Byron Keith Harmon v. William Reed ( 1991 )

Harmon v. Reed

NO. 10-91-060-CV

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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          BYRON KEITH HARMON,

                                                                                            Appellant

          v.

          WILLIAM REED,

                                                                                            Appellee

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From 52nd Judicial District Court

Coryell County, Texas

Trial Court # 25,690

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MEMORANDUM OPINION

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          Byron Keith Harmon appealed from an order of dismissal signed March 14, 1991. The transcript does not contain a motion for a new trial; thus, the record was due in this court on May 13. See Tex. R. App. 54(a). The transcript was filed on April 8, making Appellant's brief due May 8. See id. at 74(k). To date, no brief has been filed on Appellant's behalf.

          The appeal is dismissed for want of prosecution. See id. at 74(l)(1).

                                                                                 PER CURIAM

Before Chief Justice Thomas,

          Justice Cummings and

          Justice Vance

Dismissed

Opinion delivered and filed July 11, 1991

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The elements which must be included in an indictment for criminal attempt are: (1) a person, (2) with specific intent to commit an offense, (3) does an act amounting to more than mere preparation, (4) which act tends but fails to effect the commission of the offense intended. Id. at § 15.01(a) (Vernon Supp. 1991); Ex parte Bartmess, 739 S.W.2d 51, 53 (Tex. Crim. App. 1987). An indictment for criminal attempt is not fundamentally defective if it fails to allege the elements of the offense attempted. Jones v. State, 576 S.W.2d 393, 395 (Tex. Crim. App. [Panel Op.] 1979).

          An indictment which charges a defendant with the "attempt to cause the death of a police officer with the specific intent to commit the offense of murder sufficiently alleges the offense of attempted capital murder." Ex parte Pousson, 599 S.W.2d 820, 822 (Tex. Crim. App. 1980). Likewise, an indictment which alleges that the defendant intended to commit capital murder and attempted to cause the death of peace officers sufficiently charges attempted capital murder. Gelabert v. State, 712 S.W.2d 813, 817 (Tex. App.--Houston [1st Dist.] 1986, pet. ref'd). Clearly, Appellant's indictment contained all the allegations required for criminal attempt: (1) Appellant, (2) with specific intent to commit capital murder, (3) did an act which amounted to more than mere preparation, i.e., shot at the officers, (4) which tended but failed to effect the commission of the offense. See Bartmess, 739 S.W.2d at 53. Point one is overruled.

          Appellant's second point is that the evidence was insufficient to prove that she aided or attempted to aid David Mangrum in attempting to commit capital murder. When reviewing a complaint of insufficient evidence, the question is whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989).

          Because there was no evidence that Appellant actually shot at the officers, the only way she could be found guilty of attempted capital murder was under the law of parties. Participation as a party may be inferred from the circumstances and need not be shown by direct evidence. Freeman v. State, 654 S.W.2d 450, 454 (Tex. Crim. App. 1983). Furthermore, an actual verbal agreement to participate in the offense is not necessary as long as the evidence shows "an implicit agreement to commit the offense formulated contemporaneous with the offense." Curtis v. State, 573 S.W.2d 219, 222 (Tex. Crim. App. 1978).

          Officer Wilkerson, who was shot by Mangrum, testified that he saw Appellant on the bed beside Mangrum. Officer Radney claimed that, when he entered the bedroom, he saw the back of Appellant's head and the barrel of a "long gun" in her hands. He considered both Appellant and Mangrum to be "equal threats." When he saw Appellant starting to turn towards the officers, Radney shot her to prevent her from shooting at them. Appellant, he said, appeared to be attempting to join Mangrum in shooting at the officers.

          Officer Bennett also saw Appellant in a crouched position with her back to the door of the bedroom, holding a rifle or shotgun. He claimed that, after the barrage of gunfire, Appellant was lying face down on top of the gun, which had to be "jerk[ed]" away from her. When Officer Herbert observed Appellant turning towards the officers, he knew he could not "let her turn around with that gun, [or] she would get us all." Herbert, who believed that Appellant was trying to shoot at the officers, speculated that had she not been shot Appellant "probably would have got at least two" officers. After Appellant fell on the gun, Herbert noticed some resistance as Officer Baier "pulled [the gun] out" from underneath her. Baier claimed that, after trying to remove the gun gently so as not to further injure Appellant, he "had to jerk [the gun] hard the second time to actually pull it from underneath" her.

