Moye, Jerry Don v. Texas, the State Of ( 1997 )

Affirmed and Opinion Filed April 16, 1997
In The
(Htfuri 0f Appeals
Txiilf Btsirtri sf (E*;x:as ai lallas
No. 05-94-00841-CR
JERRY DON MOYE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 194th District Court
Dallas County, Texas
Trial Court Cause No. F93-04886-M
OPINION
Before Justices Morris, Wright, and Hankinson
Opinion By Justice Hankinson
Jerry Don Moye appeals his conviction for murder. In his first and second points of
error, appellant claims the trial court erroneously admitted crime scene and autopsy
photographs because the danger of unfair prejudice in admitting them substantially
outweighed their probative value. In his third point of error, appellant argues the trial court
erroneously refused to submit appellant's requested voluntary manslaughter jury instruction
as a lesser included offense of murder. We overrule appellant's points oferror and affirm
the trial court's judgment.
FACTUAL BACKGROUND
Marsha and Jerry Don Moye married in 1986. They had two children, J.D. and
Jenna. In 1990, appellant and Marsha moved to Colorado with J.D. Jenna stayed in Texas
with Marsha's mother. Appellant was arrested in Colorado for theft by receiving and
concealing and was sent to prison for three years. While appellant was incarcerated, Marsha
and J.D. moved back to Texas.
A few months after returning to Texas, Marsha met David Haggard, the victim, and
they moved in together. Although initially Marsha frequently corresponded with appellant
in prison, her letters became less regular over time. In these letters, Marsha never
mentioned Haggard.
In April 1993, appellant was released from prison and returned to Texas. During
appellant's first weekend in Texas, Marsha told him about Haggard. During this
conversation, appellant indicated that he wanted to "get back" at Haggard for being with
Marsha. Later, appellant told Haggard that if he ever harmed Marsha, J.D., or Jenna,
appellant would kill him. Appellant and Marsha remained legally married. By agreement,
Marsha kept the children during the week and appellant kept the children on the weekends.
On July 28, 1993, Marsha, Haggard, and the two children lived in a small house in
Seagoville, Texas. Haggard went to bed at approximately 10:00 p.m. that night. After
Haggard went to bed, Marsha, J.D., and three of Marsha's friends went to another friend's
home and remained there until 1:00 a.m. When Marsha arrived home, she saw appellant
walk out of her house. He had blood on his face. Marsha asked appellant what he was
doing at her house, and he answered, "Nothing, baby, nothing." Appellant then got in his
truck and drove away. When Marsha went into the bedroom, she found Haggard lying on
the waterbed, dead, with his throat cut.
Deputy Sheriff Arthur Jumper was dispatched to the crime scene to collect evidence.
He testified that he found several knife slashes on the bed near the pillows and that one of
Haggard's legs was still under the bed covers. Jumper cursorily inspected the entire house
and then took interior and exterior photos of the house, including photographs of the crime
scene. At trial, Jumper described the crime scene photographs he took. He also testified
that he did not find blood anywhere in the house other than in the bedroom. Another
officer, Greg McKinley, interviewed witnesses and gathered more information from the
crime scene. A warrant for appellant's arrest issued. Appellant fled the state and was
arrested in Florida.
Dr. Karen Ross, a medical examiner, performed Haggard's autopsy. Dr. Ross
testified that Haggard had multiple superficial wounds to his head and neck. She further
testified that Haggard had been stabbed in the right ear canal and that his left ear had been
sliced through. She also stated that Haggard suffered a"serious" neck wound comprised of
two separate knife wounds. These wounds formed aten-inch gash that occupied at least
half his neck's circumference. The wound was at least one and three-quarter inches deep
and extended down to the level of the spine on the right side, transecting the right internal
carotid artery and the right jugular vein. Dr. Robert Williams, adentist specializing in bite
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mark evidence, testified that Haggard had six human bite marks scattered across his body.
Appellant testified in his own defense. He stated that before the offense, he
suspected Haggard was abusing his children. Appellant related that J.D. said that he was
scared of Haggard and that Haggard threatened to kill him because he loved his father.
J.D. also told appellant that Haggard beat up Marsha and threatened to kill them all.
According to appellant, Marsha told him that she was scared for the children because if she
left Haggard, she believed Haggard would kill her and the children.
