Phillip Doyle Chaney v. State ( 2010 )

NO. 07-08-0476-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

MAY 27, 2010

PHILLIP DOYLE CHANEY,  

                                                                                         Appellant

v.

THE STATE OF TEXAS, 

                                                                                         Appellee

_____________________________

FROM THE 50TH DISTRICT COURT OF COTTLE COUNTY;

NO. 2834; HONORABLE WILLIAM H. HEATLY, PRESIDING

Dissenting Opinion

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

            I respectfully dissent from the conclusion that the evidence of guilt was legally sufficient.   My conclusion is founded upon the test we have historically utilized in addressing such issues.  The test mandates that we defer to the jury’s decision unless it is irrational or not supported by some evidence.  Ortegon v. State, 267 S.W.3d 537, 546 (Tex. App.–Amarillo 2008, pet. ref’d).  That test is not a mandate of our own creation but rather that of our Court of Criminal Appeals espoused years ago, e.g., Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988) (requiring intermediate appellate courts to deem legitimate a jury’s verdict unless it was irrational or lacked evidentiary support), and, as such, must be followed. 

            So stated, the standard of review by which we must abide likens to the words oft used in describing the standard of review utilized in assessing whether a decision evinced an abuse of discretion.  According to the latter, the decision must comport with the law and have evidentiary basis, Rachal v. State, 917 S.W.2d 799, 808 (Tex. Crim. App. 1996), or fall within the zone of reasonable disagreement.  Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007).  Both gauge the actor’s (the factfinder’s or judge’s) conduct against the rules of law and the circumstances (or evidence) before him.  And, given that, both have two components, that is, the rationality or reasonableness of the decision and the presence of evidence to support it. 

            It is the first component that I now discuss in conjunction with the appeal before me.  At the very least, to be rational a decision must be one made by a body opting to comport its determination to the law.  Again, harkening back to the idea of abused discretion, a ruling that deviates from the law or misconstrues the law is not a legitimate exercise of discretion.  Rachal, 917 S.W.2d at 808.  Likewise, a verdict founded upon inaccurate legal theorems cannot comport with the law and thereby be rational.  And, therein lays the seed of my discontent.

            The only “evidence” purporting to illustrate that the appellant intentionally or knowingly intended the death of the victim came from Texas Ranger Jay Foster. As indicated in the majority opinion, he all but conceded that he actually found nothing indicating that appellant intentionally killed anyone.  Nonetheless, that did not stop him from arriving at the conclusion he desired by interjecting evidence regarding appellant’s employment and hypothesizing therefrom. As a prison guard, according to the ranger, appellant should be held to a higher standard of conduct due to his familiarity with firearms.  And, the ranger continued, holding him to that higher standard required one to conclude that appellant knowingly caused the death of Lukas Taylor as he tried to take the gun away from him.  There are two fatal flaws in considering such comments and inferences therefrom as probative evidence when assessing the legal sufficiency of the evidence, however. 

First, if those suppositions were to comport with the law, they would be nothing other than conclusions of law; that is, statements of what the law is.  Ford v. State, 108 Tex. Crim. 626, 2 S.W.2d 265, 266 (1927) (defining a conclusion of law).  And, as we know, statements tantamount to conclusions of law are not probative evidence under our jurisprudence.  Urschel v. Garcia, 164 S.W.2d 804, 806 (Tex. Civ. App.–San Antonio 1942, writ ref’d w.o.m.) (stating that a conclusion of law is not any evidence supporting a verdict); Watson v. Tamez, 136 S.W.2d 645, 646 (Tex. Civ. App.–San Antonio 1940, no writ) (stating that a conclusion of law has no probative force and cannot be considered evidence even if no objection is made to it).  Second, the ranger’s opinion is not even a correct statement of the law.  The State cites us to no authority holding that because one may be employed as a prison guard or peace officer, he is bound by a higher standard of conduct when handling firearms.  Nor did I find any such authority.  And, while it may be arguable that one’s familiarity with such weapons may mean that he or she has a greater awareness of the harm they can inflict, that does not logically entitle one to conclude that any particular outcome linked to the handling of such weapons by those people was intended.   I remind the reader that to be guilty of intentionally causing the death of another, the actor must have had the conscious objective or desire to cause the result, i.e. the death of the victim.  Tex. Penal Code Ann. §6.03(a) (Vernon 2003). Being aware of the potential for harm does not equate to proof that appellant had the conscious objective or desire to kill.

