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addressing inadequately briefed argument in the interest of justice
Summary of this case from Walker v. StateOpinion
No. 05-15-00086-CR
04-27-2016
CHARLES JAMISON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court Dallas County, Texas
Trial Court Cause No. F11-54109-V
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Schenck
Opinion by Justice Lang-Miers
Appellant Charles Jamison appeals his conviction for the murder of John Taylor. Appellant confessed to shooting Taylor, his friend since childhood, outside a barbershop at Abrams and LBJ in Dallas. At trial, appellant contended he shot Taylor in self-defense and out of sudden passion. The jury rejected both defenses and assessed appellant's punishment, enhanced by a prior conviction for aggravated assault, at 50 years' incarceration.
On appeal, appellant contends that (1) the jury's rejection of his self-defense claim is against the great weight and preponderance of the evidence; (2) the trial court erred by denying his motion to suppress; (3) the jury charge in the guilt phase contained error because it defined reasonable doubt; (4) the trial court did not have jurisdiction of the case; (5) the jury's finding rejecting his claim of sudden passion is against the great weight and preponderance of the evidence; and (6) the jury charge in the punishment phase contained error because it gave the jury a good-conduct instruction and appellant was not eligible for good-conduct credit. We affirm the trial court's judgment.
JURISDICTION OF THE TRIAL COURT
We address issue four first because, if sustained, it would be dispositive of this appeal. Appellant argues that the district court that tried his case did not have jurisdiction to render judgment because the indictment was filed in a different district court—the court that empaneled the grand jury—and was never transferred out of the filing court to the court that tried the case. Appellant acknowledges that case authority is against his position, but he contends that those cases "simply cite to their antecedents without any [c]onstitutional or statutory authority for the proposition that a jurisdictional defect can be cured by procedural default." We disagree.
We have held that the lack of a transfer order from one district court to another district court in the same judicial district is a procedural, not jurisdictional, error, and that the appellant must interpose a plea to the jurisdiction in the trial court to prevent waiver of the complaint on appeal. See Mills v. State, 742 S.W.2d 831, 834-35 (Tex. App.—Dallas 1987, no pet.); see also Flores v. State, 487 S.W.2d 122, 125 (Tex. Crim. App. 1972); Daniels v. State, 352 S.W.2d 267, 268 (Tex. Crim. App. 1961). Appellant did not raise a plea to the jurisdiction in the trial court, and he may not do so for the first time on appeal. See Mills, 742 S.W.2d at 834-85. We resolve issue four against appellant.
SELF-DEFENSE
In issue one, appellant complains that the evidence is insufficient to support the jury's rejection of his claim of self-defense. In our review of this issue, we examine all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact would have found the essential elements of the offense beyond a reasonable doubt and against the appellant on the claim of self-defense beyond a reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). Appellant's burden was to produce some evidence to support his claim of self-defense. See TEX. PENAL CODE ANN. § 2.03 (West 2011). The State's burden was to prove its case beyond a reasonable doubt. See Saxton, 804 S.W.2d at 913-14. Whether appellant acted in self-defense was a fact issue for the jury to decide. Id. The jury was free to believe or not believe any defensive evidence on that issue, and by returning a guilty verdict, the jury implicitly rejected appellant's claim of self-defense. See id. And we must presume the jury resolved conflicts in the evidence in favor of the verdict. See Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012).
Appellant and Taylor had been best friends since childhood, but their "friendship soured and they became enemies" after they both grew up to become drug users and dealers. In the days before the shooting, appellant and Taylor traded "death threats" back and forth via text messages. Appellant said Taylor "followed up on his threats to some extent by shooting Appellant's car and [appellant's] mother's house." Appellant testified that he became "concerned" about Taylor's "escalating use of PCP and the fact that he began to carry a gun at all times." Appellant said he "feared that [Taylor] had put out a hit on him and that he could be attacked at any time"; appellant began to carry a gun because he was "so alarmed."