Appellant then offered testimony regarding the events that occurred the night
Haggard died. According to appellant, at about 7:00 p.m., he and a friend went to a bar
called Cowboys. They stayed at the bar drinking and shooting pool until approximately
10:00 p.m. or 11:00 p.m. when appellant's friend got into a fight and they were kicked out
of the bar. Appellant testified that he drank a six-pack of Miller Lite at Cowboys. While
on his way home, appellant decided that he wanted to pick up his children at Marsha's and
take them home even though he had not arranged to pick them up that night.
Appellant testified that when he arrived at Marsha's house, he knocked on the door
and Haggard answered. Even though Haggard did not invite appellant inside and instead
asked appellant to leave, appellant entered the house. According to appellant, he asked
Haggard where his children were and Haggard replied "None of your damn business." At
that point, appellant yelled and again asked where his children were. Haggard replied that
appellant would never see his children again and that appellant did not need to know where
they were. When appellant told Haggard that he was not leaving until he got his children,
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Haggard (who was five feet, eight inches tall and weighed approximately one hundred and
thirty pounds) punched appellant (who is six feet, one inch tall and weighs between 185 and
200 pounds) in the jaw. Appellant then hit Haggard and knocked him down. Haggard
immediately jumped up and ran toward the back bedroom. Appellant turned around, shut
the front door, pulled out his pocketknife and opened the blade, and ran after Haggard.
Appellant testified that he "figured" Haggard had a gun "or something" in the bedroom;
therefore, hefollowed Haggard quickly so that Haggard would not have time to get the gun,
load it, and fire it at him. Appellant testified that he never saw Haggard with a weapon
either in the front hall or when he got to the back bedroom.
When appellant got to the back bedroom, he tackled Haggard from behind and they
landed on the bed. Appellant could not see well because the bedroom was dark, lit only by
the flickering T.V. Appellant and Haggard struggled on the bed. According to appellant,
there was a lot of hitting, fighting, and scratching. Appellant was on top of Haggard, and
Haggard pushed appellant's arm away, causing appellant to cut his face with his knife.
Appellant recalls that Haggard bit his thumb as appellant had his hand in Haggard's face.
Appellant then bit Haggard's thumb. Appellant did not recall much after that, except that
he "cut" Haggard.
Appellant testified that at the time he pulled his knife on Haggard he was scared
because Marsha had told him that Haggard was out to get him. He further stated that
although he could have left when Haggard ran to the back bedroom, he did not leave
because he thought that would give Haggard the opportunity to shoot him in the back.
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ADMISSION OF PHOTOGRAPHS
In his first and second points of error, appellant contends that the trial court
erroneously admitted four crime scene photographs and ten autopsy photographs (and
duplicate slides) into evidence. Appellant concedes these photographs are relevant;
however, he argues that the danger of undue prejudice substantially outweighed their
probative value. Thus, he contends the trial court should have excluded them under Texas
Rule of Criminal Evidence 403. The State counters that: (1) the crime scene photographs
are more probative than prejudicial because they are few in number, they show Haggard's
condition and location immediately after the offense, they were the subject of trial
testimony, and they support the State's theory that appellant did not act in self-defense; and
(2) the autopsy photographs and slides were necessary to illustrate the nature and extent of
Haggard's wounds and therefore are more probative than prejudicial.
Under rule 403, relevant evidence is admissible unless "its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading to the jury, or by considerations of undue delay, or needless presentation of
cumulative evidence." Tex. R. Crim. Evid. 403; see Long v. State, 823 S.W.2d 259, 271
(Tex. Crim. App. 1991), cert, denied, 505 U.S. 1224 (1992). Rule 403 favors admitting
relevant evidence and presumes that relevant evidence will be more probative than
prejudicial. Long, 823 S.W.2d at 271; Mongtomery v. State, 810 S.W.2d 372, 389 (Tex. Crim.
App. 1991) (op. on reh'g). When the party opposing admission makes atimely objection,
the trial court must balance the probative value of the evidence against the danger of unfair
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prejudice. See Long, 823 S.W.2d at 271.
When engaging in a rule 403 balancing test, the trial court must evaluate the
probative value against the risk that the photographs will have "an undue tendency to
suggest decision on an improper basis, commonly, though not necessarily, an emotional
one." Id. at 272 (defining undue prejudice). The trial court should consider the number
of offered photographs; the gruesomeness, size, and detail of the offered photographs;
whether the photographs are black and white or in color; whether the photographs are
close-ups; whether the body is naked or clothed; and the availability of other means of proof
and circumstances unique to each individual case. Etheridge v. State, 903 S.W.2d 1, 20 (Tex.
