Sabrsula, David Charles v. State

Opinion issued April 17, 2003

In The

Court of Appeals

For The

First District of Texas

---

NO. 01-02-00099-CR

---

DAVID CHARLES SABRSULA, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause No. 33,974

---

MEMORANDUM OPINION

          Appellant, David Charles Sabrsula, pleaded not guilty to murder. The jury found him guilty of murdering his wife and assessed his punishment at 99 years’ imprisonment. In five points of error, appellant challenges the admission of testimony concerning a threat he made to kill his wife and contends that he was entitled to a jury instruction on the lesser-included offense of manslaughter. We affirm.

Facts

          On a cold, rainy night in November 2000, Becky Sabrsula came home late from a business fund-raiser. She and appellant got into a heated argument. Becky jumped in her truck and drove away while the truck door was still open, apparently striking appellant in the head with the open door and running over his foot as she sped away. Appellant, barefoot and clad only in his underwear, chased Becky down the highway in his own truck. Becky called her sister-in-law, Wanda Lubojacky, telling her that appellant was trying to run her off the road and screaming, “He’s going to kill me, I know he is.” Becky continued to scream incoherently until the phone went dead.

          Wanda called 911 to summon help. Before it arrived, appellant took a high-powered deer rifle that he kept in his truck and shot his wife in the head. He then drove home and called the sheriff’s department, saying that he thought he had killed his wife. The sheriff’s deputy recovered the rifle at appellant’s home. Numerous witnesses testified that Becky was very afraid of her husband, but no evidence of physical abuse was presented. Becky also separated from appellant for a short period of time, leaving in a manner that can only be described as “sneaking out” while appellant was away from the house.

          On the day of the killing, appellant had been drinking on and off. He testified that the last thing he remembered was getting into his truck to go after his wife; he said that he remembered nothing else until he heard the window glass shatter. A forensic psychiatrist called by defense counsel testified that appellant was suffering from “disassociative amnesia” that had wiped out any memory of the traumatic event.

          After deliberating for roughly half an hour, the jury convicted appellant of murder. On appeal, he challenges the admission of a previous threat to kill his wife and argues that the jury charge should have included an instruction on the lesser-included offense of manslaughter.

Admission of Testimony

          In points of error one through four, appellant contends the trial court erred in admitting, over objection, Vicki Lewicki’s testimony that appellant threatened his wife a few months before the murder. Lewicki testified that Becky was not upset before receiving a phone call from appellant. When Becky hung up the phone, she was crying and shaking. She then immediately told Lewicki that her husband had said that he “might as well kill me and get it over with.” Appellant contends the admission of this statement violated the rules of evidence because (1) it was not relevant, (2) it did not qualify as an “excited utterance” exception to the hearsay rule, (3) it was an inadmissible extraneous offense, and (4) its prejudicial effect outweighed its probative value. See Tex. R. Evid. 401, 803(2), 404(b), 403.

          Standard of Review

          We review a trial court’s ruling on the admissibility of evidence under an abuse of discretion standard. Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999); Erdman v. State, 861 S.W.2d 890, 893 (Tex. Crim. App. 1993). We will reverse only if the ruling is outside the zone of “reasonable disagreement.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g).

          In reviewing the admissibility of Lewicki’s statement, we bear in mind that the State is permitted in a murder prosecution to offer testimony as to all relevant facts or circumstances regarding the killing, the previous relationship between the accused and the deceased, or the accused’s state of mind. Tex. Code Crim. Proc. Ann. art. 38.36(a) (Vernon Supp. 2003). We apply the rules of evidence to determine whether the trial court abused its discretion in admitting Lewicki’s testimony.

          (1) Relevance

          In point of error one, appellant contends that the statement was not relevant. Any evidence that is both material and probative is relevant. Tex. R. Evid. 401. Evidence is material if it influences consequential facts. Mayes v. State, 816 S.W.2d 79, 84 (Tex. Crim. App. 1991). Evidence is probative if it tends to make the existence of a material fact more or less probable than it would be without the evidence. Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001).

