Opinion
07-22-00290-CR
08-08-2023
MARTIN CHARLES WILSON, APPELLANT v. THE STATE OF TEXAS, APPELLEE
Do not publish.
On Appeal from the 213th District Court Tarrant County, Texas Trial Court No. 1600734D, Honorable Chris Wolfe, Presiding
Before QUINN, C.J. and DOSS and YARBROUGH, JJ.
Because this matter was transferred from the Second Court of Appeals, we apply its precedent when it conflicts with that of the Seventh Court of Appeals. Tex.R.App.P. 41.3.
Brian Quinn Chief Justice
Martin Charles Wilson appeals his conviction for murder and raises three issues. Through them, he asserts that 1) the trial court abused its discretion by excusing a juror over his objection; 2) the trial court erred in failing to instruct the jury on the issue of sudden passion at the punishment stage of trial; and 3) the trial court abused its discretion in failing to give the jury a contemporaneous instruction limiting the jury's consideration of an extraneous offense. We will affirm.
Background
At the time of the murder, appellant was staying at his Uncle James's welding shop, but his uncle had threatened to turn him out unless he started paying rent. Appellant, along with several other people, was at the shop on the day of the killing. James left to work on a job; his two grandsons remained. Appellant's cousin visited later, and the two left together. Not long after, the cousin returned angry without appellant. Apparently, she and appellant had argued. Appellant eventually returned as well. He too was angry and uttered threats against both his cousin and uncle.
James returned, parked his vehicle in front of the shop, remained inside, and spoke to a grandson for about five minutes. At that time, appellant was in the shop office but left it to approach James's vehicle. Upon arriving at the vehicle, he began yelling at James. That led to his returning to the shop, obtaining a firearm, returning to the vehicle, shooting James ten times, and walking away with gun and cell phone in hand. James died as a result of being struck with the bullets.
Issue One-Excusing Juror
Via his first issue, appellant claims the trial court erred in excusing a juror who, after the first day of trial, informed the court she could not continue due to her difficulty with understanding English. According to the record, she spoke Persian as her primary language and understood only about 50 percent of the testimony she had heard that day. Given this lack of understanding, the juror told the trial court that she would not vote if required to remain on the jury. That resulted in the trial court replacing the juror with an alternate, over appellant's objection. We overrule the issue.
The State argued below that the juror's inability to understand English rendered her disabled under article 36.29 of the Texas Code of Criminal Procedure. That statute addresses when the remainder of a jury in a felony trial may continue when a juror dies or becomes disabled. TEX. CODE. CRIM. PROC. ANN. ART. 36.29(A) (SO INDICATING). ARTICLE 33.011(B) OF THAT STATUTE CONCERNS WHEN AN ALTERNATE JUROR MAY REPLACE AN ORIGINAL ONE. IT PROVIDES THAT "[A]LTERNATE JURORS . . . SHALL REPLACE JURORS WHO, PRIOR TO THE TIME THE JURY RENDERS A VERDICT ON THE GUILT OR INNOCENCE OF THE DEFENDANT AND, IF APPLICABLE, THE AMOUNT OF PUNISHMENT, BECOME OR ARE FOUND TO BE UNABLE OR DISQUALIFIED TO PERFORM THEIR DUTIES OR ARE FOUND BY THE COURT ON AGREEMENT OF THE PARTIES TO HAVE GOOD CAUSE FOR NOT PERFORMING THEIR DUTIES." Id. at art. 33.011(b).
Assuming arguendo that error occurred, see Stillwell v. State, 466 S.W.3d 908, 912 (Tex. App.-Fort Worth 2015, no pet.) (concluding that an inability to understand English is not a disability under article 36.29(a)), the mistake is subject to a nonconstitutional harm analysis. Whitehead v. State, 437 S.W.3d 547, 556 (Tex. App.- Texarkana 2014, pet. ref'd); Sandoval v. State, 409 S.W.3d 259, 280 (Tex. App.-Austin 2013, no pet.). A defendant is not harmed by error in discharging a juror if the record shows that an alternate was subjected to the same selection process, was properly sworn, heard all the evidence, heard the trial court's charge, and was seated before deliberations. Whitehead, 437 S.W.3d at 556. That is the case here. The alternate went through the same selection process as the other jurors, was properly sworn, was present and heard all the evidence, heard the trial court's jury charge, and became a juror before deliberations began. Given these circumstances, appellant was not harmed by the purported error.
