Gold v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appéllant was indicted for the offense of murder. The indictment alleged he intentionally or knowingly caused the death of Ronald Kopp, a longtime friend whom he had discovered in a motel room with his wife. There was no dispute at trial that the issue of sudden passion arising from an adequate cause had been raised by the evidence, and thus the jury was charged in accordance with our decision in Cobarrubio v. State, 675 S.W.2d 749 (Tex.Cr.App.1983), requiring a finding of the absence of sudden passion beyond a reasonable doubt before a verdict of murder could be reached. Bradley v. State, 688 S.W.2d 847 (Tex.Cr. App.1985). Having apparently made such a finding, the jury found appellant guilty of murder, and assessed his punishment at thirty years confinement in the Texas Department of Corrections.

On appeal to the El Paso Court of Appeals appellant contended, inter alia, that the evidence was insufficient to support the jury finding that he had acted in the absence of sudden passion. In rejecting this contention, the court of appeals refused to construe our holdings in Cobarrubio, supra, and Braudrick v. State, 572 S.W.2d 709 (Tex.Cr.App.1978) as necessarily “demanding active disproof of sudden passion by the State to the same degree as any affirmative element of the offense of murder.” Gold v. State, 691 S.W.2d 760, at 763 (Tex.App. — El Paso 1985). The court of appeals reasoned that to so construe those cases would negate the jury’s prerogative to assess the credibility of witnesses. Viewing the evidence in the light most favorable to the verdict, the court of appeals effectively gleaned circumstances from the record from which it held a rational jury could choose to reject appellant’s testimony raising sudden passion, and thereby find its absence beyond a reasonable doubt. In this way the court of appeals believed it could give full play to the jury’s role as arbiter of witness credibility while preserving the requirement that the State shoulder the burden of proving absence of sudden passion. The judgment of conviction was affirmed.

Appellant petitions this Court to reverse the court of appeals’ judgment that absence of sudden passion was proven beyond a reasonable doubt. We granted appellant’s petition in order to clarify the proper standard for appellate review of this sufficiency question, particularly in view of what the court of appeals aptly called “[t]he peculiar relationship between murder and voluntary manslaughter[.]”¹ Id. See former Tex.Cr.App. Rule 302(c)(2), now Tex.R.App.Pro., Rule 200(c)(2). Ultimately we affirm the judgment of the court of appeals.

I.

There is no question from the record that appellant shot and killed Ron Kopp with a .38 caliber two-shot derringer. Kopp was shot twice as he sat in a chair in the motel room, once through the shoulder area, a nonf atal wound, and again in the top of the head, apparently as he slumped over. The second shot was the cause of death. The issue at trial was not the identity of the killer, but his state of mind at the time of the killing.

The State’s evidence established the following. At approximately 9:45 p.m. on the night of June 6,1983, appellant appeared at the front desk of the Airport Holiday Inn in El Paso, asking if the motel had a guest by the name of “Kopp.” At first appellant was directed to room 305. When the motel clerk volunteered to alert the guest that he was coming, appellant declined, asserting that he “wanted to surprise him.” Ten to fifteen minutes later, appellant returned to the front desk and inquired if the motel might have another “Kopp” registered. The clerk discovered that there was in fact another, in room 153.

Sometime around 9:50 p.m. Robert Sil-vester answered a “harsh” knock at his door in room 151. There he found appellant, who apologized for having the wrong room and left. Ten minutes later Silvester heard the same harsh knock next door. He then heard “some shouting, and a woman kind of screaming,” a door slam, and a male voice ask, “What are you doing here?” After another eight to ten minutes he heard a shot, and, ten to fifteen seconds after that, a second shot. Peering through the curtain of his window, Silvester watched appellant and a woman depart from the room next door and drive away in a blue “sporty-looking” car.²

Appellant and his wife, Nellie Lopez Gold, appeared at the front door of Nellie’s aunt and uncle, Esther and Robert Taylor, sometime between 10:45 and 11:00 p.m. that night. Appellant told them he had “just killed a man, that he shot Nellie’s lover.” Esther testified that, asked whom he had shot, appellant told her, “Ron Kopp.” Appellant called his attorney, and while waiting for a return call, related the details to the Taylors. He said he had been looking for Nellie all day. Thinking she might have gone to pick up her yellow Capri, which a mechanic friend named Bill Cronk was supposed to be working on, he went to find her there. Cronk told him the Capri was gone, that Kopp might be in town, and that he might have it. Appellant decided Kopp must indeed be in town, and began checking “from motel to motel, looking for the yellow car.” He spotted it at the Holiday Inn. After ascertaining the correct room number, appellant proceeded to room 153 and saw through the window that Kopp and Nellie were both inside, both, he seemed to emphasize, fully clothed. The Taylors each testified that appellant did not indicate the lights in room 153 had at any time been out. Appellant knocked and entered, and began pushing and slapping his wife, asking both of them, “Why, why ... ?” Remembering he had left his derringer in the Monza, which was parked outside by the Capri, he retrieved it. He then shot Kopp. Though Robert Taylor testified appellant did not say how many times Kopp was shot, Esther was “positive” appellant told her he had shot Kopp twice. She testified, in addition, that appellant and Nellie had been to a marriage counselor and had already decided to separate when the killing took place.