Crim. App. 1994), cert, denied, 116 S. Ct. 314 (1995); Emery v. State, 881 S.W.2d 702, 710
(Tex. Crim. App. 1994), cert, denied, 115 S. Ct. 1257 (1995). Photographs are generally
admissible when verbal testimony regarding the photographed subject is admissible. Emery,
881 S.W.2d at 710; Phipps v. State, 904 S.W.2d 955, 958 (Tex. App.--Beaumont 1995, no
pet.). Moreover, that the scene depicted in the photograph is gory and gruesome does not
make the photographs more prejudicial than probative when the crime scene is gory and
gruesome. Shavers v. State, 881 S.W.2d 67, 76 (Tex. App.-Dallas 1994, no pet.) (citing
Long, 823 S.W.2d at 273).
The photographs' admissibility is therefore within the trial court's sound discretion.
See Jones v. State, 843 S.W.2d 487, 501 (Tex. Crim. App. 1992), cert, denied, 507 U.S. 1035
(1993). We will reverse the trial court's decision to admit the photographs only if the
decision was "outside the reasonable zone of disagreement." Narvaiz v. State, 840 S.W.2d
415, 429 (Tex. Crim. App. 1992), cert, denied, 507 U.S. 975 (1993).
Crime Scene Photographs
In his first point of error, appellant complains that the trial court erroneously
admitted the State's exhibits 33 through 36—four eight by ten color photographs of the
crime scene. On the morning of the offense, Deputy Sheriff Jumper was dispatched to the
crime scene to collect evidence. Part of his duties included taking interior and exterior
crime scene photographs. At trial, Jumper testified that State's exhibits 27 through 38
accurately depicted the crime scene as he found it the morning of the offense. He then
described the scenes depicted in objected-to exhibits 33 through 36. These exhibits show:
State's Exhibit 33; Haggard as Jumper initially found him-lying at the foot of
the bed with his head tilted back and his throat cut; the picture shows the full
length of Haggard's fully clothed body; there are splatters of blood on the wall
behind Haggard's head.
statesExhibit 34: aclose-up of the upper part of Haggard's body taken from
a different angle than exhibit 33; shows blood splatters better.
State's Exhibit 35: a close-up of Haggard's neck wound and head.
state's Exhibit 36: shows mostly blood splatters and smearings on the wall
behind Haggard's head; Haggard's head is seen at the very bottom of the
picture.
In the court below, appellant objected to these photographs, claiming that (1) they
were unduly prejudicial, (2) the state offered them solely to inflame the jury's emotions, (3)
exhibits 33, 34, and 35 are cumulative and duplicative, and (4) the State could show the
blood splatters on the wall depicted in exhibit 36 without again showing Haggard. The trial
court, after reviewing the photographs, admitted them.
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Initially, appellant argues that although the trial performed a balancing test, it did
not use the standard set out in rule 403; therefore, the trial court erred. When balancing
the crime scene photographs' probative value versus the risk of prejudice, the trial court
stated that "the Court is required to admit evidence of that which would be verbally testified
to, absent an overwhelming prejudicial aspect of the pictures." Appellant argues that this
standard equates to the test announced in Martin v. State, 475 S.W.2d 265 (Tex. Crim.
App.), cert, denied, 409 U.S. 1021 (1972), overruled on other grounds, Jackson v. State, 548
S.W.2d 685 (Tex. 1977), which requires the trial court to admit photographs unless they are
offered "solely" to inflame the minds of the jury. Martin predates the adoption of Texas
Rule of Criminal Evidence 403. Rule 403 sets out a different standard of
admissibility—these photographs are admissible only if their probative value is substantially
outweighed by the danger of unfair prejudice. Long, 823 S.W.2d at 272.