The day before the shooting, appellant sent Taylor (also known as "Dirty" or "Dirt") a text message that the detective interpreted as threatening Taylor's life:
U gone hv 2 make me a believer jus tell me where u at it really doesnt matter ima make u n whoevas riding w/u kome 2 me nigga hope yall really rdy 4 this shit kuz yall aint showing me shit but tht yall aint about ths shit nigga kick n sum doors n kum n blazin 4 murder bitch then I might lose sum sleep but till them im laughn at u fuk niggaz u niggaz so high yall jus gone stand out side ur goons mama hs ima jus waitn on ths money 4rm ur people thenur going 2 feel this shit hope yall got run money u n ur people aint nobody safe dirt n jus remember yall took it there shouldve killd her shouldve killd me u not bout ths shit but I wont text ur phone ne more hv fun 2day kuz its raining 2morrow
Appellant testified that on the day of the shooting, he went to an apartment complex near the shopping center where the barbershop was located in order to make a drug sale. He said he did not go to the shopping center looking for Taylor. After the drug transaction, he walked through the parking lot of the shopping center headed to a gas station to meet his ride. When he turned the corner he "encountered" Taylor "hanging out with his associates behind the barbershop." Appellant said Taylor "was standing with his right shoulder toward" him, and he saw Taylor "reach for his gun." Appellant reached for his gun and fired three shots; one of the shots hit and killed Taylor.
On cross-examination, appellant testified that a friend told him that "she had a discrepancy with" Taylor; she also told him that Taylor was at the barbershop. She drove to get appellant and took him to the apartments near the barbershop. She waited for appellant at a gas station. After appellant shot Taylor, he ran to the gas station, got in his friend's car, and she took him to Grandy's. Appellant hid the gun in the Grandy's bathroom while he waited for a different ride. When his ride came, he got the gun and left. Another friend took the gun, broke it down into several pieces, and discarded the pieces.
At some point appellant sent a text to someone stating, "I got him on Abrams." Before the detectives asked appellant about that text, appellant told them they would find a text on his phone but it had nothing to do with Taylor's murder. He said the text was "extra extra extra coincidental as shit" and "was in reference to my son in the barbershop across the highway earlier that day."
The medical examiner testified that the cause of Taylor's death was a "gunshot wound of the back." The bullet entered the right side of Taylor's upper back/shoulder area and traveled through the right lung, esophagus, aorta, and left lung. The direction of the bullet was "right to left, back to front, and downward." The medical examiner was unable to determine the distance from which the bullet was fired. The police did not find a gun on or near Taylor, and Taylor's girlfriend said he did not carry a gun. Appellant said the "dudes" Taylor was hanging out with at the barbershop were the types that would take the gun and not report it to the police.
Appellant argues that "[t]here is no testimonial, physical, or scientific evidence in the record that contradicts [his] testimony." And he contends that while "a jury is free to credit none, part, or all of a witness's testimony it is not free to ignore the only evidence concerning an element of the offense or of a justification for committing the act." He argues that the jury "ignored the only probative evidence on the issue of self-defense" and that the jury's implicit finding that his conduct was unjustified beyond a reasonable doubt lacks evidentiary support making the verdict irrational.
We disagree. The jury may ignore evidence that it concludes is not credible. See Saxton, 804 S.W.2d at 913-14. The jury judged the credibility of the evidence and rejected appellant's claim of self-defense. The jury reasonably could have concluded based on the evidence that Taylor did not have a gun because no gun was found on or around Taylor, and Taylor's girlfriend testified that Taylor did not carry a gun. The jury reasonably could have concluded that appellant went to the shopping center looking for Taylor because appellant testified that a friend had a "discrepancy" with Taylor, told him Taylor was at the barbershop, drove him there, and waited on him, and because appellant sent Taylor a threatening text message the day before the shooting. The jury also saw the videotape of appellant's interrogation, his confession to the crime, and his demonstration of the shooting. And the medical evidence showed that Taylor was shot in the back. Having reviewed the record, we conclude that a rational jury could have rejected appellant's claim of self-defense beyond a reasonable doubt. We resolve issue one against appellant.
MOTION TO SUPPRESS
In issue two, appellant argues that the trial court abused its discretion by denying his motion to suppress because during the police interview he "invoked his right to counsel with sufficient clarity that questioning should have ceased [and his] later incriminating statement should have been suppressed." Appellant did not file a written motion to suppress; he urged an oral motion. On appeal, appellant's entire analysis as it relates to this issue states:
In the instant case the interrogation lasted over 7 hours. During that time Appellant stated he shouldn't be talking without counsel several times. And each time one or both of the interrogators treated the statement as if it were trivial or simply ignored it and continued to question Appellant. A review of the entire seven and one-half hour interrogation, applying common sense causes any objective viewer to reach the conclusion that Appellant invoked his right to counsel and the Trial Court erred by failing to suppress the confession. Therefore this case must be reversed on this basis.