Forensic evidence showed that the recovered slugs had been fired from appellant’s derringer, and that appellant had handled the derringer around the time of the killing. Kopp’s body revealed no defensive wounds. Physical evidence indicated that the shot that passed through Kopp’s shoulder was fired while he was sitting in a chair by the door. The other shot, presumably the second, was fired while the muzzle of the gun was “very close to contact” with Kopp’s head. It was also shown that appellant’s derringer had to be recocked between shots.

Appellant testified in his own defense. He explained that his marital difficulties stemmed from his inability to find work as a pipefitter and welder. Looking for such work, appellant had gone up to Detroit in May, and had returned to El Paso with the blue Monza to sell. Kopp apparently commuted frequently between Detroit and El Paso. Early one morning, still in May, appellant had arrived home from working night shift at a temporary job to find Kopp lying unexpectedly on his couch. Kopp frequently bragged of his romantic conquests, and appellant had wondered why Kopp never dated when he was in El Paso. Kopp had also boasted of being a martial arts expert.

On the morning of June 6th, Kopp telephoned appellant, supposedly from Detroit, to say he was flying down to sell the Mon-za to Bill Cronk. In truth, it was shown that Kopp had been checked into the Mesa Motel in El Paso since June 3rd, but that he had moved to the Holiday Inn on the morning of the 6th. Appellant and Nellie spent most of that day running various errands. At 4:45 p.m. Nellie left to make a Tupperware delivery, promising to hurry home so that they could go pick up her Capri from Cronk. When she did not soon return, appellant went to Cronk’s to see if Nellie was there, but he found neither her nor the Capri. Cronk told him Kopp might have the car, and was “probably in some motel room with one of his girlfriends.” Appellant then went home and called Detroit. When Kopp’s roommate there was decidedly uninformative, appellant concluded any woman he might find in a motel with Kopp would probably be his wife. He began to search.

Finding the Capri and Monza parked in front of rooms 151 and 153 of the Holiday Inn, appellant first knocked on Silvester’s door. He then knocked at room 153, but the lights were off and no one answered. At that point he went to the front desk, and was eventually directed back to room 153. This time Kopp answered his knock, looking “guilty” and “caught.” Kopp informed appellant he had come to take Nellie back to Detroit. Appellant began “yelling and screaming and cussing,” and tried to force Nellie to leave with him. When she resisted, he walked out to the Monza. Kopp followed, "leering" and "pissed off.” Remembering Kopp’s martial arts expertise, appellant pulled out the pistol and exclaimed, “Back off, you son of a bitch.” Quickly Kopp calmed down and urged appellant to return to the motel room to discuss matters. Appellant agreed in the hope of getting “another crack” at convincing Nellie to leave with him.

Once inside the room, however, the “screaming and cussing” recommenced. Appellant slapped Nellie and pushed her, and she “ended up on the bed.” From the chair by the door, five to seven feet behind appellant, Kopp then proclaimed: “All right, I come down here from Michigan to take Nellie back with me. We’ve been very intimate and what the fuck are you going to do about it?” As the court of appeals put it, “Appellant showed him:”

“I lost it, I really did. I whirled; like I said, I was facing Nellie, I whirled and the next I know Ron is dead or, at least, I think he was dead.”

Appellant also testified:

“I went blank. I blew up inside.”

* * * # * *

“I just lost it, I just exploded.”

* # * # * %

“I blew up, I kind of went blank. Everything just erupted. I don’t know how to exactly put it.”

Appellant professed to have no memory of pulling the trigger, of the number of shots he fired, or of ever putting the gun to Kopp’s head.

II.

In making the determination whether sudden passion has been raised in a given case, this Court simply inquires whether there is any evidence, however weak, contested or incredible, which could support a rational jury finding that the accused acted under the immediate influence of sudden passion arising from an adequate cause. E.g., Gonzales v. State, 546 S.W.2d 617 (Tex.Cr.App.1977) In the instant cause there was no question that sudden passion was raised — it was, in fact, the pivotal issue in the case, as final argument of counsel for both sides bears out. Indeed, on this record it would not only-have been reversible error to refuse a requested charge on the lesser included offense of voluntary manslaughter, id., it would have constituted fundamental error not to require the jury to find an absence of sudden passion in support of a murder conviction. Lawrence v. State, 700 S.W.2d 208 (Tex.Cr.App.1985); Castillo-Fuentes v. State, 707 S.W.2d 559 (Tex.Cr.App.1986). Here, however, the question is not simply whether sudden passion has been raised. Rather, we must determine whether the evidence in this case was such as to compel a rational jury either to find appellant did in fact act under the immediate influence of sudden passion arising from an adequate cause, or at least to harbor a reasonable doubt that he did not — in other words, whether the State satisfied its burden to prove the implied element of absence of sudden passion beyond a reasonable doubt.