The trial court's comments in the record indicate that it did a proper rule 403
balancing test. These comments presume, as does rule 403, that relevant evidence is
admissible. See Long, 823 S.W.2d at 271; Mongtomery, 810 S.W.2d at 389. Rule 403
indicates that to rebut this presumption the party opposing the evidence must show that the
danger of unfair prejudice substantially outweighs the evidence's probative value. Here, the
trial court indicated that the presumption of admissibility would be rebutted if the evidence
had an "overwhelming prejudicial aspect." Wording inaccuracies like this do not render the
balancing test erroneous. See Long, 823 S.W.2d at 272 (balancing test considering whether
danger of unfair prejudice "greatly outweighed," instead of "substantially outweighed,"
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probative value valid under rule 403). While the trial court used slightly different language
than that supplied by rule 403, the trial court applied the conceptual framework of rule 403
to analyze the photographs' admissibility. We therefore conclude that the trial court's
prejudice analysis is sound in light of rule 403.
Moreover, based on this record, we cannot say the trial court abused its discretion
when it determined that the crime scene photos were more probative than prejudicial. As
appellant argues, these photographs are undeniably gruesome and in color, but this offense
was horribly gruesome. Gruesomeness alone, therefore, will not render the probative value
of the exhibits substantially outweighed by their prejudicial effect. Id. at 273. Without
question, these crime scene photographs occupied apivotal, and extremely probative, role
at trial.
At trial, the State offered these photographs to prove that, contrary to appellant's
story, he engaged in a premeditated attempt to kill Haggard "because appellant hated
[Haggard] and resented the fact that the [Haggard] lived with appellant's wife and children."
Through these photographs, the State also sought to rebut appellant's testimony and prove
that he never confronted Haggard in the front hall but rather secretly entered the house and
attacked Haggard when he knew no one other than Haggard was home. Because the only
other witness to the alleged confrontation—Haggard—is dead, the crime scene photographs
are the only evidence that could rebut appellant's testimony. They show Haggard's position
and location on the bed, the relationship of Haggard's body to the blood splatters on the
wall, and the violence of the attack. In at least one of the photographs, the jury could
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determine that Haggard's legs were still covered by the blankets on the bed, thus
substantiating the State's claim that Haggard was asleep when attacked. Additionally,
Jumper used these photographs when he testified about the crime scene conditions as he
found them. And Dr. Irving Stone, a prosecution expert witness, testified about his
conclusions regarding the nature of the struggle between appellant and Haggard based on
his review of these photographs.
The State's reliance on these photographs in closing argument underscores their
unique probative value. The prosecutor argued that the jury could look at exhibits 33
through 36, and especially exhibit 34, to determine if Haggard's wounds were the type that
would be inflicted in a defensive struggle. The prosecutor argued that "the real evidence
show[s] that [appellant's] whole self-defense story is a lie anyway, that it didn't happen
that way, that Haggard was asleep in his bed when he was first attacked and how do
you know that this story didn't happen, that there never was any knock on the door, that
there never was any Haggard getting up and letting him in ... you look at the photographs."
Under these particular circumstances, we cannot say the trial court abused its discretion in
admitting these crime scene photographs. See Phipps, 904 S.W.2d at 958.
Nor do we conclude that exhibits 33, 34, and 35 are cumulative and thus inadmissible,
as appellant contends. Jumper explained, and we can plainly see, each photograph is taken
from adifferent angle and depicts Haggard's position and injuries differently. In addition,
they were also the subject of trial testimony. These two factors counsel the conclusion that
the photographs are admissible. See Jones, 843 S.W.2d at 501 (photos that were few in
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number, depicted wounds inflicted and location and position of victim, and were subject of
trial testimony were admissible under rule 403).
Finally, appellant complains that the trial court should have excluded exhibit 36
because the depicted "blood splattered wall could have been shown through a photograph
taken after the body was removed." The State did not offer this photograph solely to show
the blood splattered wall. Rather, the State offered it to show the relationship between
Haggard's body and the blood splatters. Dr. Irving Stone, chief of the physical evidence
section of the Institute of Forensic Sciences in Dallas, reviewed these photographs and
testified about their importance. Based on the spatial relationship between Haggard's body
and the blood splatters, Stone concluded that the head or the body of the person who
endured the stabbing (Haggard) would be very close or below the level of the blood
splatters. The State argues that this testimony supports its theory that Haggard was in bed
when appellant killed him, rather than appellant's theory that he killed Haggard in self-
defense. According to the State, this fact makes exhibit 36 more probative than prejudicial.
Obviously, the trial court thought so, too. For all of these reasons, we cannot say that the
trial court abused its discretion when it admitted the photographs.
