you fight with your family, that's what she knows. That's the kind of relationship she has. So it's as a female [sic] member, as a friend. There's abuse going on at the same time.

Q. And you would definitely classify this as, I mean was it also your understanding that Vincent would live there too, at some points in time?

A. Yes. They spent many days with him, it's an understanding, on a daily basis.

Q. And can you say whether or not that this was their family, Connie, Vincent and Awritha?

A. It's clear that they had a familial relationship.

The trial court disregarded this testimony as evidence that Robertson was a "member of a household" including appellant. The psychologist's use of the term "family" and "familial relationship" as including appellant in a "familial relationship" with Johnson and Robertson is clearly incorrect as "family" is defined in the family code. See Tex. Fam. Code Ann. § 71.003 (Vernon 2002). Appellant was not related to either Johnson or Robertson by affinity or consanguinity. It appears the psychologist's understanding that Robertson lived with appellant and Johnson was based on the fact they spent a lot of time together. The statute, however, requires that persons constituting a "household" "liv[e] together in the same dwelling," not that they spend time together. Tex. Fam. Code Ann. § 71.005 (Vernon 2002). Accordingly, the trial court's finding that appellant and Robertson were not members of the same household is supported by the record. Because the record supports the trial court's finding that appellant and Robertson were not members of the same household, the trial court's conclusion that article 38.36(b) did not support admission of the psychologist's opinion of appellant's mental state at the time of the killing was within the zone of reasonable disagreement and was not an abuse of discretion. We overrule appellant's first point of error.

SUFFICIENCY OF THE EVIDENCE

In her second and third points of error, appellant contends the evidence is legally and factually insufficient to support the jury's implied finding that appellant's use of deadly force against Robertson was not justified. When reviewing the legal sufficiency of the evidence, this Court must examine the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In making this determination, the reviewing court considers all the evidence admitted including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001); Holberg v. State, 38 S.W.3d 137, 139 (Tex.Crim.App. 2000). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998); Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim.App. 1998). The standard of review in a circumstantial evidence case is the same as in a direct evidence case. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). In analyzing whether the evidence was factually sufficient to support the conviction, we must determine "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000) (adopting the complete civil factual sufficiency standard of review). We must set the verdict aside only if it is so factually insufficient or against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Id.; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In conducting this analysis, the appellate court must defer to the trier of fact's determination concerning the weight given contradictory evidence. Johnson, 23 S.W.3d at 8; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim. App. 1997); Santellan v. State, 939 S.W.2d 155, 164-65 (Tex.Crim. App. 1997). If the evidence raises self-defense, the State has the burden of persuasion in disproving the self-defense. Proving the offense beyond a reasonable doubt satisfies the State's burden. Saxton v. State, 804 S.W.2d 910, 913-14 (Tex.Crim. App. 1991); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). "[A] person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force." Tex. Pen. Code Ann. § 9.31(a) (Vernon 2003). The use of force against another is not justified:

if the actor provoked the other's use or attempted use of unlawful force, unless:

(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and

(B) the other nevertheless continues or attempts to use unlawful force against the actor. . . .

Id. § 9.31(b)(4). Section 9.32 authorizes the use of deadly force in the following circumstances:

(a) A person is justified in using deadly force against another:

(1) if he would be justified in using force against the other under Section 9.31;

(2) if a reasonable person in the actor's situation would not have retreated; and

(3) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to protect himself against the other's use or attempted use of unlawful deadly force; or

(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

(b) The requirement imposed by Subsection (a)(2) does not apply to an actor who uses force against a person who is at the time of the use of force committing an offense of unlawful entry in the habitation of the actor.

Id. § 9.32. In this case, no evidence shows Robertson used deadly force against appellant. Thus, appellant's use of deadly force against Robertson was not justified by section 9.32(a)(3)(A). Nor does the record contain any evidence appellant's use of deadly force was "to prevent [Robertson's] imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery." Id. § 9.32(a)(3)(B). Section 9.32 does not permit the use of deadly force to protect oneself against an assault. The evidence showed appellant had been in fights with Robertson in the past. The evidence also shows Robertson hit appellant in the head hard enough to raise a large knot above her right eye and a laceration below her left eye, but no evidence shows she feared for her life and used deadly force to prevent the imminent commission of murder. However, even if the evidence showed Robertson used deadly force against appellant, the jury was charged that it could find appellant's use of deadly force was not justified if it found appellant provoked Robertson into attacking her and stabbed him in pursuance of this plan.³ No one witnessed appellant stabbing Robertson. The jury heard appellant's version of events, as related by various witnesses reporting her statements. However, the jury could also interpret the evidence as showing appellant intended to kill Robertson by provoking him into attacking her when she would stab him to death and claim self defense. The jury could have found appellant procured the knife, hid it in the sofa, and taunted Robertson, provoking him to enter the house to attack her, and that she stabbed him to death in pursuance of her plan. The jury could also have concluded appellant taunted Robertson until he entered the residence, that she drew the knife to stab Robertson before he hit her, and that appellant suffered her injuries as a result of Robertson's trying to defend himself against her assault on him with the knife. After considering all the evidence under the legal and factual sufficiency standards, we hold the evidence is legally and factually sufficient to support the jury's implied finding that appellant's use of deadly force against Robertson was not justified. We overrule appellant's second and third points of error. We affirm the trial court's judgment.