The court of appeals was concerned with what it perceived to be “an impossible burden [on] the State” to supply “active disproof of sudden passion ... to the same degree as any affirmative element of the offense of murder.” 691 S.W.2d at 763. The court believed such a requirement would unduly impinge upon the jury’s prerogative as factfinder simply to reject appellant’s assertion of what amounts to “the subjective portion” of sudden passion. Opined the court:

“Appellant’s sudden passion claim which provided an abstract basis for jury instruction is nonetheless susceptible of rejection by that body as a fact, thereby eliminating voluntary manslaughter as a verdict. This is the standard of review we endorse in a case such as this.”

Id. Accordingly, rather than looking to see whether the evidence would directly bear out an inference of absence of sudden passion, the court of appeals sought and found “affirmative evidence which would support the jury’s credibility determinations rejecting the sudden passion claim.” Id. Although we affirm its judgment, we must reject the court of appeals’ formulation of the standard of appellate review as to the sufficiency of the evidence to prove the absence of sudden passion in a murder prosecution.

This Court has held that a factfinder may not find facts necessary to establishing an element of a criminal offense purely on the basis of its disbelief of the accused’s contrary assertions. Wright v. State, 603 S.W.2d 838, 840 (Tex.Cr.App. 1980) (Opinion on appellant’s motion for rehearing). Rather, the State has the burden of going forward with evidence to show, and of persuading the factfinder beyond a reasonable doubt of every element of the offense. In Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), while recognizing the difficulty of proving a negative fact, the Supreme Court nevertheless maintained:

“... proving that the defendant did not act in the heat of passion on sudden provocation is similar to proving any other element of intent; it may be established by adducing evidence of the factual circumstances surrounding the commission of the homicide. And although intent is typically considered a fact peculiarly within the knowledge of the defendant, this does not, as the Court has long recognized, justify shifting the burden to him. [citations omitted.]”

421 U.S. at 702, 95 S.Ct. at 1891, 44 L.Ed.2d at 521. Because the issue was raised whether appellant acted “under the immediate influence of sudden passion arising from an adequate cause,” the absence of sudden passion became an element of the offense of murder. Bradley v. State, supra. The State must carry the burden of production and persuasion as to that element; the factfinder’s rejection of appellant’s assertions that he did act under such passion cannot alone supply that element consonant with due process and due course of law.

Nevertheless, applying the standard of review of the sufficiency of the evidence mandated by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), as appellant importunes us to do, we find the evidence sufficient to meet the State's burden of establishing absence of sudden passion beyond a reasonable doubt. To prove the absence of sudden passion the State may present evidence tending to establish its converse — e.g., that at the moment he intentionally or knowingly killed, appellant was capable of, and did in fact act with cool reflection, in spite of circumstances that may well have been provocative.³ Viewing all of the evidence in the light most favorable to the State, which allows a presumption that the jury invoked its prerogative to discount appellant’s own testimony as self-serving, we find that a reasonable jury could have found the absence of sudden passion beyond a reasonable doubt.

As the court of appeals noted, the witnesses who encountered appellant prior to the altercation described him as calm and controlled. Thus, at the time he arrived at the motel and conducted his search there he manifested a cool resolve, in spite of the fact that he admittedly already suspected what he would ultimately find. He took pains to preserve the element of surprise. Later he told his in-laws he discovered Kopp and his wife fully clothed, apparently with the lights on. Though heated words were then exchanged, Silvester’s testimony indicates these had subsided eight to ten minutes before the shooting occurred. The only evidence of immediate provocation at that moment is appellant’s own testimony relating Kopp’s proclamation that he had been “intimate” with appellant’s wife. Assuming the jury believed this occurred, appellant’s immediate response was to shoot Kopp in the shoulder. The second, fatal shot did not come for ten to fifteen seconds, during which appellant would have found it necessary to recock the derringer, move five to seven feet across the room, and hold the muzzle of the gun close to Kopp’s slumping head before pulling the trigger.⁴ While we certainly would not hold as a matter of law that ten to fifteen seconds is a sufficient interval for cooling off, it is nevertheless plausible on these facts that, even assuming a momentary loss of composure precipitating the initial gunshot, appellant finished the job in a cool and calculated frame of mind. Resolution of such a question is uniquely the province of the factfinder. So long as we find more than a “mere modicum” of evidence to support it, we must conclude the jury was justified in finding the absence of sudden passion beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at 319-20, 99 S.Ct. at 2789, 61 L.Ed.2d at 573-74.