We overrule appellant's first point of error.
Autopsy Photographs
In his second point of error, appellant complains that the trial court erroneously
admitted State's Exhibits 41 through 50, which are slides taken during Haggard's autopsy
and photographs made from the slides. At trial, the State introduced the photographs
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through Dr. Karen Ross, the Dallas County medical examiner who performed Haggard's
autopsy. During her testimony, however, Ross used the slides projected for the jury rather
than the eight by ten color photographs that were admitted into evidence. Appellant
complains that this slide show duplicated the photographs, emphasized the gruesomeness
of Haggard's injuries, and therefore was "outrageously" prejudicial. He also complains that
the autopsy photographs were cumulative of the crime scene photographs and offered solely
to inflame the jury's emotions.
We first turn to appellant's claim that the trial court erroneously allowed the slide
show. Appellant claims the slide show was cumulative and, because the slides magnified the
photographs, unduly prejudicial. Autopsy photographs can be used to illustrate and clarify
amedical expert's description of injuries and to reveal the cause of death. Ladner v. State,
868 S.W.2d 417, 426 (Tex. App.-Tyler 1993, pet. ref'd). "[W]here pictorial evidence will
help the jury to understand verbal testimony, such as the technical language used by a
medical doctor in describing the injuries sustained by avictim of a crime, a trial judge does
not abuse his discretion in admitting these photographs." Id. (citing Harris v. State, 661
S.W.2d 106, 107 (Tex. Crim. App. 1983)). Enlarging photographs does not necessarily
make them inadmissible or unduly prejudicial, especially when the medical examiner testifies
that enlargements were necessary to depict the extent of avictims's injuries accurately. See
Etheridge, 903 S.W.2d at 21; Ladner, 868 S.W.2d at 427.
Here, Dr. Ross testified that all of the photographs admitted were necessary to
describe in detail Haggard's injuries. She further stated that slides of the autopsy were
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necessary to "fully represent" the nature of each individual wound Haggard sustained and
that neither words alone nor any other type of pictures could adequately describe or detail
these injuries. Dr. Ross then described in detail, using these slides, all of Haggard's wounds.
The record does not reflect that the jury had before it both the slides and the photographs
at the same time.. Based on this record, we cannot say that the slides from which the
photographs were made were inadmissible.
Nor can we say that the autopsy photographs themselves were unduly prejudicial,
overly gruesome, or cumulative of the crime scene photographs, as appellant contends. Dr.
Ross testified before the jury in detail as to Haggard's injuries while referring to State's
Exhibits 41 through 50. The exhibits show:
State's Exhibit 41: a picture of the top portion of Haggard's unclothed body
after it was cleaned; shows the multiple abrasions, contusions, incisions, and
bite-marks scattered over the extremities as well as the trunk.
state's Exhibit 42: apicture of the lower portion of Haggard's unclothed body
after it was cleaned, showed bite-marks on legs.
state's Exhibit 43: two superficial incisions on Haggard's forehead; shows
ruler indicating length of one of the incisions.
State's Exhibit 44: a close-up of Haggard's neck wound.
state's Exhibit 45: shows an incise wound on the right side of the face under
Haggard's ear.
state's Exhibit 46: shows a wound to Haggard's left ear.
state's Exhibit 47: shows wound on right side of victim's neck from different
angle than in exhibit 45.
state's Exhibit 48: a close-up of a stab wound; hard to tell which part of
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body.
State's Exhibit 49: a close-up of superficial incise wound on one of Haggard's
hands.
State's Exhibit 50: a shot of one of Haggard's hands with a superficial incise
wound.
Each autopsy photograph is different from the others and shows different wounds
inflicted on Haggard. The crime scene photographs did not show these individual injuries,
mainly because Haggard was clothed and the wounds could not be seen. Thus, the autopsy
pictures are not cumulative of each other or of the crime scene photographs.
Nor are the autopsy photographs unduly prejudicial or overly gruesome. Most of the
photographs simply show minor or superficial cuts and bites. Only exhibits 41 and 44 show
Haggard's neck wound after it had been cleaned and the blood removed. Exhibit 41 is an
overview picture of Haggard's entire body showing all wounds, including the neck wound.