Issue Two-Sudden Passion
By his second issue, appellant claims the trial court erred when it denied his request to include in the punishment charge an instruction regarding sudden passion. We overrule the issue.
Whether the trial court was obligated to instruct the jury on sudden passion requires us to focus on the evidence supporting that charge, not refuting it. Trevino v. State, 100 S.W.3d 232, 239 (Tex. Crim. App. 2003). Furthermore, the trial court must submit the charge if evidence from any source raised the matter and the defendant properly requested the charge. Id. at 238. The evidence raising the issue may be either strong, weak, contradicted, unimpeached, or unbelievable. Id. But, there must be evidence, for if there is none, we must affirm the denial of its submission. McKinney v. State, 179 S.W.3d 565, 571 (Tex. Crim. App. 2005).
Among the various components of sudden passion is proof "that the passion [was] caused by and arising out of provocation by the individual killed." Id. at 571; Saenz v. State, 930 S.W.2d 249, 251 (Tex. App.-Amarillo 1996, no pet.). Moreover, the provocation must be contemporaneous, for passion arising from former provocation is insufficient. Saenz, 930 S.W.2d at 251. Here, the alleged provocation consisted of the decedent having sometime earlier informed appellant about needing to help out, pay rent or leave. Appellant cites us to no evidence indicating that this was said by the decedent immediately prior to being shot. Nor did he cite us to any evidence of the decedent saying or doing anything else immediately before or contemporaneously with the shooting. Having failed to illustrate the existence of a contemporaneous provocation, appellant did not show himself entitled to the requested charge.
We further note that the requisite provocation must be of the ilk that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper. Reese v. State, No. 07-19-00253-CR, 2020 Tex.App. LEXIS 3771, at *18-20 (Tex. App.-Amarillo May 4, 2020, pet. ref'd) (mem. op., not designated for publication); see e.g., Longoria v. State, No. 07-21-00313-CR, 2023 Tex.App. LEXIS 381, at *10 (Tex. App.-Amarillo Jan. 23, 2023 pet. ref'd) (mem. op., not designated for publication) (holding that an ordinary person would not commit murder based on the victim making disparaging remarks). Asking someone to show some responsibility by paying rent, helping out, or moving does not satisfy that threshold. So, again, the evidence of requisite components to sudden passion remained non-existent.
Issue Three-Limiting Instruction
Lastly, appellant argues the trial court abused its discretion when it failed to provide the jury a contemporaneous instruction limiting its consideration of evidence regarding extraneous offenses or bad acts. The evidence consisted of appellant's threats to harm a cousin, which threats were uttered shortly before shooting his uncle. Though appellant did not seek to exclude the evidence, he did want the court to instruct the jury on the limited ways in which it could be considered. The State viewed the evidence as same transaction contextual evidence to the murder and subject to consideration for all purposes. The trial court denied appellant the instruction, and we overrule his issue.
Same transaction contextual evidence is admissible as such and not subject to the requirement of a limiting instruction. Devoe v. State, 354 S.W.3d 457, 471 (Tex. Crim. App. 2011); Camacho v. State, 864 S.W.2d 524, 534-35 (Tex. Crim. App. 1993). This is true even if the evidence is comprised of extraneous offenses. Devoe, 354 S.W.3d at 471 (involving extraneous offenses which were deemed same transaction contextual evidence). Appellant makes no effort to illustrate that the evidence in question was not same transaction contextual evidence. This is problematic since it is an appellant's burden to establish error on appeal. Lee v. AG Tex. Farm Credit Servs., No. 07-21-00129-CV, 2021 Tex.App. LEXIS 9789, at *6 (Tex. App.-Amarillo Dec. 8, 2021 pet. denied) (mem. op.). Here, that entailed appellant showing the evidence at issue was not contextual in nature. See id. at *6 (stating that the appellate burden includes illustrating how the reasons underlying the trial court's decision were invalid). So, having failed in that regard, he did not establish that the trial court committed error in withholding the instruction.
Overruling each issue, we affirm the judgment of the trial court.