No. 05-03-00584-CR
Opinion Filed June 29, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F02-40667-IL. Affirm.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
Opinion By Justice WRIGHT.
Susan Elizabeth Harris appeals her conviction for the murder of her husband, Robert Harris. After the jury convicted appellant, it assessed punishment at confinement for 23 years. In four issues, appellant contends the evidence is legally and factually insufficient to support her conviction; the jury's failure to find sudden passion was against the great weight and preponderance of the evidence; and the trial court erred by failing to instruct the jury on the lesser included offense of aggravated assault. We overrule appellant's issues and affirm the trial court's judgment.
Background
Jimmy Cooper testified that he worked for appellant driving a day care van and doing odd jobs. One evening, appellant called and asked Cooper to come to her house and help her with Harris, who had a history of seizures. When Cooper arrived at appellant's house, Harris was unconscious in the utility room. Cooper picked Harris up and took him to bed. A short time later, Harris regained consciousness and Cooper helped him to the bathroom. At the time, Cooper did not notice any bruises or cuts on Harris. Early the next morning, Cooper arrived at the house to get the day care van. Because the keys were not in the van as usual, Cooper went to the house for the keys. When Harris gave Cooper the keys, Cooper noticed Harris was "all beat up and bloody." Cooper left to drive the day care van route. Later in the morning, Cooper returned to the house to bring appellant cigarettes. When Cooper did so, he saw Harris "trying to get in the gate-the side gate, to feed the dogs." Harris was not dressed, he was only wearing his boxers which was "not his normal self." According to Cooper, Harris was "shaking real bad" and it was obvious something was wrong. Cooper fed the dogs for Harris and left. Later in the day, appellant called Cooper and asked him to come back to the house because Harris "had a seizure and fell out." When Cooper went into the house, he found Harris "lying in the middle of the floor." Appellant was pressing on Harris's chest, performing CPR. When Cooper told appellant to call the paramedics, she told Cooper they did not need to, they "needed to try and bring him back." Appellant also told Cooper that she had "stuck [Harris] in the back to get his attention." Eventually, Cooper convinced appellant to call 911 for assistance. Timothy Hockaday, a paramedic/firefighter for the Mesquite Fire Department, testified that when he arrived at the house, he found Harris lying on the floor with appellant kneeling beside him doing CPR. According to Hockaday, Harris had "numerous bruises over him," including "a real good bruise over one eye" and "what appeared to be a stab wound or cut above his right nipple." Harris had "lots of blood all over him." Later, Hockaday also noticed stab wounds on the back of Harris's neck and on the inside of his upper thigh. When Hockaday asked what had happened to Harris, appellant said he was in the garage and came inside and fell down. She did not give any explanation for the stab wound, but she claimed his black eye was from falling after a seizure the day before. Hockaday thought that both the number of bruises on Harris and the amount of time she attempted CPR before calling 911 was "odd." R.E. Bishop, a police officer for the City of Mesquite, testified that when he arrived at the house, Cooper, appellant, and appellant's mother were sitting in the living room. When Bishop walked through the house, he noticed "blood everywhere" in the house and in the garage. Appellant initially told Bishop that she came home from work and found appellant lying in the garage. She helped him to his feet and took him to the front bedroom, and then a short time later, helped him to another bedroom and then down the hall and into the living room. She indicated that in her opinion, Harris's wounds were self-inflicted. Bishop asked her to go to the living room and wait for him. Within seconds, he went to the living room but she was not there. When he found appellant, she was in the bedroom stripping the sheets from the bed. Bishop noticed that although appellant told her she had moved Harris from room to room, she did not have any blood on clothes and had only dried blood in and around the cuticle area of her fingers. She also had "splotches of blood" on her face as if she "had something on [her] skin and [she] just maybe wip[ed her] face or whatever, and it left streaks." Bishop did not notice any "hit marks or anything like that" on appellant. Nor did appellant indicate to Bishop that she had been assaulted by Harris. John McClure, a police officer/supervisor with the City of Mesquite, testified that he went to the hospital and photographed Harris's body and then examined Harris and appellant's house. At the house, he found blood in almost every room. He also found three bloody knives, one in a tray on top