Exhibit 44 is aclose-up of the neck wound. While these photos are undoubtedly gruesome,
they are no more gruesome than required to show the extent of the wound. Moreover,
exhibit 44 is the only photograph that illustrates the full extent of Haggard's neck wound,
including its depth, and therefore it is probative of the violent nature of the act that caused
Haggard's death. We cannot say that the trial court abused its discretion in admitting these
photographs. We overrule appellant's second point of error.
VOLUNTARY MANSLAUGHTER
In his third point of error, appellant complains that the trial court erroneously refused
to submit ajury instruction on voluntary manslaughter as alesser-included offense of
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murder. The State contends that appellant was not entitled to a voluntary manslaughter
instruction, but even if he was, the failure to submit that instruction was harmless error.
Determining whether a charge on a lesser-included offense should be submitted
requires atwo-step analysis. Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981);
Chamberlin v. State, 704 S.W.2d 801, 803 (Tex. App.-Dallas 1985, no pet.). First, the
lesser-included offense must be included within the proof necessary to establish the offense
charged. Second, some evidence must exist in the record that would permit ajury rationally
to find that if the defendant is guilty, he is guilty only of the lesser-included offense. Bignall
v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994) (en banc) (citing Rousseau v. State, 855
S.W.2d 666, 681 (Tex. Crim. App.), cert, denied, 510 U.S. 919 (1993), and Royster, 622
S.W.2d at 446)); Jones v. State, 843 S.W.2d 92, 99 (Tex. App.-Dallas 1992, pet. ref'd).
When both analytical prerequisites are satisfied, the trial court errs in refusing to submit the
lesser-included offense to the jury.
Here, the first prong of this test is satisfied. At the time appellant committed this
offense, a person committed voluntary manslaughter if he "cause[d] the death of an
individual under circumstances that would constitute murder . . . except that he caused the
death under the immediate influence of sudden passion arising from adequate cause." Act
of May 28, 1973, 63d Leg., R.S., ch. 426, art. 2, §1, 1973 Tex. Gen. Laws 1122, 1124,
amended by Act of May 29, 1993, 73d Leg., R.S., ch. 900, §1.01, 1993 Tex. Gen. Laws
3586, 3614 (current version at Tex. Penal Code Ann. §19.02 (Vernon 1994)); Merchant
v. State, 810 S.W.2d 305, 308, 309 (Tex. App.-Dallas 1991, pet. ref'd). Accordingly,
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voluntary manslaughter is included in the proof necessary to establish murder and "is a
lesser-included offense of murder." Merchant, 810 S.W.2d at 309 (citing Sattiewhite v. State,
786 S.W.2d 271, 287 (Tex. Crim. App. 1989), cert, denied, 498 U.S. 881 (1990)).
We now turn to the second prong of this test. If evidence from any source raises the
issue of a lesser-included offense, a charge on that offense must be given. Saunders v. State,
840 S.W.2d 390, 391 (Tex. Crim. App. 1992) (en banc) (citing Ojeda v. State, 712 S.W.2d
742, 744 (Tex. Crim. App. 1986)). In determining whether the evidence raises the
requested lesser-included offense, we may not consider the credibility of the evidence or
whether it conflicts with other evidence. Saunders, 840 S.W.2d at 391; Lugo v. State, 667
S.W.2d 144, 147 (Tex. Crim. App. 1984). "[R]egardless of the strength or weakness of the
evidence, if any evidence raises the issue that the defendant was guilty only of the lesser
offense, then the charge must be given." Saunders, 840 S.W.2d at 391. Keeping these
standards in mind, we must determine whether any evidence exists in the record that would
permit arational jury to find appellant guilty only of voluntary manslaughter. Anything
more than ascintilla of evidence will entitle appellant to the voluntary manslaughter charge.
See Bignall, 887 S.W.2d at 23.
To require a charge on voluntary manslaughter, the record must contain some
evidence that appellant acted "under the immediate influence of sudden passion arising from
an adequate cause." Merchant, 810 S.W.2d at 309 (quoting Cerda v. State, 557 S.W.2d 954,
958 (Tex. Crim. App. 1977)). This analysis breaks down into two components: adequate
cause and sudden passion. Merchant, 810 S.W.2d at 309 (citing Brunson v. State, 764
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S.W.2d 888, 894 (Tex. App.-Austin 1989, pet. ref'd)). First, the record must show some
evidence of legally adequate cause—cause that would produce anger, rage, resentment, or
terror in a person of ordinary temper so that the person is incapable of cool reflection.