Appellant directs us to the entire police interview, which as he states lasted over seven hours. He does not direct us to any particular statement that he wished to suppress, nor does he cite the record where he unequivocally invoked his right to counsel. Appellant has the duty to cite to the relevant portions of the record. See TEX. R. APP. P. 38.1(h); see also Dunn v. State, 951 S.W.2d 478, 479-80 (Tex. Crim. App. 1997). Nevertheless, the trial court referred to a portion of the record about which appellant complained during the hearing, and the State has cited portions of the record in its appellate briefing. We will, in the interest of justice, address appellant's claim in light of those record cites.
The video of appellant in the interrogation room is actually about ten hours, but for about three of those hours he was not being questioned. --------
In reviewing a trial court's ruling on a motion to suppress evidence, we give almost total deference to the trial court's determination of historical facts, and we review de novo the trial court's application of the law to the facts. See Wade v. State, 422 S.W.3d 661, 666-67 (Tex. Crim. App. 2013); Wilson v. State, 311 S.W.3d 452, 457-58 (Tex. Crim. App. 2010). The trial court, as the sole trier of fact and judge of credibility, is free to disbelieve even uncontroverted evidence. See State v. Maldonado, 259 S.W.3d 184, 194 (Tex. Crim. App. 2008).
At the hearing, appellant did not contend that he was questioned without being warned of his rights. Instead, his complaint was that he invoked his right to counsel during the interrogation, but the detectives ignored him and continued to question him. Appellant testified that he had not slept for about four or five days prior to his arrest, "my best friend events I was going through," and he "was under the influence of handlebars, PCP, syrup." He testified that he said on "multiple instances throughout the interrogation" that he "want[ed]" or "need[ed] a lawyer." One of the detectives testified that appellant "brought up the lawyers" and said things like, "I shouldn't be doing this" or "lawyers probably wouldn't want [me] to talk" and that sort of thing. But when the detectives offered to stop the interview and get him a lawyer, appellant did not ask for a lawyer and, instead, chose to talk to the detectives.
Appellant argued that every time he mentioned a lawyer during the interrogation, the detectives "would gloss over it. They would say, you know, attorney blah, blah, blah, and then just start going back into the line of questioning." Appellant argued that what the detectives should have done is stop the interview at the mention of a lawyer and get him a lawyer so "everything [is] on the up and up."
The trial judge noted that he had reviewed the portion of the interview time stamped from 9:00 p.m. until 9:30 p.m. because appellant's counsel "indicated to me that this was the most illustrative of his objections . . . . In other words, . . . he told me that that was the crux of the matter . . . regarding an unambiguous invocation of his right to an attorney." In his findings of fact and conclusions of law, the judge found "that at no time before the making of the statement did the [appellant] assert his right to remain silent or ask to terminate the interview." The court denied the motion to suppress.
Having reviewed the record, we agree with the trial court that appellant did not invoke his right to counsel. Although appellant made comments about how he was talking to the detectives without a lawyer, he did not ask for a lawyer. The detectives, more than once when appellant made those comments, asked appellant if he wanted a lawyer and told appellant they would get him a lawyer. But appellant never asked for a lawyer, said "I'm cool," and one time said he would hire a lawyer later. Consequently, appellant did not unequivocally invoke his right to counsel, and the trial court did not abuse its discretion by denying appellant's motion to suppress. We resolve issue two against appellant.
JURY CHARGE ERROR
Appellant argues that the trial court erred in charging the jury. In reviewing a claim of charge error, we first determine whether the charge contained error. See Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015); Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). If the charge did not contain error, our analysis stops.
Reasonable Doubt Charge
In issue three, appellant argues that the trial court "committed structural error" by giving the jury a definition of reasonable doubt in the charge on guilt/innocence. Appellant did not object to this jury instruction, which stated:
It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all reasonable doubt concerning the defendant's guilt.
Appellant acknowledges that this Court has considered this exact language before and concluded it did not define reasonable doubt. See O'Canas v. State, 140 S.W.3d 695, 699-702 (Tex. App.—Dallas 2003, pet. ref'd). But appellant disagrees with our analysis in O'Canas and argues that the quoted language does define reasonable doubt. And he contends that his conviction should be reversed without a harm analysis. We decline appellant's urging to re-visit our O'Canas opinion and conclude that the jury charge did not contain error. We resolve issue three against appellant.
Good-Conduct Time
In issue six, appellant argues that the trial court erred by including a parole law instruction in the charge on punishment because he was not eligible for good-conduct credit. He argues that the jury was misled by this instruction, which egregiously harmed him. Appellant did not object to the inclusion of the instruction.
