Shane Edward Drousche v. State ( 1997 )

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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-96-00442-CR

Shane Edward Drousche, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
NO. 95-766-K368, HONORABLE BURT CARNES, JUDGE PRESIDING

Shane Edward Drouche, appellant, was convicted of murder. Tex. Penal Code Ann. § 19.02 (b)(2) (West 1994). The jury assessed his punishment at 60 years' imprisonment. In his sole point of error, appellant complains of the trial court's denial of appellant's request at the punishment phase to charge the jury on the mitigation of punishment for murder committed under the influence of sudden passion arising from an adequate cause. We will affirm the judgment.
Since September 1, 1994, voluntary manslaughter is no longer a separate offense but is a punishment issue in a murder case. See Tex. Penal Code Ann. § l9.02 (d) (West 1994). A defendant convicted of murder may raise the issue whether he caused the death under the immediate influence of sudden passion arising from an adequate cause at the punishment stage of the trial. If he proves this issue by a preponderance of the evidence, then the offense is lowered from a felony of the first degree to a felony of the second degree with a range of imprisonment from two to twenty years. See Rainey v. State, 949 S.W.2d 537, 540-41 (Tex. App.--Austin l997, pet. filed) (describes and discusses change of § 19.02(d)); Robinson v. State, 945 S.W.2d 336, 340-42 (Tex. App.--Austin l997, pet. filed) (§ 19.02(d) does not violate due process). Appellant committed the offense in this case on November 29, 1995, thus, he could raise the mitigation issue under this provision. Appellant contends that he was entitled to have the jury charged on the issue, while the State's position is that there was no evidence to raise the issue for the jury's consideration.

BACKGROUND

On the night of November 29, 1995, C.W. Dean told his mother that he was going outside to talk to Stephanie Meyer and Tonya Bowie who were going to drive by and visit for a few minutes. Dean and Stephanie were l6-year-old high school students. Stephanie had recently ended a relationship with appellant and had begun dating Dean. Appellant was l7 years old and had dropped out of school. Earlier in the evening, appellant had visited Stephanie at a restaurant where she worked. Appellant asked to renew the relationship, but Stephanie declined. Appellant left in his truck with two male friends. Appellant was angry and told his friends that he was "going to kick C.W.'s ass." Appellant drove to Dean's home, got out of the truck and approached Dean, who was sitting on a car in his driveway waiting for the girls. Appellant asked if Dean had seen Stephanie and he replied, "No." Appellant then asked Dean if he had heard that appellant wanted to kick Dean's ass. Dean said that he had not heard that. Appellant then told Dean that he was going to do just that. Dean replied, "Yeah, whatever." Appellant then began to beat Dean, striking him several times on the face and head. After Dean fell to the ground, appellant kicked him several times in the body and head with his boots. Finally, appellant stepped back several steps, ran toward Dean who was kneeling on the ground and kicked him in the head with tremendous force. One of appellant's friends who was present described the kick to the head as being like somebody punting a football. Appellant and his friends drove away and left Dean twitching on the ground. Appellant told them that he felt good about the beating and bragged that he had never hit anyone that hard. During the entire encounter, Dean never raised a hand to hit appellant. Appellant testified that before he began kicking Dean he knew that Dean was defenseless and was not a threat. A few minutes after this beating, the girls arrived and found Dean lying on the ground; they called Dean's mother who came out and tried to revive him. Dean never regained consciousness. EMS arrived within minutes, but the personnel could not detect a pulse and could not stimulate the heart with shock or medication. An EMS worker testified that Dean was dead when they arrived.

DISCUSSION
The question is whether the trial court erred by refusing to instruct the jury to find whether appellant caused the death under the immediate influence of sudden passion arising from adequate cause. When evidence from any source raises a defensive issue, and the defendant properly requests a jury charge on that issue, the trial court must submit the issue to the jury. Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993); see Perez v. State, 940 S.W.2d 820, 822 (Tex. App.--Waco 1997, no pet. h.) ( failure to instruct on sudden passion at punishment warranted reversal). Any evidence, however weak, will support submitting the issue to the jury. See Burns v. State, 923 S.W.2d 233 (Tex. App.--Houston [14th Dist.] 1996, pet. ref'd). However, appellant is not entitled to have a charge given unless there is some evidence on the issue. Luck v. State, 588 S.W.2d 371 (Tex. Cr. App.), cert. denied, 446 U.S. 944 (l979).

The Penal Code defines "sudden passion" as passion directly caused by and arising out of provocation by the individual killed or another acting with him which passion arises at the time of the offense and is not solely the result of former provocation. "Adequate cause" means 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. Tex. Penal Code Ann. § 19.02(b)(1), (2) (West 1994). These definitions under the current code are identical to those set forth in the former voluntary manslaughter statute. Thus, we can rely on prior decisions for guidance on these terms. Perez, 940 S.W.2d at 821-823. See Roberts v. State, 590 S.W.2d 498, 501 (Tex. Crim. App. 1979).