          Appellant argues that whether appellant threatened his wife months before killing her was neither material nor probative, “especially in light of the fact that no issue had been joined as to Appellant’s intent or the complainant’s state of mind.” We do not agree. The State bore the burden of proving all elements of the offense of murder, including intent. See Tex. Pen. Code Ann. § 19.02(b)(1). Moreover, whether appellant was entitled to a lesser-included offense instruction goes directly to the issue of intent. See Williams v. State, 927 S.W.2d 752, 758 (Tex. App—El Paso 1996, pet. ref’d) (holding that, given defensive theory of manslaughter, evidence of past assaults and threats tended to make it more probable that it was defendant’s conscious objective to cause death of decedent).

          Thus, we are satisfied that the evidence was both material and probative as to appellant’s intent.

          We overrule point of error one.

          (2) Hearsay Exception

          In point of error two, appellant contends that Becky’s statement to Lewicki did not qualify as an exception to the hearsay rule. Hearsay is an out-of-court assertion offered to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay is not admissible unless it is an exception to the hearsay rule. Tex. R. Evid. 802. One such exception is when the assertion was made while the declarant was under the stress of excitement caused by a startling event or condition. Tex. R. Evid. 803(2).

          Appellant contends that the State did not meet its burden to prove that the statement was not made under the “impetus of reflection” based on the amount of time that elapsed between the appellant’s threat and Becky’s relating of the threat to Lewicki. Here, Lewicki testified that Becky was not upset before receiving a phone call from appellant. When Becky hung up the phone, she was crying and shaking. She then immediately told Lewicki that her husband had said that he “might as well kill me and get it over with.” While it is true that an excited utterance must be spontaneous and close in time to the event that gave rise to it, the record reflects that both of these conditions applied. Moreover, the essential question is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event. McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992).

          Under these circumstances, Becky was clearly still dominated by the emotions aroused by appellant’s threat. We are persuaded that the statement was an exception to the hearsay rule because it was an excited utterance. Thus, the trial court did not err in admitting it.

          We overrule point of error two.

          (3) Extraneous Offense

          In point of error three, appellant contends that Becky’s statement to Lewicki was an inadmissible extraneous offense that served only to show character conformity. Extraneous offense evidence is admissible only if it tends to prove a material fact in the State’s case apart from its tendency to demonstrate an accused’s general propensity for committing criminal acts. Turner v. State, 754 S.W.2d 668, 672 (Tex. Crim. App. 1988). The threat here was admissible for the same reason it was relevant: it showed appellant’s intent. Appellant—contrary to his assertion on appeal that intent was “never an issue”—attempted to show that the shooting could have been the result of recklessness. Therefore, the statement served the purpose of showing intent, not character conformity, and the trial court did not err in admitting it.

          We overrule point of error three.

          (4) Probative Value v. Prejudicial Effect

          In point of error four, appellant contends that Becky’s statement to Lewicki was more prejudicial than probative. Even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. The party opposing admission of the testimony bears the burden of showing that the probative value is substantially outweighed by the danger of unfair prejudice. Id. Courts assess this balance by examining (1) how probative the evidence is; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible, way; (3) the time the proponent needs to develop the evidence; and (4) the proponent’s need for the evidence. Montgomery, 810 S.W.2d at 389-90.

          Appellant argues that, “Confronted with the tragic and seemingly senseless death of the complainant on the one hand and with no need at all for the State to elicit Lewicki’s testimony, there was simply too great a risk jurors misused this testimony for some other purpose—to find that Appellant was a bad person generally—than the limited purpose for which it was admitted.” We disagree. The evidence was probative of appellant’s intent, it had virtually no potential to affect the jury in an “irrational but indelible” way, and it took very little time to develop. The State’s need to elicit this testimony was not as strong as it would have been had there not been repeated testimony that Becky was afraid of appellant and Wanda’s testimony that, just before she was shot, Becky said, “He’s going to kill me.” However, this was the only testimony directly recounting what appellant said, rather than what Becky said.           We conclude that appellant did not meet his burden to show that the probative value was substantially outweighed by the danger of unfair prejudice, particularly given the instruction to the jury that it could only consider the testimony in regard to assessing appellant’s intent. We presume that the jury followed that instruction, absent a showing to the contrary. See Luquis v. State, 72 S.W.3d 355, 366-67 (Tex. Crim. App. 2002).

