Danny Lee Haney v. State ( 1997 )

Haney-Danny Lee v. State

  IN THE

TENTH COURT OF APPEALS

No. 10-97-005-CR

     DANNY LEE HANEY,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

 

From the 54th District Court

McLennan County, Texas

Trial Court # 96-365-C

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O P I N I O N

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      Danny Lee Haney appeals his conviction for murder. See Tex. Pen. Code Ann. § 19.02 (Vernon 1994). The jury found Haney guilty of murder and sentenced him to life imprisonment in the Institutional Division of the Texas Department of Criminal Justice. See Tex. Pen. Code Ann. § 12.32 (Vernon 1994). The jurors also fined Haney $10,000 as part of his punishment. Id. Haney brings two points of error alleging that the trial court erred in: (1) overruling his objection to the phrasing of the accomplice witness instruction in the trial court’s charge and (2) allowing the State to go into the details of a prior conviction for assault during the punishment phase of the trial.

I. Factual Background

      On March 3, 1996, four men were gathered inside an apartment when Danny Lee Haney knocked on the window. Immediately after being let inside Haney began challenging the men by asking if they “had a problem with him,” apparently seeking to provoke a fight. Then Haney turned his attention specifically toward Garry Brinegar. After Haney asked whether Brinegar knew him, and Brinegar responded that he did not know who Haney was, Haney began punching Brinegar in the face. This led to an initial struggle where Brinegar got Haney into a head-lock on the floor and refused to let go until Haney calmed down, which Haney did not do. Instead Haney ordered one of the other men in the room to kick Brinegar in the head, allowing Haney to get free.       Soon after this initial fight ended, Haney and Brinegar began a series of confrontations which became more violent as their fighting continued. Generally a fight would begin as Haney verbally or physically attacked Brinegar, and then during the struggle Haney would order the other men to hit or kick Brinegar to assist him in the conflict. As the fighting escalated, Haney rammed Brinegar with the apartment’s coffee table, then threw the table to the ground and broke off one of its legs. Using this table leg as a club Haney began repeatedly striking Brinegar on the head. Although Brinegar tried to retreat into the other rooms of the apartment to escape, Haney blocked any escape and continued hitting Brinegar’s head with the table leg. After the beating had ceased and after Haney had washed his hands in the bathroom, Haney administered one or two final kicks to Brinegar’s head as he left the apartment. On his way out Haney informed the other men in the apartment that they should tell the police several African-American men broke into the apartment and beat up Brinegar. Brinegar was taken to the hospital after Haney left, but Brinegar’s skull had been fractured as a result of the beating and he died from his injuries.

II. Points of Error

      In his first point of error, Haney contends that the trial court erred in overruling his objection to the phrasing of the accomplice witness instruction in the trial court’s charge. Article 38.14 of the Code of Criminal Procedure requires that the testimony of an accomplice be corroborated by other evidence connecting the defendant with the charged offense before the accomplice’s testimony may be used as the basis for a conviction. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). In determining if a witness is an accomplice, courts look at the witness’ participation “before, during or after the commission of [the] crime” and if the witness can be “prosecuted for the offense with which the accused is charged.” Gamez v. State, 737 S.W.2d 315, 322 (Tex. Crim. App. 1987). When the evidence shows that the witness is an accomplice as a matter of law, the trial court should instruct the jury of this finding. Solis v. State, 792 S.W.2d 95, 97 (Tex. Crim. App. 1990); Gamez, 737 S.W.2d at 322; Mize v. State, 915 S.W.2d 891, 895 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d). If however there is a fact question about whether or not the witness is an accomplice, the trial court should instruct the jurors to resolve this factual issue, and if they find the witness to be an accomplice then there must be corroborating evidence connecting the defendant to the crime in order to convict. See Albritton v. State, 662 S.W.2d 377, 379-80 (Tex. App.—Beaumont 1983, pet. ref’d); see also Gamez, 737 S.W.2d at 322; Kunkle v. State, 771 S.W.2d 435, 439 (Tex. Crim. App. 1986); Ashford v. State, 833 S.W.2d 660, 664 (Tex. App.—Houston [1st Dist.] 1992, no pet.).