          Based on this testimony and the record as a whole, any rational trier of fact could have determined that Appellant, who possessed a firearm, who turned towards the officers with it in her hands, thereby distracting the officers away from Mangrum, aided or attempted to aid David Mangrum in attempting to commit capital murder. Accordingly, point two is overruled.

          Appellant asked the court to instruct the jury on the law of self-defense. Point three is that the court erred when it denied her request. A defendant is entitled to the affirmative submission of every defensive issue raised by the evidence. Sanders v. State, 707 S.W.2d 78, 80 (Tex. Crim. App. 1986). However, before an instruction on self-defense is required, there must be some evidence that the defendant was in some apprehension or fear of the unlawful use of force by the complainant. Smith v. State, 676 S.W.2d 584, 585 (Tex. Crim. App. 1984).

          Here, the officers were executing a valid search warrant and used force only after being provoked by Appellant and Mangrum. Thus, the officers' use of deadly force was lawful, and the evidence did not raise the issue of self-defense. See Zwack v. State, 757 S.W.2d 66, 69-71 (Tex. App.--Houston [14th Dist.] 1988, pet. ref'd); Preston v. State, 756 S.W.2d 22, 24-25 (Tex. App.--Houston [14th Dist.] 1988, pet. ref'd). Point three is overruled.

          Appellant complains in point four that the court erred when it allowed Officer Radney to testify, over her objection, that she was attempting to aid Mangrum. Her objection at trial was that the testimony "invad[ed] the province of the jury, and [was] also a conclusion that [Radney was] not qualified to make." This point is overruled for two reasons. First, testimony is not objectionable merely "because it embraces an ultimate issue to be decided by the trier of fact." See Tex. R. Crim. Evid. 704. Second, similar testimony was admitted without timely objection, which resulted in the waiver of this complaint. See Cain v. State, 549 S.W.2d 707, 716-17 (Tex. Crim. App. 1977).

          Point five is that Officer Herbert's speculation about what would have happened if Appellant had not been shot was improper. Officer Bennett testified, without objection, that being shot with Appellant's gun would have been deadly and that if she had "turn[ed] around with the gun, she would [have shot] us all." Because this similar testimony was admitted without objection, Appellant has waived her complaint. See id. Point five is overruled.

          After Appellant and Mangrum were shot, officers searched Mangrum's house under a search warrant. Among the items seized in the search were various narcotics, including phenylacetone, methamphetamine, amphetamine, marihuana, marihuana seeds, and syringes and spoons commonly used with drugs. Appellant argues in point six that the court erred when it admitted the narcotics and paraphernalia into evidence over her objections.

          Whether to admit evidence is a question for the trial judge, and his decision will not be disturbed on appeal except for an abuse of discretion. Crank v. State, 761 S.W.2d 328, 342 (Tex. Crim. App. 1988). Although a defendant should not be punished for a collateral crime or for being a criminal generally, the facts and circumstances surrounding the commission of the offense can be considered by the jury. Lomas v. State, 707 S.W.2d 566, 568 (Tex. Crim. App. 1986). Events do not occur in a vacuum and, even though prejudicial, evidence explaining the context of an offense is usually admissible. Mann v. State, 718 S.W.2d 741, 744 (Tex. Crim. App. 1986). If the evidence concerns a continuous transaction or another offense which is part of the case on trial, or closely interwoven with it, the evidence is admissible to show the context of the offense. Taylor v. State, 420 S.W.2d 601, 605 (Tex. Crim. App. 1967).

          Here, officers went to Mangrum's house to execute a valid search warrant. When they arrived, they announced that they were police officers acting under a search warrant and entered the house. Officer Wilkerson, the first officer to enter the house, was shot as he reached the doorway of a bedroom. A barrage of gunfire followed, which resulted in Mangrum being killed and Appellant being injured. Once the gunfire ceased and the house was "secure," officers searched the house under the warrant. During the search, they discovered the narcotics and paraphernalia which were introduced into evidence at Appellant's trial. The drugs were located in plain view in close proximity to where Appellant had been throughout the exchange of gunfire.

          Not only did the drugs and paraphernalia show the context in which the offense occurred, their presence in close proximity to Appellant tends to explain her motive for attempting to shoot at the officers. Based on this evidence and the record as a whole, we cannot say that the court abused its discretion when it admitted the items into evidence. Point six is 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 June 20, 1991

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