          We hold that the trial court did not abuse its discretion in admitting the statement.

          We overrule point of error four.

Lesser-Included Offense of Manslaughter

          In point of error five, appellant contends that the trial court erred in not giving the jury his requested instruction on the lesser-included offense of manslaughter. To be entitled to a lesser-included offense instruction a defendant must establish that (1) the lesser-included offense is included within the proof necessary to establish the offense charged, and (2) some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense. Westbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000).           The distinction between murder and manslaughter lies in the culpable mental state accompanying the defendant’s act. See Tex. Pen. Code Ann. §§ 19.02, 19.04 (Vernon 2003) (culpable mental state for murder is “intentional” or “knowing”; culpable mental state for manslaughter is “reckless”). Implicit in the statutory definitions of these offenses is the idea that the defendant must not have intended the resulting death, nor been aware that a death was reasonably certain to occur. See Jones v. State, 963 S.W.2d 177, 180 (Tex. App.—Fort Worth 1998, pet. ref’d). Therefore, for a defendant to be entitled to a jury charge on involuntary manslaughter or criminally negligent homicide, the record must contain “some” evidence that the defendant did not intend the resulting death or know that it was reasonably certain to occur. Id.

          Appellant contends the jury could have rationally concluded that appellant was reckless in chasing the complainant and pointing a loaded weapon at her in cold, rainy, and windy conditions in the middle of the night, especially after having consumed alcohol. We cannot agree. There is simply no evidence in this record that would have permitted a jury rationally to find that if appellant was guilty, he was only guilty of manslaughter. There were no witnesses to the shooting, and appellant’s only testimony regarding the circumstances of the shooting was his repeated refrains, “I don’t know” and “I don’t remember.” As the State notes, appellant’s disassociative amnesia is irrelevant, and the weather conditions—in the absence of any testimony indicating that the weather was a factor in bringing about the shooting—do not matter. Nor is appellant’s possible intoxication a factor. Voluntary intoxication does not negate intent. Tex. Pen. Code Ann. § 8.04 (Vernon 2003); Hawkins v. State, 605 S.W.2d 586, 588-89 (Tex. Crim. App. 1980).

          The forensic evidence showed that the rifle appellant used to shoot his wife had both a safety and a trigger guard, that it did not have a “hair trigger,” and that it did not accidentally discharge when it was test-dropped. The trajectory of the bullet’s path indicated it was fired from shoulder height. The only indications of recklessness came from appellant’s counsel, in the form of speculative questions that he posed to the appellant: “What do you know about whether you could have slipped and fell?”; “What do you know about whether or not the door could have been pushed open to you?”; “What do you know, if anything, about whether the vehicle could have lunged forward, causing you to inadvertently shoot?”; “What do you know, if anything, about whether you may have intended to shoot over her to scare her?” Each time, appellant responded that he did not know. Thus, appellant’s testimony cannot be construed as evidence of recklessness; counsel’s questions are not evidence.

          There is no evidence that appellant did not intend to kill his wife. Appellant’s rifle was a deadly weapon per se. Tex. Pen. Code Ann. § 1.07(a)(17)(A) (Vernon 2003). When a defendant uses a deadly weapon per se and death results, the specific intent to kill can be inferred. Moreno v. State, 755 S.W.2d 866, 868 (Tex. Crim. App. 1988). We hold that appellant was not entitled to an instruction on the lesser-included offense of manslaughter.

          We overrule point of error five.

Conclusion

          We affirm the trial court’s judgment.

                                                             /s/ Evelyn V. Keyes,

                                                             Justice

Panel consists of Justices Taft, Keyes, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).