The Code of Criminal Procedure states that a trial court "shall charge" the jury about parole law and good-conduct time. TEX. CODE CRIM. PROC. ANN. art. 37.07(4)(a) (West Supp. 2015). This is so even when a particular defendant is not eligible for parole. See Luquis v. State, 72 S.W.3d 355, 360-68 (Tex. Crim. App. 2002). Because the Texas Legislature mandated the inclusion of this parole law instruction, a trial court is not at liberty to ignore it and does not commit error by giving it. Id. at 363.
The punishment charge in this case contained the parole law instruction required by the Legislature in article 37.07(4)(a). Consequently, appellant has not shown that the trial court erred. See id. We resolve issue six against appellant.
SUDDEN PASSION
In issue five, appellant argues that the jury's finding during the punishment phase that he did not act out of sudden passion is against the great weight and preponderance of the evidence. This is a factual sufficiency complaint. See Butcher v. State, 454 S.W.3d 13, 20 (Tex. Crim. App. 2015).
When a defendant has been found guilty of murder, he may seek a reduction in punishment by proving that he caused the death "under the immediate influence of sudden passion arising from an adequate cause." TEX. PENAL CODE ANN. § 19.02(d) (West 2011); Wooten v. State, 400 S.W.3d 601, 605 (Tex. Crim. App. 2013). Sudden passion is "passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed" and arises at the time of the offense. TEX. PENAL CODE ANN. § 19.02(a)(2). Adequate cause is a "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. § 19.02(a)(1). "The record must also contain evidence from which the jury could subjectively decide the accused killed the victim while in an excited and agitated state of mind arising out of the direct provocation." Naasz v. State, 974 S.W.2d 418, 424 (Tex. App.—Dallas 1998, pet. ref'd).
The defendant has the burden to prove sudden passion by a preponderance of the evidence. TEX. PENAL CODE ANN. § 19.02(d). In our review, we consider all the evidence in a neutral light, bearing in mind that the jury assesses the weight of the evidence and the credibility of the witnesses' testimony. See Butcher, 454 S.W.3d at 20; Matlock v. State, 392 S.W.3d 662, 671 (Tex. Crim. App. 2013). We will sustain a defendant's factual sufficiency claim only if the verdict is so against the great weight of the evidence as to be manifestly unjust, conscience-shocking, or clearly biased. Butcher, 454 S.W.3d at 20; Matlock, 392 S.W.3d at 671.
Appellant contends that "he was in a state of terror" when he shot Taylor because
• a couple of days before the shooting, Taylor shot at appellant's vehicle while appellant was standing beside it and then texted appellant saying the next time he would not miss;
• Taylor allegedly shot at appellant's mother's house that same week;
• Taylor texted appellant stating he intended to rape and kill appellant's wife;
• Taylor was addicted to "PCP" and had "violent outbursts";
• Taylor carried a gun.
Appellant argues that because of all these things, when he "happened upon Taylor and his associates behind the barbershop" a few days later, he was "in a state of terror, [and] shot and killed Taylor." Appellant testified that he "thought he saw[] Taylor reach for his gun" before he shot Taylor. But the sudden passion that constitutes a legally adequate cause requires evidence that "the sudden passion was directly caused by and arose out of provocation by the deceased at the time of the offense." McKinney v. State, 179 S.W.3d 565, 570 (Tex. Crim. App. 2005); see also TEX. PENAL CODE ANN. § 19.02(a)(2). The circumstances must be such as "to give rise to an immediate influence of sudden passion." McKinney, 179 S.W.3d at 570; see also TEX. PENAL CODE ANN. § 19.02(a)(2). But here the record does not contain evidence that Taylor or anyone with Taylor provoked appellant at the time of the shooting. Instead, the evidence showed that the dispute between appellant and Taylor occurred before the day of the shooting, giving appellant time for cool reflection. See McKinney, 179 S.W.3d at 570; see also TEX. PENAL CODE ANN. § 19.02(a)(1). Additionally, appellant had been told Taylor was at the barbershop, appellant went to that location with a loaded gun, appellant had sent a threatening text to Taylor the day before, Taylor was shot in the back, and the jury rejected appellant's claim that he shot Taylor in self-defense.
Having reviewed all the evidence in a neutral light, we cannot conclude that the jury's rejection of appellant's claim that he acted out of sudden passion is so against the great weight and preponderance of the evidence as to be manifestly unjust. We resolve issue five against appellant.
CONCLUSION
We affirm the trial court's judgment.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b) 150086F.U05
JUDGMENT
On Appeal from the 292nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F11-54109-V.
Opinion delivered by Justice Lang-Miers. Justices Bridges and Schenck participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 27th day of April, 2016.