Nor does the evidence of record illustrate a knowing murder for purposes of the Texas Penal Code.  For the death to fall within that category, the actor must be aware that his conduct is reasonably certain to cause death.  Id. §6.03(b).  While appellant may have known, due to his training, that struggling with another for a gun could result in someone’s death, that is not evidence that his conduct would, with reasonable certainty, cause death.  Indeed, if knowing that one’s handling or mishandling of a firearm could result in a death were enough to satisfy the mens rea for murder, then every experienced hunter holding a rifle or handgun would have the requisite mens rea for the crime.   This is so because he or she undoubtedly knows that manipulating such a weapon could cause death should it discharge for whatever reason, and that is not a posture in which I care to put the millions of hunters in this state or anyone else that may care to exercise rights allowed under the Second Amendment to the United States Constitution.  Rather, the evidence here had to illustrate that appellant was reasonably certain that his attempt to retrieve the handgun would result in death, and a Texas Ranger’s opinion founded on a mistaken legal premise is not such evidence.

That the ranger purportedly discredited appellant’s version of how or why the handgun discharged fails to fill the mens rea void as well.   To believe otherwise would be to equate a negative (i.e. discrediting a defendant’s version of what happened) to a positive (i.e. proof that the contrary occurred or that appellant pulled the trigger).  To my limited understanding of math, science and logic, that is not possible. Furthermore, it may well be that appellant had his finger on the trigger when the gun fired but the record leaves me to guess at whether he, at that time, desired the death of his friend or even was reasonably certain that death would result.  Whether the trigger was pulled via appellant’s own muscle contractions which manipulated his finger’s movement or by the victim somehow pulling the weapon or striking appellant’s finger is also left to conjecture.      

As for the testimony coming from those who simply concluded that appellant “caused” the victim’s death or “caused” the shooting, neither statement addresses the concept of mens rea; rather it simply involves nexus or causation at best.  Such comments are nothing more than saying that appellant erected the dominoes.  One cannot logically deduce from the act of erecting them that he either knocked them over, intended that they be knocked over, or was reasonably certain that they would be knocked over. 

            Thus, what we have here is a situation wherein the jury must have adopted misstatements of the law, accepted legal conclusions as evidence, or made logically insupportable inferences to ultimately arrive at the finding that appellant committed murder.  Because a jury does not act reasonably when doing so, its finding is irrational.

            As for the second prong of the standard of review, I too believe that it has application here.  Again, the only way that the jury could have found appellant guilty of intentional murder is by accepting as evidence the ranger’s utterance regarding the application of higher standards of conduct to appellant.  Yet, since those comments are nothing short of conclusions of law (and legally inaccurate conclusions at that), they had no probative evidentiary force. This, in turn, means that they are not evidence upon which the verdict could be based. 

            In sum, I would sustain appellant’s legal sufficiency point, reverse the judgment and render judgment acquitting appellant of murder.

                                                                                    Brian Quinn

                                                                                    Chief Justice

Publish.

ass=MsoNormal style='text-align:justify;text-indent:.5in;line-height:200%'>Appellant Dustin Sexton appeals from his conviction for domestic violence assault and the resulting sentence of 365 days in the Lubbock County Jail, suspended in favor of community supervision for a period of twenty-four months. Through one issue, appellant contends the trial court erred in admitting testimony concerning statements made by the victim.  We disagree and affirm the judgment of the trial court.

Background

            Appellant was charged by information with intentionally, knowingly or recklessly causing bodily injury to a female victim, his girlfriend.[1]  Appellant plead not guilty and the case was tried to a jury.

            Appellant does not challenge the sufficiency of the evidence to support his conviction, so we will recite only those facts necessary to disposition of his appellate issue.  Appellant’s girlfriend called 911, reporting a domestic disturbance. When a Lubbock police officer responded to her 911 call, the victim answered the door.  She had what the officer believed to be streaked blood on her cheek and dried blood around her mouth.  The victim told the officer she and appellant had fought.  Appellant, she said, pulled her hair, punched her, and threw her on the floor. 

            Some time after these events, the victim completed and signed an affidavit of non-prosecution provided her by appellant’s counsel.  During the week before appellant’s case was to go to trial, the victim met with a prosecutor.  She testified she told the prosecutor during that meeting that what she told the officer the night of the alleged assault was not true.  The State offered her immunity.    

            At trial, the State’s case included the victim’s 911 call, which was played to the jury over appellant’s objection.  In the call, the victim implicated appellant as the cause of her injuries.  