Were we to sit as a “thirteenth juror” in this cause, and pass upon the weight and preponderance of the evidence to show absence of sudden passion, we might be inclined to reverse and remand it for a new trial. See Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). It is clear, however, that this Court does not have such jurisdiction. Combs v. State, 643 S.W.2d 709 (Tex.Cr.App. 1982). Viewing the evidence in the light most favorable to the verdict, we hold that a rational jury could have found the absence of sudden passion beyond a reasonable doubt.

Accordingly, the judgment of the court of appeals is affirmed.

ONION, P.J., concurs in the result.

1 . The relationship is peculiar in that at least facially the “lesser included offense” of voluntary manslaughter under V.T.C.A. Penal Code, § 19.04, actually consists of murder plus an element. This Court has held that when there is evidence in a murder prosecution raising the issue whether the accused killed "under the immediate influence of sudden passion arising from an adequate cause,” the absence of such "sudden passion" becomes an implied element of murder which the State must establish beyond a reasonable doubt in order to obtain a conviction for murder under V.T.C.A. Penal Code, § 19.02. Bradley v. State, supra. In a prosecution for voluntary manslaughter, on the other hand, the State must prove exactly what it alleges, viz: the presence of “sudden passion” beyond a reasonable doubt.

We are aware that our Braudrick/Bradley construct is less than perfect. For example, it is at least theoretically possible that a jury instructed in conformity with our holding in Co-barrubio could, having a reasonable doubt that the accused acted in the absence of sudden passion, acquit him of murder. Proceeding to the voluntary manslaughter paragraph of the charge, the same jury might have a reasonable doubt that the accused in fact did act under the influence of sudden passion, and thus be compelled to acquit of that offense as well. In other words, a jury unable to resolve its reasonable doubt one way or the other as to the presence or absence of sudden passion, would find itself in the anomalous position, presuming (as we must) that it follows the court's instructions to the letter, of exonerating a person it otherwise found had intentionally or knowingly caused the death of another.

Again we must emphasize that, as in Bradley, 688 S.W.2d at 853, n. 13, this “ludicrous position" is a product of the Legislature’s having fashioned voluntary manslaughter as an offense in its own right, rather than making "the influence of sudden passion arising from an adequate cause” an issue of mitigation to be raised at the punishment stage in a murder prosecution, see Daniel v. State, 668 S.W.2d 390 (Tex.Cr. App.1984) (Miller, J., concurring), or an "affirmative defense” to murder, see Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). We again invite the Legislature to address this matter.

2 . The car proved to be a Chevrolet Monza, with Michigan plates, registered to Kopp. Appellant had driven it down from Detroit the month before in an effort to sell it for Kopp in El Paso. He had been driving the Monza while his wife’s car was being repaired. Subsequent to the killing the derringer was found, holstered, in the right rear floorboard of the Monza. This was not the vehicle in which appellant had apparently arrived at the motel, however, for his green 1967 Chevrolet truck was subsequently discovered in the parking lot.

3 . There are, of course, various bases upon which a properly instructed jury could reject sudden passion, though the issue was undoubtedly raised by the evidence. First:

"[i]f the jury finds there was no provocative conduct, or at least none occuring at the time of the offense, then of course there is no finding of cause at all, much less ‘adequate cause.’ Alternatively, the jury could find there was provocative conduct, even adequate to render an ordinary man incapable of cool reflection, but that nonetheless, the defendant himself acted coolly and deliberately. Finally, it could find there was provocative conduct, that the defendant was in fact provoked, but that the provocation was not such as would render a man of ordinary temper incapable of cool reflection."

Gonzales v. State, 717 S.W.2d 355, 361 (Tex.Cr. App.1986) (Clinton, J., dissenting). Any one of these variants would justify a finding of absence of sudden passion in support of a murder conviction under Bradley v. State, supra.

4 . At final argument the jury was invited to consider the fact that under the law as it stood when the case was tried, though appellant's wife was incompetent to testify against him, she could have been called to testify in his behalf, but was not. Former Article 38. li; V.A.C.C.P. Presumably she could have related a "shorthand rendition" of what appellant’s state of mind seemed to be when he killed Kopp. See, e.g., Jones v. State, 47 Tex.Cr.R. 515, 85 S.W. 5 (1905). That she did not would tend to indicate she had nothing to relate that would show sudden passion, and it was permissible to urge the jury to view the evidence with this in mind. E.g., Fisher v. State, 511 S.W.2d 506 (Tex.Cr.App. 1974).