Moore v. State , 1985 Tex. Crim. App. LEXIS 1425 ( 1985 )

OPINION

CAMPBELL, Judge.

This is an appeal from a conviction for murder. See V.T.C.A. Penal Code, Sec. 19.02(a)(1). Appellant has filed three briefs alleging four grounds of error. He challenges the sufficiency of the proof of venue, sufficiency of the evidence generally, the court’s charge on voluntary manslaughter, and the effectiveness of counsel at trial and initially on appeal. Having found no merit in any of appellant’s claims, we affirm.

The record reflects that appellant and three eyewitnesses testified to the actual shooting. Appellant, the deceased and the three eyewitnesses had all been drinking beer all evening, and apparently the deceased and his sister (an eyewitness) had been drinking most of the day. On March 6, 1979 the appellant met the deceased at a local cafe known as Pepper’s. Appellant had known the deceased most of his life and had never had any prior problems with him. Appellant testified that early in the evening of March 6, 1979 the deceased asked to borrow a dollar from appellant. Appellant and the deceased went out back behind the cafe/bar to discuss the loan. Appellant testified he explained to the deceased that he would loan him a dollar but all he had were twenty dollar bills; as appellant was returning his bills to his pocket, the deceased grabbed a twenty. For the next two hours appellant and the deceased intermittently “went out back” of the bar to discuss the pilfering of appellant’s money. While words were exchanged they do not appear to have been heated words, nor was there any physical altercation.

After a third confrontation, appellant left the bar and went to his home and got a shotgun. After deceased reneged on his promise to return appellant’s money, appellant got in his car and drove out to a highway to lay in wait for deceased. Deceased had obtained transportation home from one Walter Jones, along with the deceased’s sister and one Mary Baldwin. It is undisputed that appellant flashed his lights at Walter Jones’ vehicle, causing him to pull over to the side of the road. Walter Jones exited from his vehicle and met appellant in front of Jones’ truck. Appellant explained that he wanted his money. Jones checked with the deceased who denied that he owed appellant any money. All three passengers testified that the deceased denied the pilfering of appellant’s money. Jones offered to pay appellant ten dollars that evening and the rest the following day after work. Appellant refused the offer. Jones returned to his vehicle at which time appellant was on the passenger side of the truck pointing his shotgun at deceased. Jones yelled at appellant not to shoot in his truck. Appellant claims he saw the deceased make a downward movement as if to get a weapon. All three passengers testified that the deceased made no movement. Appellant shot deceased in the face at point blank range. The deceased died shortly thereafter.

There was no testimony that any words were exchanged between appellant and the deceased at the time of the shooting. Appellant testified that he knew the deceased had recently been paroled from prison, that the deceased had been to prison twice, that the deceased was known to carry a weapon and was generally a bully. Appellant testified that he was in fear when he shot deceased. Other testimony generally supported appellant’s characterization of the deceased.

In his first ground of error appellant challenges the sufficiency of the evidence to support proof of venue. Venue need only be proven by a preponderance of the evidence. Black v. State, 645 S.W.2d 789 (Tex.Cr.App.1983). Two of three eyewitnesses testified that the offense occurred in Liberty County. We find the testimony of two eyewitnesses to be more than sufficient. This ground of error is overruled.

In his second ground of error appellant challenges the sufficiency of the evidence to support his conviction. As shown ante, appellant admitted shooting the deceased. He claimed self-defense. The jury was properly charged on self-defense. When this Court reviews the sufficiency of the evidence, we do so by viewing the evidence in the light most favorable to the jury’s verdict. The appellant admitted killing the deceased, ergo the only issue for the jury to decide was self-defense.

The three eyewitnesses testified that the deceased did nothing to precipitate the shooting. The issue of self-defense was a fact issue and was decided against appellant. See Farris v. State, 640 S.W.2d 284 (Tex.Cr.App.1982) (rev’d. on other grounds), wherein we found the evidence to be sufficient. Ground of error number two is overruled.

By way of two supplemental briefs filed by different counsel, retained subsequent to the filing of the initial brief, appellant challenges the effectiveness of counsel at trial and on appeal and challenges the court’s charge on voluntary manslaughter. We will address the jury charge issue first.

Appellant argues that the trial court committed fundamental error in failing to charge¹ on the negation of sudden passion within the charge on murder. Appellant relies upon Cobarrubio v. State, 675 S.W.2d 749 (Tex.Cr.App.1984).

In Cobarrubio, supra, this Court found that if voluntary manslaughter was raised by the evidence [emphasis added], then the trial court must instruct the jury, in the charge on murder, that in order to convict the defendant of murder, the jury must find beyond a reasonable doubt, the absence of sudden passion.