Merchant, 810 S.W.2d at 309; Brunson, 764 S.W.2d at 894. Second, the record must show
some evidence of sudden passion—an excited and agitated state of mind at the time of the
killing caused by direct provocation by Haggard or someone acting with Haggard. Merchant,
810 S.W.2d at 309; Brunson, 764 S.W.2d at 894. Evidence of earlier provocation alone is
not sufficient. Hobson v. State, 644 S.W.2d 473, 478 (Tex. Crim. App. 1983); Merchant, 810
S.W.2d at 310. The record must also contain evidence that the accused acted in the throes
of actual, subjective passion. Merchant, 810 S.W.2d at 310; Lopez v. State, 716 S.W.2d 127,
129 (Tex. App.-El Paso 1986, pet. ref'd). But an accused does not raise the issue of
voluntary manslaughter merely by stating that at the moment of acting in self-defense he
feared the victim. In such circumstances, a bare claim of "fear" does not show sudden
passion arising from adequate cause. Merchant, 810 S.W.2d at 310.
Appellant refers us to the evidence that he claims would permit ajury rationally to
find that if he is guilty of murdering Haggard, he did so under the immediate influence of
sudden passion arising from an adequate cause: (1) he went to Marsha's home to get his
children because he was concerned for their safety; (2) he was aware of Haggard's violent
reputation; (3) when he arrived and asked where the children were, Haggard belligerently
told him "It's none of your damn business!" and then told him "You will never get them
again, you don't need to know where they're at!"; and (4) Haggard hit appellant. Appellant
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claims that "[t]his belligerent, confrontational, and assaultive behavior, combined with
appellant's extreme concern for the safety of his children, produced an anger, rage, and
resentment to which appellant responded without thinking. In the heat of the moment, he
was incapable of cool reflection." We do not agree and reject appellant's argument that this
evidence rises to the level of legally adequate cause.
Appellant's entire argument hinges on the incorrect notion that Haggard's allegedly
assaultive conduct (both verbal and physical) created legally adequate cause and justifies the
submission of the lesser-included offense. To the contrary, when "a defendant creates the
circumstances which instigate the inflaming of that defendant's passions, particularly when
a defendant is an aggressor, the precipitator of aconfrontation, or attempting to commit a
crime when allegedly inflamed by another's response, a charge on voluntary manslaughter
is not required." Nance v. State, 807 S.W.2d 855, 861 (Tex. App.-Corpus Christi 1991, pet.
ref'd) (appellant who killed ex-husband after intruding on his farm seeking to kidnap child,
demanding armed confrontation with ex-husband, and pursuing ex-husband into house after
shooting started was aggressor and voluntary manslaughter jury instruction not justified); see
Harris v. State, 784 S.W.2d 5,10 (Tex. Crim. App. 1989), cert, denied, 494 U.S. 1090 (1990);
Lincecum v. State, 736 S.W.2d 673, 679 (Tex. Crim. App. 1987), cert, denied, 486 U.S. 1061
(1988); VMegas v. State, 791 S.W.2d 226, 239 (Tex. App.-Corpus Christi 1990, pet. ref'd)).
After reviewing the record in this case, we conclude that appellant was an aggressor and
instigated the confrontation with Haggard.
The record shows that appellant arrived at Marsha and Haggard's house uninvited
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and unexpected at approximately midnight to retrieve his children. Appellant had not
arranged to pick up his children that night, but instead claimed that he was worried for their
safety based on previously-received reports of Haggard's violent tendencies and violence
toward his children. Appellant's fears, raised by these reports of Haggard's abusive and
violent tendencies, were based on earlier provocation and do not constitute legally adequate
cause. See Hobson, 644 S.W.2d at 478.
The record further shows that once appellant arrived at the house, he entered
without permission and stayed even after Haggard asked him to leave. Haggard responded
to appellant's trespass with belligerent conduct, words, and even apunch. But appellant
then struck Haggard, amuch smaller man, and knocked him to the ground. At that point,
Haggard ran away from appellant toward the back bedroom. Rather than leaving, as
appellant admitted he had the opportunity to do, appellant slammed the front door shut and
followed Haggard to the bedroom with an open knife in his hands. He then tackled
Haggard, afight ensued, and Haggard was killed. From this evidence, we conclude that
appellant instigated the alleged fight with Haggard by coming to the house late at night,
entering without permission, following Haggard to the bedroom with aknife in his hand, and
refusing to retreat after exchanging punches with Haggard. Appellant therefore precipitated
the confrontation that inflamed his emotions.