      Haney contends that the phrasing of the accomplice witness instruction given by the trial court improperly places the burden of proof on the defendant to show whether or not the witness was an accomplice. In the instant case the trial court’s charge contained instructions that the jury should determine whether or not witnesses Lloyd Fulfer, Aaron McMahan, and Adislado Marsh were accomplices of the defendant in committing murder. These three witnesses had been in the apartment during the beating, and there was testimony that these individuals had hit or kicked the victim at Haney’s request. The portion of the charge instructing the jury on the application of the accomplice witness rule to Fulfer reads:

Now, if you believe from the evidence beyond a reasonable doubt that an offense was committed and you further believe from the evidence that the witness Lloyd Fulfer was an accomplice, or you have a reasonable doubt whether he was or not, as that term is defined in the foregoing instructions, then you cannot convict the defendant upon the testimony of the said Lloyd Fulfer unless . . . [subsequent text explains the accomplice witness rule]. (Emphasis added).

 

Haney objects specifically to the use of the phrase “or not” in the instruction, claiming that this indicates to the jury that the defendant has the burden of proof on whether the witness was proved to be an accomplice of the defendant. This objection was made to each of the three identical paragraphs in the charge applying the accomplice witness rule to Fulfer, McMahan, and Marsh respectively.

      In criminal cases the State must prove all elements of the offense beyond a reasonable doubt before a defendant may be convicted. Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon Supp. 1997). The use of instructions on conclusive or rebuttable presumptions which lessen the State’s burden of proof impermissibly shift that burden onto the defendant in violation of due process. See Francis v. Franklin, 471 U.S. 307, 317, 105 S. Ct. 1965, 1972-73 (1985); Sandstrom v. Montana, 442 U.S. 510, 523-24, 99 S. Ct. 2450, 2459 (1979); Goswick v. State, 656 S.W.2d 68, 69-70 (Tex. Crim. App. 1983). Because Haney seeks a reversal of his conviction based upon the alleged burden-shifting effect of this accomplice witness instruction, we examine this charge to determine (1) whether the trial court’s charge contained error and (2) if “sufficient harm resulted from the error to require reversal.” Porter v. State, 921 S.W.2d 553, 557 (Tex. App.—Waco 1996, no pet.).

      Haney has cited no cases discussing his proposition that the “or not” language shifts the burden of proof onto the defendant, and we have found none. Thus, we must examine the text of the instruction to determine the effect of this language. The trial court’s instruction informs the jury that if the jurors believe the witness was an accomplice of Haney then there must be evidence corroborating the witness’ testimony. The instruction also tells the jurors that, if after looking at the evidence they have a reasonable doubt regarding whether or not the witness acted as Haney’s accomplice, then corroboration is necessary. The effect of this instruction does not shift the burden of proof onto the defendant, but in fact it places the burden on the State to prove that the witness was not an accomplice. If the State failed to prove beyond a reasonable doubt that the witness was not an accomplice of Haney, then the instruction given by the trial court properly requires jurors to convict only if the witness’ testimony has been corroborated by other evidence linking Haney with the crime. See Boozer v. State, 717 S.W.2d 608, 611 (Tex. Crim. App. 1984) (when the State fails to object to the court’s giving an accomplice witness instruction it bears the burden of proof on this issue). Haney’s first point is overruled because we conclude the accomplice witness instruction given by the trial court did not improperly shift the burden of proof onto the defendant.

      In his second point of error, Haney claims that the trial court erred in allowing the State to present testimony describing the factual details surrounding one of Haney’s prior convictions for assault when he had already stipulated that the conviction had occurred. During the punishment phase of the trial Haney stipulated to his prior criminal record consisting of five prior convictions for: unauthorized use of a motor vehicle, theft, unlawfully carrying a weapon, and two convictions for assault. The judgment for each of these offenses was introduced into evidence. Then the State called Matthew Hammond to testify that one of Haney’s assault convictions resulted from an attack in which Haney began hitting Hammond without provocation and included hitting him over the head with a hot iron. Haney objected to this evidence asserting that it was “reversible error to go into the details of any prior conviction that has been admitted in the . . . punishment phase,” but this objection was overruled.

      On appeal Haney contends that information about a defendant’s prior criminal record should be limited to introducing evidence of a final conviction without any factual details about the prior offense. Haney believes that details about past acts may only be introduced when the State seeks to prove an unadjudicated crime or bad act.

      Cases interpreting prior versions of section 3(a) of article 37.07 of the Code of Criminal Procedure hold that details about a prior criminal act, which resulted in a final conviction, are inadmissible in the punishment phase of a later trial. See Smith v. State, 930 S.W.2d 227, 229-30 (Tex. App.—Beaumont 1996, pet. ref’d); see also Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon Supp. 1997); Johnson v. State, 650 S.W.2d 784, 792 (Tex. Crim. App. 1983); Walker v. State, 610 S.W.2d 481, 483 (Tex. Crim. App. 1980). However, after the Court of Criminal Appeals’ decision in Grunsfeld v. State, the legislature amended section 3(a).