            The State also called the victim to testify.  She first asserted her Fifth Amendment rights, but then testified under the State‘s court-approved grant of use immunity.  On the stand, she recanted her accusations that appellant caused her injury. She acknowledged telling the officer appellant did so, but testified that was not true.  Her testimony was that she and appellant argued, and appellant tried to leave the apartment.  She injured her mouth when appellant was walking out the door and she “grabbed onto his arm and he was pulling outside of the door, and I was trying to pull him back in.  My hand let loose, and I hit myself in the mouth.” 

            The officer also testified, recounting the victim’s statements to him after her 911 call. Appellant objected to the State’s questioning of the victim and officer about her statements implicating him as the cause of her injuries.

            The jury found appellant guilty and assessed punishment against him as noted. This appeal followed.

Analysis

            When reviewing a trial court's decision to admit or exclude evidence, we apply an abuse-of-discretion standard. Ramos v. State, 245 S.W.3d 410, 417-18 (Tex.Crim.App. 2008). The trial court does not abuse its discretion unless its ruling lies "outside the zone of reasonable disagreement." Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007).

Appellant contends the trial court abused its discretion by admitting the 911 call, the victim’s testimony concerning her statements to the police officer and the officer’s testimony concerning her statements, because the evidence should have been excluded under the analysis discussed in Hughes v. State, 4 S.W.3d 1 (Tex.Crim.App. 1999).[2]  The court there held that despite the evidentiary rule permitting parties to impeach their own witnesses, a trial court may abuse its discretion under Rule of Evidence 403 if it allows the State to introduce impeachment evidence for the primary purpose of placing before the jury evidence that otherwise was inadmissible.  Id. at 5.  In such instances, the prejudicial effect of the ostensible impeachment evidence will substantially outweigh its probative value because it is useful to the State only if the jury misuses it by considering it for its truth.  Id.   

            Appellant points out the State called her as its witness despite her execution of the affidavit of non-prosecution and her statement to the prosecutor the week before trial recanting her accusations against appellant, and argues the State’s grant of immunity and statements to the jury panel demonstrate it knew she would testify contrary to its case.  Appellant further argues the State put her on the stand for the purpose of laying the predicate for her prior inconsistent statements to impeach her.  The State responds with several reasons it contends appellant’s argument lacks merit. After review of the record, we conclude we need address only one of the State’s contentions.  We agree with the State the challenged evidence was admitted for purposes other than impeachment, and find that appellant has not contended on appeal that such admission was improper.  Accordingly, the Hughes rule has no application here at all. 

In response to appellant’s hearsay objections to the 911 call recording, the State’s questioning of the victim about her statements to the officer, and the State’s questioning of the officer about the victim’s statements, the State argued that all were admissible as excited utterances.[3]  The court overruled appellant’s objections, and the evidence was admitted without limiting instructions.[4]  On appeal, appellant does not challenge the applicability of the excited utterance exception to the hearsay rule.  The court heard testimony from which it reasonably could have concluded the victim’s statements, both in the 911 call and during her conversation with the officer, related to a startling event and were made while she was under the stress of excitement caused by the event.  Tex. R. Evid. 803(2); see Dixon v. State, 244 S.W.3d 472, 485-86 (Tex.App.—Houston [14^th Dist.] 2007, pet. ref’d) (911 call as excited utterance); Salazar v. State, 38 S.W.3d 141, 154 (Tex.Crim.App. 2001) (statement attributing injury to defendant as excited utterance). 

The Rule 403 analysis described in Hughes applies to otherwise inadmissible evidence admitted under the guise of impeachment.  Hughes, 4 S.W.3d at 5.  The trial court’s unchallenged apparent conclusion the evidence in question here was not “otherwise inadmissible” takes appellant’s complaint outside the scope of Hughes. 

Appellant’s issue is overruled, and the trial court’s judgment is affirmed.

                                                                                                James T. Campbell

                                                                                                            Justice

Do not publish.

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[1]   See Tex. Penal Code Ann. § 22.01(a)(1) (Vernon 2009); Tex. Fam. Code Ann. § 71.004 (Vernon 2001).

[2] Appellant relied also on Barley v. State, 906 S.W.2d 27, 37 (Tex.Crim.App. 1995) and Pruitt v. State, 770 S.W.2d 909, 911 (Tex.App.—Fort Worth 1989, pet. ref’d).

[3] The State argued also that the victim’s statements to the officer were admissible under Rule of Evidence 803(3) as statements of her state of mind.

[4] Appellant sought a limiting instruction at trial but it was denied and its denial is not asserted as error on appeal.