Phillip Doyle Crenshaw v. State ( 1991 )

Crenshaw v. State

NO. 10-90-065-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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          PHILLIP DOYLE CRENSHAW,

                                                                                            Appellant

          v.

          THE STATE OF TEXAS,

                                                                                            Appellee

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From 40th Judicial District Court

Ellis County, Texas

Trial Court # 17,146

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O P I N I O N

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          A jury convicted Appellant of murder and assessed his punishment at forty years in prison. See Tex. Penal Code Ann. § 19.02 (Vernon 1989). Appellant complains that the court erred when it (1) commented about the appropriate range of punishment for different offenses, (2) failed to submit a defensive instruction, and (3) denied a motion for a new trial based on newly discovered evidence. He also argues that the prosecutor failed to disclose exculpatory evidence material to the case. The judgment will be affirmed.

          Before voir dire examination commenced, the court instructed the venire as follows:

For instance, if you had an eighty-six-year-old man who had been married to his wife for sixty years and she is in terrible shape with terminal cancer and she's in great agony. And you hear about those cases where [the] husband decides to do something about that.

Some people term that as a mercy killing. Well, there is no such thing as a mercy killing, at least not in Texas. And that would be, in that certain situation, that would be a murder case.

And some people might consider it a case that might be -- would be worthy of probation and some might not.

But there are also other facts and circumstances. Sometimes there are cases -- and this is an outlandish example, but it's not unbelievable.

Suppose a man or somebody robbed your house while you were away and rapes your wife and kills your children, burns the house down around them. And he finds out who did it and he tracks them down. It takes him two weeks and he tracks him down and kills him.

Some people might think that might be excusable. It's not the law. That is what is known as taking the law in your own hands. That would be murder.

Appellant's first point is that these comments invaded the province of the jury and commented on what type of punishment is appropriate in certain cases.

          Article 38.05 of the Code of Criminal Procedure provides in part that a judge shall not "make any remark calculated to convey to the jury his opinion of the case." Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979). however, to constitute reversible error, a comment must be such that it is reasonably calculated to benefit the state or prejudice the defendant. Davis v. State, 651 S.W.2d 787, 789 (Tex. Crim. App. 1983). The following portion of the judge's instructions clearly demonstrates that the instructions were not reasonably calculated to benefit the State or prejudice Appellant:

Now, I don't mean to give you any specific example and say this is a type of case that might be entitled to the minimum punishment. This might be the type of case that might be entitled to the maximum punishment.

There are -- you don't have to sit there, and I can't sit here, and conjure up all the possibilities that might be involved in a murder case that you might consider the maximum punishment or the minimum punishment.

But what you -- and it's not what you would do in this particular case. We cant' -- I, the judge, nor the attorneys, are not going to be allowed to commit you as to what you would do in this particular case, what type of punishment you would give to this kind of case if you found [Appellant] guilty. We are not going to be allowed to do that.

What we have to ask you and what the attorneys will be asking you is whether or not you can consider the entire range of punishment set by the Legislature of the [S]tate of Texas for a murder case, that is, not less than five years, and it could be probated, all the way up to life in the Texas Department of Corrections and a $10,000 fine.

And then assess the appropriate punishment that is authorized by law and justified by the evidence, after you have heard the facts and circumstances in the case and do what's appropriate within the range, and you haven't already got your mind made up that I am not going to do this and I'm not going to do that before I've heard anything.

Furthermore, Appellant waived any complaint when he failed to timely object to the court's instructions. See Tex. R. App. P. 52(a). Point one is overruled.

          Although Appellant did not object to the charge or request an instruction on duress at trial, point four is that the court fundamentally erred when it failed to submit an instruction on duress to the jury. A defendant is entitled upon timely request to an affirmative instruction on every defensive issue raised by the evidence. Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984). Because Appellant failed to timely request an instruction on duress, he was not entitled to have the issue submitted to the jury. See id.; Tex. R. App. P. 52(a).

          Assuming that Appellant preserved this complaint, the facts did not raise the issue of duress. Section 8.05 of the Penal Code provides that duress is an affirmative defense to prosecution when the defendant "engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another." Tex. Penal Code Ann. § 8.05(a) (Vernon 1974).

          Appellant was charged with murder, i.e., intentionally or knowingly causing the death of an individual or intending to cause serious bodily injury and committing an act clearly dangerous to human life which resulted in death. See Tex. Penal Code Ann. §19.02 (a)(1), (2) (Vernon 1989). There was some evidence at trial that Appellant helped dispose of the body because he feared that he or a member of his family would be harmed if he did not. Nothing in the record, however, indicates that Appellant committed the murder, i.e., the proscribed conduct, while under threat of imminent death or serious bodily injury to himself or another. Therefore, the defense of duress was not raised by the evidence and the court did not err when it failed to affirmatively submit an instruction on duress to the jury. Point four is overruled.

          Appellant complains in points two and three that he should have been granted a new trial because the prosecutor withheld exculpatory evidence. He asserts that Dan and Evelyn Jackson, who were under a "gag order," were prevented from disclosing statements favorable to his defense of duress. Specifically, he says that the Jacksons could have purportedly testified to statements by Richard Epps, a co-defendant, which allegedly corroborated Appellant's claim that he acted under threat of serious bodily injury to himself or another.

          To be entitled to a new trial based on newly discovered evidence, a defendant must show that: (1) the evidence was unknown at the time of trial; (2) the failure to discover the evidence was not the result of a lack of diligence; (3) the newly discovered evidence is admissible and not merely cumulative, collateral, corroborating or impeding; and (4) the new evidence, which is probably true, may result in a different verdict. Eddlemon v. State, 591 S.W.2d 847, 849 (Tex. Crim. App. [Panel Op.] 1979). Furthermore, the denial of a motion for a new trial will not be disturbed unless there was an abuse of discretion. Id.

          As decided above, the evidence did not raise the defense of duress. Thus, the newly discovered evidence was essentially irrelevant and not favorable to Appellant. Even assuming that Appellant could meet the first three prongs of the Eddlemon test, he is unable to show that the new evidence would have affected the outcome of his trial. Therefore, the court did not abuse its discretion when it denied Appellant's motion for a new trial. Points two and three are overruled and the judgment is affirmed.

                                                                                 BOB L. THOMAS

                                                                                 Chief Justice

Before Chief Justice Thomas,

          Justice Cummings and

          Justice Vance

Affirmed

Opinion delivered and filed July 11, 1991

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