      The legislature provided in section 3(a) that either the State or the defendant may offer evidence of “any matter the court deems relevant to sentencing.” Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a). The statute does not limit what evidence a trial judge might consider relevant, but specifies that relevant evidence at sentencing includes, inter alia, the defendant’s prior criminal record and evidence of an extraneous crime or bad act proven beyond a reasonable doubt. Id. While it could be argued that the details about a past conviction are part of the defendant’s “prior criminal record” because the legislature deleted the definition of this term when it amended 37.07, we believe the better approach is to treat the details surrounding a prior conviction as an extraneous crime or bad act which must be proved to the jury beyond a reasonable doubt.

      By its own terms section 3(a) of article 37.07 is not limited to extraneous crimes or acts which are unadjudicated. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a). The text says that evidence about the defendant’s bad acts is admissible “regardless of whether he has previously been charged with or finally convicted of the crime or bad act.” Id. Thus, the fact that the defendant was actually convicted of the extraneous crime does not prevent the prosecution from proving beyond a reasonable doubt what that prior offense involved factually. The Court of Criminal Appeals has defined an extraneous offense as “any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers.” Rankin v. State, No. 1019-94, 1996 WL 6757 (Tex. Crim. App. January 10, 1996) (emphasis omitted). Similarly, we believe that 37.07's use of the term “extraneous crime” is not limited to unadjudicated crimes, but includes both adjudicated and unadjudicated crimes which the defendant can be proved to have committed beyond a reasonable doubt.

      By allowing the State to present evidence about extraneous crimes or bad acts jurors learn “as much useful information as possible in deciding the appropriate punishment for the individual defendant.” Mendiola v. State, 924 S.W.2d 157, 163 (Tex. App.—Corpus Christi 1995, no pet.) (quoting Bowser v. State, 816 S.W.2d 518, 521 (Tex. App.—Corpus Christi 1991, no pet.). For example, in Cox v. State, the Fort Worth Court of Appeals held that evidence presented during the punishment phase of an aggravated robbery trial, which showed that the defendant had once followed a woman home in the middle of the night, gone to her door, and turned her front door knob, was admissible as a “bad act” committed by the defendant. 931 S.W.2d 349, 356-57 (Tex. App.—Fort Worth 1996, pet. granted). We are unable to discern a reason why jurors, such as those in Cox, can consider the facts surrounding a bad act, which was not a criminal offense, to determine a proper sentence, but jurors cannot consider an event which led to a criminal conviction. See Standerford v. State, 928 S.W.2d 688, 693 (Tex. App.—Fort Worth 1996, no pet.) (holding that the trial court did not err in allowing the State to present evidence about the defendant’s prior DWI convictions). Once the trial judge has made a threshold determination that evidence regarding an extraneous crime is relevant, then the jury may consider it in deciding punishment if the State proves the occurrence beyond a reasonable doubt. See Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996).

      Consequently, Haney’s second point is overruled because we conclude that the State may present evidence about the details surrounding a defendant’s extraneous prior criminal conviction. Furthermore, the trial court’s charge on punishment properly instructed the jurors that before they could consider other offenses in determining Haney’s punishment they must have found beyond a reasonable doubt that Haney had committed those offenses.

      The judgment is affirmed.

 

                                                                               BOBBY L. CUMMINGS

                                                                               Justice

 

Before Chief Justice Davis,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed September 10, 1997

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e='font-family:"CG Times"'>he did not know that the Bunert Road Crossing is a low-water crossing designed for water to flow over during heavy rains.

 

  Based on the quoted portion of Finding of Fact No. 4, the court apparently chose to disbelieve Stewart’s testimony on the issue of actual knowledge.  In addition, the court expressly stated that it did not find Rawlins’s testimony “persuasive or credible” insofar as it was inconsistent with the court’s findings and conclusions.  Thus, the court failed to “take as true all evidence favorable to the [plaintiffs]” and “indulge every reasonable inference and resolve any doubts in the [plaintiffs’] favor.”  See Miranda, 133 S.W.3d at 228.  By failing to do so, the court erred because it applied an erroneous evidentiary standard in evaluating the evidence before it.  Id. at 226-28.