Appellant relies on cases which have held that heated arguments can justify submission of an instruction on sudden passion. Humphries v. State, 615 S.W.2d 737, 738 (Tex. Crim. App. 1981) (stabbing in course of heated argument); Schoelman v. State, 644 S.W.2d 727, 733 (Tex. Crim. App. 1983) (deceased and defendant argued over a ring); Lucky v. State, 495 S.W.2d 919, 922 (Tex. Crim. App. 1973) (insulting conduct led to argument and shooting); Parks v. State, 473 S.W.2d 32 (Tex. Crim. App. 1971) (argument over dollar debt led to stabbing). These cases support the point that the threshold to raise the issue is not high, but there is no evidence in the present case that there was any argument at all. Appellant points to no evidence that the deceased or another acting with him did anything at all to provoke appellant to "sudden passion" at the time of the offense. See Marquez v. State, 725 S.W.2d 217, 223-24 (Tex. Crim. App. 1987) (no instruction required if no evidence that victim did anything to provoke sudden passion in defendant); Rice v. State, 893 S.W.2d 734, 735 (Tex. App.--Texarkana 1995, pet. ref'd) (no instruction required without some evidence of provocation by deceased, or another working with deceased to provoke defendant). A defendant may not provoke a confrontation and then claim sudden passion. Villegas v. State, 791 S.W.2d 226, 239 (Tex. App.--Corpus Christi 1990, pet. ref'd). The evidence in the present case shows that appellant brought his anger with him, sought out Dean for the expressed purpose of beating him up and made provocative remarks to him before he began beating him and that Dean never even hit back. Under these circumstances, appellant cannot claim that his anger at the time of the encounter is proper evidence of sudden passion. See Nance v. State, 807 S.W.2d 855, 861 (Tex. App.--Corpus Christi 1991, pet. ref'd). It is not enough that appellant acted mad or upset; the evidence must also show that the anger was the result of an act of provocation on the part of the deceased or a third party acting in concert with him. Nobles v. State, 843 S.W.2d 503, 511 (Tex. Crim. App. 1992).

For a claim of fear or anger to rise to the level of sudden passion, there must be evidence that the defendant's state of mind rendered him incapable of cool reflection. Daniels v. State 645 S.W.2d 459 (Tex. Crim. App. 1983). The evidence here shows appellant acted purposefully to achieve his stated intention of beating Dean. Such conduct does not come within the definition of sudden passion. See Gaston v. State, 930 S.W.2d 222, 226 (Tex. App.--Austin l996, no pet.) (arguing with wife and then driving over to shoot her at church an hour later is not sudden passion).

Appellant does not refer us to any evidence that his passion arose from an adequate cause. He indicates that his anger was the result of the deceased dating his former girlfriend and responding "Yeah, whatever" to appellant's declaration of his intent to beat the deceased. Adequate cause is that which "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." Without legally adequate cause, no amount of subjective passion will justify submission of this issue. Provost v. State, 514 S.W.2d 269 (Tex. Crim. App. 1974). The murderous acts of one not of ordinary temper or whose response to the alleged cause is not objectively common in the ordinary, reasonable person does not support a charge on this issue. Willis v. State, 936 S.W.2d 302, 308 (Tex. App.--Tyler l996, pet. ref'd). In Willis, the court held that the conduct of the deceased in breaking out the defendant's car windows, and the defendant's resulting excited state, did not provide sufficient evidence of the extreme emotional and psychological state defining "sudden passion." Another court has said that the instruction is not available to one whose actual emotional responses are aberrational in this society. Lopez v. State, 716 S.W.2d 127, 129 (Tex. App.--El Paso 1986, pet. ref'd). See Corral v. State, 900 S.W.2d 914, 919 (Tex. App.--El Paso 1995, no pet.) (throwing rocks at defendant and making gang signs are not adequate provocation to justify a killing).

CONCLUSION
We have thoroughly reviewed the record. We find no evidence that appellant's emotions rose to the level of "sudden passion" as defined in the Penal Code. Even if they did, there is no evidence that his emotions resulted from provocation by the deceased or another acting with deceased at the time of the offense. There is no evidence of any immediate provocation as opposed to some possible former provocation. There is no evidence of any conduct by the deceased that could constitute "adequate cause" within the statutory definition. There was no insult or threat or aggression by deceased. The trial court did not err in refusing the requested charge.

The judgment of the trial court is affirmed.

Mack Kidd, Justice

Before Chief Justice Carroll, Justices Jones and Kidd

Affirmed

Filed: December 11, 1997

Do Not Publish

nt case that there was any argument at all. Appellant points to no evidence that the deceased or another acting with him did anything at all to provoke appellant to "sudden passion" at the time of the offense. See Marquez v. State, 725 S.W.2d 217, 223-24 (Tex. Crim. App. 1987) (no instruction required if no evidence that victim did anything to provoke sudden passion in defendant); Rice v. State, 893 S.W.2d 734, 735 (Tex. App.--Texarkana 1995, pet. ref'd) (no instruction required without some evidence of provocation by deceased, or another working with deceased to provoke defendant). A defendant may not provoke a confrontation and then claim sudden passion. Villegas v. State, 791 S.W.2d 226, 239 (Tex. App.--Corpus Christi 1990, pet. ref'd). The evidence in the present case shows that appellant brought his anger with him, sought out Dean for the expressed purpose of beating him up and made provocative remarks to him before he began beating him and that Dean never even hit back. Under these circumstances, appellant cannot claim that his anger at the time of the encounter is proper evidence of sudden passion. See Nance v. State, 807 S.W.2d 855, 861 (Tex. App.--Corpus Christi 1991, pet. ref'd). It is not enough that appellant acted mad or upset; the evidence must also show that the anger was the result of an act of provocation on the part of the deceased or a third party acting in concert with him. Nobles v. State, 843 S.W.2d 503, 511 (Tex. Crim. App. 1992).

For a claim of fear or anger to rise to the level of sudden passion, there must be evidence that the defendant's state of mind rendered him incapable of cool reflection. Daniels v. State 645 S.W.2d 459 (Tex. Crim. App. 1983). The evidence here shows appellant acted purposefully to achieve his stated intention of beating Dean