of the kitchen sink and two in the top tray of the dishwasher. McClure also found a vacuum cleaner with "blood and hair on certain areas . . . not consistent with just merely a transfer of that type of evidence." According to McClure, the knives and the vacuum were capable of being used as deadly weapons. Don Phillips, a detective with the Mesquite Police Department, testified that he interviewed appellant. Initially, appellant told him that she was not home when Harris was injured, she found him after coming home from running errands. Later that afternoon, after she had been Mirandized, appellant claimed some of Harris's wounds occurred during rough sex and others happened when she tried to protect her elderly mother from appellant who was "agitated" and was "cursing [appellant's mother] and saying horrible things to her." After she stabbed him in the back and in the chest, she worked on the typewriter for about twenty minutes. She then found him lying on the floor in the garage. Appellant helped Harris into the house and went to their bedroom where he fell onto the bed. He was having trouble breathing, so appellant helped Harris to her mother's room to get her oxygen tank and then took Harris into the living room and called Cooper to come help her. After Cooper arrived, she called 911. According to appellant, she injured Harris because he was threatening her mother and had been violent to appellant and her mother in the past. On cross-examination, Phillips testified that both appellant and Harris had a history of domestic violence. Staci Turner, a medical examiner for Dallas County, testified that she reviewed the report from Harris's autopsy. The report showed Harris had multiple blunt-force trauma injuries as well as sharp-force trauma injuries. The blunt-force injuries caused several tears or splits in his skin, multiple contusions and abrasions on his face, bleeding underneath his scalp and bleeding around his brain. According to Turner, it would have taken a significant amount of force to cause his injuries-similar injuries are seen in car accidents. Harris also had multiple blunt-force injuries to his neck, torso, arms, legs, and buttocks and had sustained a significant blow to his testicle. Harris's sharp-force injuries included incised wounds (wounds longer than deep) on his left upper eyelid, his right arm, and his neck. He had five stab wounds (wounds deeper than long) on the right side of his chest, his back, his left buttock, and his right thigh. Because of the number, extent, and type of wounds, Turner did not believe they were self-inflicted or the result of falling after a seizure. Elizabeth Flynn, appellant's 87 year-old mother, testified that the day before he died Harris "shoved [her] down flat, and [she] was unconscious." Flynn was very afraid of Harris because he hit her, and "constantly" called her names. Harris also was abusive to appellant and had been "almost since she married him" 28 years ago. Flynn did not see appellant stab or hit Harris and claimed she did not see blood all over the house because it was not there. Donna Marie Egbon, a former employee at appellant's day care center, testified that she worked for appellant for several years. During that time, she often saw appellant and Harris fighting. Appellant, at various times, had "glass cuts on the face, bruises on her legs," black eyes, and "busted lips" According to Egbon, appellant and Harris had a very "unstable relationship" and both drank and were battered spouses. Egbon had, on one occasion, seen appellant beat Harris. Theresa Calahan-Davis, also a former employee at the day care center, testified that Harris had an alcohol problem and was a "mean drunk." According to Calahan-Davis, one day Harris had been drinking when he telephoned the day care center and "said that he loved us, and the bullets was hitting the ground — hitting the floor. You can hear the bullets hitting the floor." Calahan-Davis, afraid Harris would hurt appellant, called appellant and told her to lock her door. However, on cross-examination, Calahan-Davis admitted that the day Harris died, she gave a statement to the police in which she explained that appellant was "a nice lady, but she has some mental problems . . . [appellant] would get mad at [Harris] and she would hit him with anything that was around . . . [Harris] never hit [appellant] . . . [b]ut she hit [Harris] all the time. No matter where she was, when she got mad . . . [Harris] would run from her. He never hit her." On redirect, Calahan-Davis explained that Harris was often drunk and said mean things when he was drunk but she had never seen Harris hit appellant. Appellant testified that Harris was a heavy drinker, usually drinking bourbon as soon as he awoke in the morning. When he was drinking, he was aggressive and mean. The evening before he died, he was "getting in [appellant's] mother's face . . . yelling and bitching and threatening her that he was going to kill her and dance on her grave." After appellant told them to stop she went to cook dinner. She