          By evaluating the witnesses’ credibility, the court likewise erred.  See Durham, 860 S.W.2d at 66; Casso, 776 S.W.2d at 558; Alaniz, 105 S.W.3d at 347; Wilcox, 103 S.W.3d at 475; Tri-State Chemicals, 83 S.W.3d at 198; Thompson, 57 S.W.3d at 556; see also Miranda, 133 S.W.3d at 226-28.

          The court’s errors as identified in the discussion regarding Stewart’s and Whitfield’s second and third issues will not require reversal unless the errors probably caused the rendition of an improper judgment.  See Tex. R. App. P. 44.1(a)(1). Because we will conclude that the evidence raises a fact question on the issue of whether the City or Stewart had actual knowledge at the relevant time, these errors did cause the rendition of an improper judgment.  Accordingly, we sustain Stewart’s and Whitfield’s second, third, and fourth issues.

The City’s Knowledge[4]

          Stewart and Whitfield contend in their sixth issue that the court erred by granting the City’s plea to the jurisdiction because a fact question remains regarding whether the City had actual knowledge of the dangerous condition.[5]

          Actual knowledge may be established by circumstantial evidence.  See City of San Antonio v. Rodriguez, 931 S.W.2d 535, 537 (Tex. 1996) (per curiam); Palais Royal, Inc. v. Gunnels, 976 S.W.2d 837, 844 (Tex. App.—Houston [1st Dist.] 1998, pet. dism’d by agr.); Simons v. City of Austin, 921 S.W.3d 524, 528 n.2 (Tex. App.—Austin 1996, writ denied); see also Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001) (“actual awareness” element of gross negligence claim may be proved by circumstantial evidence); LaRue v. Chief Oil & Gas, L.L.C., 167 S.W.3d 866, 879 (Tex. App.—Fort Worth 2005, no pet.) (same).

          Here, public works director Lynch testified that the City did not have notice that the Bunert Road crossing was flooded until Stewart called 9-1-1.  However, Lynch also testified that the crossing had “sometimes” flooded in the past during heavy rains, that this crossing was designed so that the water would flow over it during heavy rains, and that the City had closed the low-water crossing several times before because of flooding.

          The National Weather Service had issued at least four pertinent notices on the afternoon and night preceding the accident. Rawlins, who was a former member of the City Council, testified that the City knew prior to the accident that the crossing “tended to flood during heavy rains.” The court also admitted in evidence Rawlins’s affidavit, in which she stated that Corsicana “public officials were on notice prior to May 1, 2004 of the dangerous conditions the Bunert Road low-water crossing over Post Oak Creek posed during light and heavy rains.”

          In post-hearing briefing, Stewart and Whitfield also provided the court with a copy of a 2001 Flood Protection Planning Study prepared for the City of Corsicana.  Among other things, this study states, “The City of Corsicana has a history of flood problems and damages within the Post Oak Creek drainage basin.”  The study highlights the Bunert Road crossing as one of the problem areas.

          TxDOT had closed a portion of the business route for Interstate 45, which is upstream from the Bunert Road crossing, because of flooding on the night of the accident.  At least one of the police officers who responded to Stewart’s call had just assisted another officer in apprehending a murder suspect.  Thus, it could be inferred that these officers were patrolling the streets of Corsicana that night and knew of the heavy rainfall.

          When we “indulge every reasonable inference and resolve any doubts in [Stewart’s and Whitfield’s] favor,” we must conclude that a fact question remains regarding whether the City had actual knowledge of the dangerous condition.  See Rodriguez, 931 S.W.2d at 537 (rejecting no-evidence complaint because “[d]epending on the position of the leaks above the floor and the amount of rain, the jury might have inferred that the person in charge knew that there would be water on the floor”); Palais Royal, 976 S.W.2d at 844 (“Palais Royal actually knew that the ladder was shortened and that visibility at the top of the ladder was obscured by the ‘drop’ ceiling which Palais Royal insisted on lowering.  These facts, albeit circumstantial, constitute some evidence that Palais Royal knew the ladder was dangerous.”); Simons, 921 S.W.2d at 528 & n.2 (testimony of two experts who testified that partition was dangerous and city “must have known” of the danger constitutes circumstantial evidence of city’s actual knowledge).

          Accordingly, we sustain Stewart’s and Whitfield’s sixth issue.

Stewart’s Knowledge

          Stewart and Whitfield contend in their fifth issue that the trial court erroneously applied a constructive knowledge standard in assessing Stewart’s knowledge of the dangerous condition.