This Court in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), substantially altered the law governing jury charge error. No longer will certain errors require automatic reversal. Instead, each case must be reviewed individually to determine whether the error alleged was so egregiously harmful that appellant has been deprived of a fair and impartial trial. In making this determination we review “the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the arguments of counsel and any other relevant information revealed by the record of the trial as a whole”. Almanza, supra at 171; Bonfanti v. State, 686 S.W.2d 149 (Tex.Cr.App.1985).

Appellant’s testimony and the evidence at trial, at most, raised the issue of self-defense. Testimony raising the issue of self-defense does not necessarily raise the issue of voluntary manslaughter. Luck v. State, 588 S.W.2d 371 (Tex.Cr.App.1979). Appellant testified that he was in fear of the deceased. However, fear alone does not raise voluntary manslaughter, as it does not necessarily demonstrate “sudden passion arising from an adequate cause.” Daniels v. State, 645 S.W.2d 459 (Tex.Cr.App.1983). Prior provocation or anger is not alone sufficient to raise the issue of voluntary manslaughter. Hobson v. State, 644 S.W.2d 473 (Tex.Cr.App.1983).

The query that is presented in the case sub judice, then, is whether the trial court “fundamentally erred” in giving a charge on voluntary manslaughter, infirm under Cobarrubio, supra, considering there was no evidence to support such a charge. We answer this query by looking at: (1) the evidence, (2) argument of counsel and (3) the jury charge.

The theory presented by appellant, testifying in his own behalf, was one of self defense and defense of his tangible personal property. This theory is borne out in the following testimony on direct examination by appellant:

“Q. Now, I’d like to direct your attention once again, Ronnie, to the moment that you pulled the trigger, the moment that you shot Davis. Did you feel at that time even though you had a weapon in your hand — Did you feel at that time that Davis could reach and get his weapon and shoot you?

“A. Yes, I did. I felt it was possible because I mean, the guy’s truck that he was in I know — He’s known to carry a pistol and I know Buddy was known to carry a pistol so I didn’t know what to expect.” S/F pg. 179

When we look at the argument of counsel to the jury, there is absolutely no mention of voluntary manslaughter. Appellant’s counsel argued that the deceased was a dangerous man, who had been to the penitentiary, was known to carry a pistol and who was feared by appellant. He argued that “the law gives Ronald Moore the right to recover his property.” Appellant’s theory is further supported in the court’s charge wherein the jury was instructed in accordance with V.T.C.A. Penal Code, Secs. 9.31, 9.32, 9.41 and 9.42.

In view of the “entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the arguments of counsel ... and the record of the trial as a whole,” the error was not “so egregious” and did not create such harm so as to deny appellant a “fair and impartial trial.” See Almanza, supra. The ground of error is overruled.

In his final ground of error appellant claims he was denied the effective assistance of counsel. Appellant was represented by attorney Frank Hughes throughout trial and on appeal through his first brief. Dissatisfied with the representation he was receiving, appellant retained attorney Brian Wice to represent him for the appeal. Mr. Wice filed both supplemental briefs herein.

Appellant claims his original counsel was ineffective in failing to file any pre-trial motions; in failing to voice proper objections to two jurors during voir dire; in failing to obtain jury instructions on lesser included offenses; in failing to call witnesses; in failing to call additional witnesses at the punishment hearing; in failing to file a motion for new trial; and in failing to file an adequate appellate brief.

Right to counsel has been interpreted to mean the right to reasonably effective assistance of counsel. Ex Parte Duffy, 607 S.W.2d 507 (Tex.Cr.App.1980). This does not guarantee the accused error-less representation, but instead affords him an attorney “reasonably likely to render and rendering” reasonably effective assistance of counsel. MacKenna v. Ellis, 280 F.2d 592 (5th Cir.1960), cert den. 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961); Ex Parte Gallegos, 511 S.W.2d 510 (Tex.Cr.App.1974). The burden of proving ineffective counsel falls on the appellant. United States v. Killian, 639 F.2d 206 (5th Cir.1981), cert. den., 451 U.S. 1021, 101 S.Ct. 3014, 69 L.Ed.2d 394; Marino v. United States, 600 F.2d 462 (5th Cir.1979). Such a contention must be proven by a preponderance of the evidence. Marino, supra.

In determining whether there was ineffective assistance of counsel, the trial as a whole must be looked at — not isolated incidents of counsel’s performance. Ewing v. State, 549 S.W.2d 392 (Tex.Cr.App.1977).

As previously shown, appellant admitted shooting the deceased at point blank range in a dispute over money. There were three eyewitnesses to the offense, all of whom testified that the deceased made no threatening gestures or statements. While we cannot say that trial counsel’s handling of this case was ideal or even without some error, we do not believe that, “absent the errors, the fact finder would have had a reasonable doubt respecting guilt.” See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Having found no reversible error, the judgment of the trial court is affirmed.

1 . No objection was lodged to this portion of the court’s charge.