heard her mother scream and found her mother in her room with appellant in the bed with her. Appellant convinced Harris to get out of the bed. Appellant was "really nervous" because Harris had been drinking more than usual. As he got out of bed, Harris "came at" appellant so she reached into a nearby drawer and grabbed a pair of shears. Harris and appellant struggled over the shears. During the struggle, appellant stabbed Harris on the right side of his chest with the shears. Harris left the house and appellant went to sleep. Later, appellant got up and looked to see if Harris had returned to the house. She found him in the garage lying down on the concrete floor in his boxers. Appellant got him up and they started back into the house. As she started walking up the stairs into the house, Harris knocked her off of the steps and she fell into his toolbox. Her "hand went around a hammer. [She] had a hammer in [her] hand, and [she] came up and hit him in the head." According to appellant, she did so because Harris was walking toward her mother's room and she was "scared for both of our lives. Especially [her] mother's life, because he hated [her] mother." After appellant hit Harris in the head with the hammer, he went into the bathroom. He turned around and "fell in [appellant's] arms." She "half drug him and carried him toward the hall" and put him down. Appellant then got her mother's oxygen and took it and Harris into the living room, placed the oxygen mask on him and started CPR. Appellant testified that she did not remember each bruise or cut on Harris, but some of the bruises may have been where Harris fell after having a seizure and some may have been from falling while he had been drinking. Harris explained that she did not tell the truth in her written statements to the police because she was trying to protect her day care license. After hearing this and other evidence, the jury convicted appellant of murder. This appeal followed. Defense of a Third Person
In her first and second issues, appellant contends the evidence is legally and factually insufficient to support her conviction. Specifically, she argues that the evidence at trial established that she acted in defense of her mother, and a rational jury could not have found against her on the legal justification defense of a third person. We disagree. When an appellant challenges the legal sufficiency of the rejection of a defense, we view all the evidence in the light most favorable to the verdict and ask if "any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt and also could have found against appellant on the defensive issue beyond a reasonable doubt." Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). When an appellant challenges the factual sufficiency of the rejection of a defense, we review all of the evidence in a neutral light and determine whether (1) considered by itself, the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt; or (2) considering both evidence supporting the verdict and evidence contrary to the verdict, the evidence supporting the defense is strong enough that the jury's rejection of the defense does not meet the beyond-a-reasonable doubt standard. See Zuniga v. State, No. 539-02, 2004 WL 840786, at * 7 (Tex.Crim.App. Apr. 21, 2004); Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). The State is not required to affirmatively produce evidence to refute a defendant's defense claim, but must prove its case beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914. In this case, there is no dispute that appellant killed Harris, the issue is whether she was justified in doing so. A person is justified in using deadly force to protect another if he would be justified in using deadly force to protect himself against the unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and (2) the actor reasonably believes that his intervention is immediately necessary to protect the third person. See Tex. Pen. Code Ann. § 9.33 (Vernon 2003). Viewing the evidence in the light most favorable to the verdict, the record shows appellant and Harris had a very troubled and extremely violent relationship. Several witnesses reported seeing appellant hit Harris and he was often bruised and afraid. The autopsy showed Harris suffered numerous injuries including five sharp force injuries and several blunt force injuries. The police reported finding blood in "every room in the house." Nevertheless, appellant did not seek professional medical help for Harris for an extended period of time. Finally, appellant initially told police she was not home when Harris was injured, but found him in that condition when she came home from running errands. She next told police that his injuries were from consensual rough sex and from falling after having a seizure. Later, she claimed she stabbed Harris with shears after she heard her mother screaming and she found Harris in the bed with her mother. A few hours after that, she found Harris in the garage and as she was helping him into the house, he pushed her off the stairs. She