          The court found that Stewart “regularly drove over the Bunert Road Crossing”; that “[h]e was aware that the Bunert Road Crossing was in a low area and subject to flooding; and that he “knew that the Bunert Road Crossing could flood under the existing weather conditions.” (emphasis added)  However, these findings directly contradict Stewart’s testimony.

          The court’s finding does appear to resemble a finding of constructive rather than actual knowledge.  Cf. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102 (Tex. 2000) (premises owner may be liable to invitee for dangerous condition if owner “should have known that a condition on its premises created an unreasonable risk of harm”) (emphasis added).  More importantly however, and as addressed in connection with several of Stewart’s and Whitfield’s other issues, the court applied the wrong evidentiary standard to Stewart’s testimony.

          When we “indulge every reasonable inference and resolve any doubts in [Stewart’s and Whitfield’s] favor,” we must conclude that a fact question remains regarding whether Stewart had actual knowledge of the dangerous condition.  See Palais Royal, 976 S.W.2d at 844.  Thus, we sustain Stewart’s and Whitfield’s fifth issue.

Plea to the Jurisdiction

          Stewart and Whitfield contend in their first issue that the court erred by granting the City’s plea to the jurisdiction because fact questions remain on the issues of the City’s and Stewart’s knowledge.  They contend in their fourth issue that the court erroneously ruled on the merits of their claims in deciding the plea to the jurisdiction.

          As previously observed, when a plea to the jurisdiction “implicates the merits of the plaintiffs’ cause of action and the plea to the jurisdiction includes evidence, the trial court reviews the relevant evidence to determine if a fact issue exists.”  Miranda, 133 S.W.3d at 227.  The court may adjudicate the merits of the claim at this stage only “if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue.”  Id. at 228.

          Because fact questions remain on the issues of the City’s and Stewart’s knowledge, the court erred by deciding the merits of their claims and granting the plea to the jurisdiction.  See Miranda, 133 S.W.3d at 227-28.  Accordingly, we sustain Stewart’s and Whitfield’s first and fourth issues.

We reverse the order granting the City’s plea to the jurisdiction and remand this cause to the trial court for further proceedings consistent with this opinion.

 

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissenting with note)*

Reversed and remanded

Opinion delivered and filed December 6, 2006

[CV06]

 

*        (Dissenting note: “Chief Justice Gray notes that there are many statements in the majority opinion with which he does not agree, statements that ultimately lead the majority to an erroneous judgment.  He therefore dissents from both the opinion and the judgment.  But a separate opinion will not be issued.”)

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[1]           Based on the time of Stewart’s call to 9-1-1, the accident which serves as the basis for the suit occurred around 1:30 a.m.

 

[2]           The court issued findings of fact and conclusions of law contemporaneously with its order granting the City’s plea to the jurisdiction, on February 3, 2006.  Stewart and Whitfield filed their notice of appeal on February 15.  The City filed a Request for Findings of Fact and Conclusions of Law on February 23.  The court signed the City’s proposed Findings of Fact and Conclusions of Law on March 8.

[3]           Because of a 2005 amendment, a governmental unit owes a person using a toll road the duty owed a licensee, even though the person paid for the use of the road.  See Tex. Civ. Prac. & Rem. Code Ann. § 101.022(c) (Vernon Supp. 2006).  For other persons who pay for the use of government-owned premises, a governmental unit owes the duty owed an invitee.  Thompson v. City of Corsicana Housing Auth., 57 S.W.3d 547, 552 (Tex. App.—Waco 2001, no pet.).

[4]           Stewart and Whitfield do not challenge the court’s conclusion that the condition was not a special defect. The court’s conclusion in this regard is supported by numerous authorities.  See, e.g., State Dep’t of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993) (per curiam); Tex. Dep’t of Transp. v. Fontenot, 151 S.W.3d 753, 761-62 (Tex. App.—Beaumont 2004, pet. denied); Corbin v. City of Keller, 1 S.W.3d 743, 747-48 (Tex. App.—Fort Worth 1999, pet. denied); but cf. Tex. Dep’t of Transp. v. Abilez, 962 S.W.2d 246, 251 (Tex. App.—Waco 1998, pet. denied) (TxDOT conceded that flooded highway constituted special defect).

 

[5]           The dangerous condition at issue is the flooded road, not the low-water crossing itself.  See Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002) (per curiam) (quoting State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999) (per curiam)) (“the ‘[d]esign of any public work, such as a roadway, is a discretionary function involving many policy decisions, and the governmental entity responsible may not be sued for such decisions’”); see also Tex. Civ. Prac. & Rem. Code Ann. § 101.056(2) (Vernon 2005).