Appellant also mistakenly relies on Merchant v. State, 810 S.W.2d 305 (Tex. App.-
Dallas 1991, pet. ref'd), to argue that Haggard's assaultive conduct gave rise to adequate
cause. But Merchant can be distinguished, because in that case, the appellant did not
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instigate or precipitate a fight that inflamed his own emotions. Accordingly, although the
assaultive conduct in Merchant may have created legally adequate cause, Haggard's allegedly
assaultive conduct will not have the same effect in this case.
Moreover, even if evidence of legally adequate cause existed in the record, appellant
neither argues nor cites any record evidence indicating he acted with sudden passion. And
we do not discern any sudden passion evidence. See Gonzales v. State, 111 S.W.2d 355, 357
(Tex. Crim. App. 1986). We look for subjective evidence of appellant's state of mind that
shows he "acted in the throes of actual, subjective passion." Merchant, 810 S.W.2d at 310.
"A 'bare claim' of fear does not demonstrate sudden passion; fear that demonstrates sudden
passion must be that which commonly produces adegree of terror 'sufficient to render the
mind incapable of cool reflection'." Carillo v. State, 889 S.W.2d 501, 503 (Tex. App.~
Houston [14th Dist.] 1994, no pet.) (quoting Daniels v. State, 645 S.W.2d 459, 460 (Tex.
Crim. App. 1983)). The mere fact that at the moment of acting in self-defense, appellant
feared Haggard is not sufficient to raise sudden passion. See Merchant, 810 S.W.2d at 310.
Appellant testified he was scared of Haggard at the time he pulled out his knife and
followed Haggard to the back bedroom. He then amplified this comment by stating that he
was afraid of Haggard's propensity to violence. He also testified that when Haggard ran to
the back bedroom, appellant had "a lot of stuff going through his mind. Appellant claims
that at the time he was "under the influence for the safety of my children." Appellant
admitted at trial, however, that after he entered the house he became aware that his
children were not home. More importantly, evidence in the record shows that appellant was
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capable of, and exercised, cool reflection at the time of the incident.
Appellant testified about his mental processes when Haggard ran to the back
bedroom. He stated that he shut the front door and then followed Haggard to the back
bedroom because he thought Haggard was running to the bedroom to get a gun to shoot
him. He testified that he followed Haggard quickly because he did not want to give Haggard
a chance to retrieve the gun, load it, and fire it at him. Finally, appellant thought about
retreating but did not because he did not want to get shot in the back. This evidence does
not show the requisite mental state to raise sudden passion; rather, it shows that appellant
was consciously aware of danger and acted accordingly. This showing is not sufficient. See
Jones v. State, 687 S.W.2d 425, 428 (Tex. App.-Dallas 1985, pet. refd) (finding no
evidence of sudden passion—only aconscious awareness of danger—when defendant who
was being chased by victim, saw victim reach for kitchen drawer that contained knives,
surmised victim was reaching for aknife, and fatally stabbed victim before she could reach
for knife). We therefore conclude that the second prong of the lesser-included offense
inquiry is not satisfied and the trial court did not err when it refused to submit appellant's
-22-
requested jury instruction. We overrule appellant's third point of error.
We affirm the trial court's judgment.
J>
DEBORAH G. HANKINSON
JUSTICE
Do Not Publish
Tex. R. App. P. 90
940841F.U05
-23-
Gfourt of Appeals
iHfty iBtstrtjrt 0f Qkxas at Sallas
JUDGMENT
JERRY DON MOYE, Appellant Appeal from the mth District ^ rf
No. 05-94-00841-CR V, 22"' ^ (Tr-CtN°- ™"
THE
HE STATF
STATE OF tfvas Appellee
OF TEXAS, a „ °pinion Morris
justiceS delivered
andhVWright
Justiceparticipating.
Hankinson,
AFFIRMED °n thC C°Urt'S °Pini°n °f tWS dSte> the jUdgment 0f the trial court is
Judgment entered April 16, 1997.
DEBORAH G. HANKINSON
JUSTICE