was afraid Harris was going to kill her mother, so she hit him twice in the head with a hammer. Given her violence against Harris in the past, the number, extent and type of wounds, and the number of conflicting explanations appellant gave as to the cause of Harris's injuries, we conclude a rational jury could have found beyond a reasonable doubt that appellant intentionally or knowing caused Harris's death and that she was not justified in using deadly force against Harris to protect her mother. Thus, we conclude the evidence is legally sufficient to support appellant's conviction for murder. We overrule appellant's first issue. Viewing all of the evidence equally, we likewise conclude that the evidence is factually sufficient to support appellant's conviction. We recognize that there is some evidence supporting appellant's version of the incident. For example, several witnesses, including appellant's mother testified that Harris was a "mean drunk" and had threatened to kill appellant's mother in the past. According to appellant, in the hours preceding Harris's death, he was the most aggressive she had ever seen him and he threatened her mother and told her he "would kill her and dance on her grave." Nonetheless, this evidence does not render the State's evidence insufficient, it merely raises an issue of credibility. See Saxton, 804 S.W.2d at 914. The jury, not this Court, assesses the truth or falsity of the evidence and determines the credibility of the witnesses. After examining all of the evidence under the applicable standard of review, we cannot conclude that the evidence produced by the State is factually insufficient to support appellant's conviction. We overrule appellant's second issue. Sudden Passion
In her third issue, appellant contends the jury's failure to find that appellant acted under the immediate influence of sudden passion is so against the great weight and preponderance of the evidence so as to be manifestly unjust. Again, we disagree. The defendant bears the burden of proving a sudden passion issue at punishment by a preponderance of the evidence. See Tex. Pen. Code Ann. § 19.02 (Vernon 2003). We review an appellant's challenge to the sudden passion finding using the same standard of review as a challenge to the rejection of an affirmative defense. See Naasz v. State, 974 S.W.2d 418, 421 (Tex. App.-Dallas 1998, pet. ref'd). That standard requires us to determine whether the negative finding is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. See Zuliani, 97 S.W.3d at 594. Appellant relies on the same evidence in support of the sudden passion issue as she did on her defense of a third person issue. Much of the evidence of provocation arose long before Harris was killed. With respect to the immediate causes to which appellant testified, the jury could have disbelieved appellant's testimony that Harris incited her to more than ordinary fear in light of her changing story about the circumstances of the killing and the number, extent, and type of Harris's wounds. See Naasz, 974 S.W.2d at 421; Dudley v. State, 992 S.W.2d 565, 569 (Tex. App.-Texarkana 1999, no pet.). After reviewing the evidence under the applicable standard, we cannot conclude the jury's failure to find sudden passion was so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. We overrule appellant's third issue. Lesser Included Offense Instruction
In her fourth issue, appellant contends the trial court erred by failing to charge the jury on the lesser included offense of aggravated assault. In support of this argument, appellant relies on her testimony that she did not intend to kill Harris and questions whether hitting Harris on the head with a hammer was an act clearly dangerous to human life. Aggravated assault may be a lesser included offense of murder. See Forest v. State, 989 S.W.2d 365, 367-68 (Tex.Crim.App. 1999). However, because the testimony relied on by appellant to raise the issue of aggravated assault shows murder under section 19.02(b)(2) of the penal code, she was not entitled to the lesser included instruction. See id.; Harrell v. State, 659 S.W.2d 825, 827 (Tex.Crim.App. 1983). Appellant admitted to hitting Harris in the head twice with a hammer. Regardless of whether she intended to kill Harris, this testimony shows she intended to cause serious bodily injury to Harris and that she committed an act clearly dangerous to human life. See Jackson v. State, 115 S.W.3d 326, 329 (Tex. App.-Dallas 2003, pet. granted); Smith v. State, 881 S.W.2d 727, 735 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd). Because appellant's testimony shows her, at the least, to be guilty of murder under section 19.02(b)(2), it did not constitute evidence that if she was guilty, she was guilty only of aggravated assault. Therefore, appellant was not entitled to an instruction on aggravated assault and the trial court did not err by refusing to charge the jury on that offense. Jackson, 115 S.W.3d at 330-31. We overrule appellant's fourth issue. Accordingly, we affirm the trial court's judgment.