Jay James Richardson v. State

IN THE

TENTH COURT OF APPEALS

No. 10-03-00362-CR

Jay James Richardson,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 2003-367-C

MEMORANDUM Opinion

          Jay James Richardson was convicted of murder. The jury sentenced him to 75 years in prison.  Because the trial court did not violate his right to the confrontation of a witness and the jury’s negative finding to the sudden passion issue was not factually insufficient, we affirm the trial court’s judgment.

          In his first issue, Richardson contends the trial court violated his right to confront a witness.  Specifically, Richardson argues that the court’s failure to allow the cross-examination of Detective Steve January concerning Richardson’s self defense claim violated his right to confrontation.

          The trial court sustained the State’s objection to Richardson’s attempt to have January testify as to what was in James Bishop’s affidavit.  Bishop was with Richardson when Richardson shot the victim, Rudy Herrera.  Later, Richardson made a bill of exception based on this attempt. 

          The State contends the argument at the bill of exception does not comport with the ground Richardson raised on appeal.  To preserve a complaint on appeal, the issue on appeal must comport with the complaint made at trial.  Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).  On appeal, Richardson argues that his reasons for wanting to question January on Bishop’s statement was to show that January had a motive to slant his testimony against Richardson because January disregarded defensive evidence.  At the bill of exception, however, Richardson argued, among various other reasons not argued on appeal, that the denial of the admission of Bishop’s statement violated the right of confrontation “as it put a witness in a witness seat that we can’t confront, and that’s James Bishop.”  Richardson did not argue that it was to show a motive of Detective January to slant his testimony.

          The complaint on appeal does not comport with the complaint raised at trial.  Thus, Richardson’s first issue is overruled.

          In his second issue, Richardson argues the evidence was factually insufficient to support the punishment verdict because the evidence showed Richardson was acting under the influence of sudden passion.  The jury was instructed on sudden passion and found that Richardson did not act with sudden passion.

          A defendant has the burden to prove a sudden passion issue at punishment by a preponderance of the evidence.  Tex. Penal Code Ann. § 19.02(d) (Vernon 2003).  Because Richardson is challenging the jury’s rejection of a sudden passion issue, this Court must then determine whether the jury’s negative answer is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust.  Hernandez v. State, 127 S.W.3d 206, 212 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d); Bumguardner v. State, 963 S.W.2d 171, 176 (Tex. App.—Waco 1998, pet. ref’d).  Sudden passion must arise at the time of the offense and cannot result solely from former provocation.  Hernandez, 127 S.W.3d at 213. And provocation by people other than the victim, or acting with the victim, is not sudden passion.  Id.

          Richardson points to the following evidence as establishing sudden passion:  1) Herrera made harassing gestures, such as throwing his hands up and pointing his finger like a gun, at Richardson and stared at Richardson while in a bar; 2) outside the bar, Richardson saw Bishop’s motorcycle on the ground and saw Herrera and those in his group pointing and “hollering” at him; 3) Richardson armed himself with handgun from his saddle bag; 4) despite warnings, the crowd advanced toward him; 5) during the advance, Richardson saw “a shirt flip up and a guy went for a gun;” and 6) Richardson was forced to defend himself by shooting Herrera because he was terrified and thought he would lose his life.

          However, there was testimony that no one in Herrera’s group had a gun, Herrera did not own a gun, and no one made threatening gestures to Richardson. Herrera’s sons testified that Richardson had been staring at them while inside the bar.  As Herrera and his family left the bar, Herrera accidentally knocked down a motorcycle parked outside the bar.  Someone yelled, “Punk mother fucker.”  Before they could turn around to see who was yelling, a shot was fired which hit Herrera in the arm and spun him around.  Herrera’s sons saw Richardson continue to fire his gun, striking Herrera seven times.  Two of the seven wounds were to the back of Herrera’s arm and one to Herrera’s back.  Afterward, Richardson threatened Herrera’s family by pointing the gun at them and asking, “You want some?”.  Richardson and Bishop then left the scene on their motorcycles while one of Herrera’s sons chased after them, throwing rocks.

          Reviewing all the evidence, the jury’s negative answer to the sudden passion issue is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust.  Richardson’s second issue is overruled.

          Having overruled each issue, the trial court’s judgment is affirmed.

                                                                   TOM GRAY

                                                                   Chief Justice

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

Affirmed

Opinion delivered and filed February 9, 2005

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