Saxton v. State

CLINTON, Judge,

dissenting.

Trial by jury may well be “that palladium of civil liberty” but, alas, not all jurors are infallible.

I.

“When the facts proved show that the homicide was committed in necessary self-defense and while legally exercising that right, the jury is not authorized to arbitrarily convict the accused of murder or manslaughter.”

5 Branch’s Annotated Penal Code (2d Ed. 1956) 399, § 2085, citing cases from Smith v. The State, 15 Tex.App. 338 (Ct.App.1884), through Middleton v. State, 147 Tex.Cr.R. 146 , 179 S.W.2d 510 (1944); accord: 1 Texas Annotated Penal Statutes (Branch’s 3rd Ed.1974) 347, n. I. 1

*915 Thus we find an 1884 statement of the proposition later recast by the Court in terms recently iterated in Jenkins v. State, 740 S.W.2d 435, 438 (Tex.Cr.App.1987), which excerpted it from Parkman, a 1946 opinion of the Court that in turn cited two supporting opinions of the Court: Parker in 1939 and Patton in 1935. Notwithstanding that impressive line of authority, the majority views Patton as the genesis of the rule and faults the Court for not citing any cases in it or Parker, and on that perceived omission determines to “disavow this language in the sufficiency of evidence context.” Opinion, at 912, n. 3.

That the Court considered the rule valid and viable is demonstrated by the simple fact that it worked under it and decided those cases and others in accordance with it. 2

Indeed, writing for the Court in Parkman, Judge Lloyd Davidson was not content merely to state “the controlling rule” and cite Parker and Patton. He went on to find its real genesis in the seminal opinion by Judge Hurt in Smith, supra, and examined the evidence in that light, 191 S.W.2d at 744-746; on rehearing Judge Graves did also, id., at 747. Yet, the majority treats Parkman, Parker and Patton in a vacuum, not only disregarding their precursors, see ante, at 910, but also ignoring their followings in this Court. 3

Manifestly, the rule is still “alive and well.” In Jenkins , Judge Teague properly examined the evidence in light of Park *916 man, correctly found “there was sharp conflict in the evidence as to self-defense,” so the Court was “unable to agree that the evidence was totally uncontradicted.” 740 S.W.2d, at 438 . To “disavow this language” in Parkman, Parker and Patton is to reject it without rational justification or demonstrated need.

Therefore, in this respect the court of appeals merely recognized a rule — which the State here acknowledges the “rather colorful old case [of Smith v. The State established],” Brief at 6 — supported by more than one hundred years of consistent precedent, and I dissent to that part of the majority opinion rejecting it. Opinion, at 912 n. 3 and related text.

II.

The core premise of the court of appeal is: “[T]he State must produce evidence which establishes beyond a reasonable doubt that Appellant did not act in self-defense.” Saxton v. State, 776 S.W.2d 685, 686 (Tex.App.—Houston [14th] 1989) (emphasis in original opinion).

The sole ground for review as amended in State’s Brief is: “The Court of appeals erred in holding that the evidence was insufficient to support the conviction because the State did not disprove the appellant’s testimony regarding self-defense.” Brief at 1. Thus immediately at the threshold we have a pivotal question: whether the State has a burden to produce evidence proving beyond a reasonable doubt that appellant did not act in self-defense, to secure a conviction for murder. 4 Unless the law under our former penal codes has been changed, the answer is also immediately found, ironically, in Parkman v. State, supra.

Article 46, P.C.1925 provided:

“When the facts have been proved which constitute the offense, it devolves upon the accused to establish the facts or circumstances on which he relies to excuse or justify the prohibited act or omission.”

In Parkman an appellate ground asserted the jury should have been instructed “that the burden of proof was upon the State to prove that the appellant did not act in self-defense when he shot the deceased.” Writing for the Court, Judge Davidson summarily disposed of that claim:

“... In other words, it is appellant’s contention that when self-defense arises under the testimony in a homicide case, the burden of proof is upon the State to disprove that defense in order to secure a conviction. Such is not the law. Dover v. State, 102 Tex.Cr.R. 113 , 277 S.W. 675 [1925]; Briley v. State, 138 Tex.Cr.R. 249 , 135 S.W.2d 125 [1940]; Art. 46, P.C.”

Id., at 747. 5 Pursuant to former article 46 whenever the evidence raised the issue of self-defense, the proper manner of submitting it was to charge on the law and then apply it to the facts, correctly allocating burdens of evidence and of persuasion. See, e.g., “a most favorable charge for appellant” approved in Johnson v. State, 156 Tex.Cr.R. 534 , 244 S.W.2d 235, at 237 (1951), copied in 4 Branch’s (2d Ed.1956) *917 401, § 2087. 6

The “new” penal code did not change the law of self-defense with respect to burdens of proof and of persuasion. Section 2.03 resolved problems of courts determining to which offenses a defense applies and the nature of the burden by designating and specifying them in the penal code. As the majority recognizes, justification through self-defense is a defense to prosecution. Opinion, at 912, n. 5.

Therefore, under § 2.03(c) if evidence is admitted supporting the existence of self-defense, the court should submit the issue to the jury; according to § 2.03(d) when the issue is submitted to the jury “the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.” The latter formulation allocates the respective burdens of the parties, viz:

"... In other words, the defendant has the burden of producing evidence to raise a defense, but the prosecution has the final burden of persuasion to disprove it. Ramos v. State, 478 S.W.2d 102 (Tex.Cr.App.1972).”

Practice Commentary to § 2.03. For one form of an application paragraph, see McCormick & Blackwell, Texas Criminal Forms and Trial Manual, 8 Texas Practice 321, § 86.07. 7 See also 1 Texas Annotated Penal Code (Branch’s 3d Ed.1974) 346, § 9.32.

Thus governing statutes, precedential caselaw and prevailing practice demonstrate that the court of appeals did indeed err in opining that “the State must produce evidence which establishes beyond a reasonable doubt that Appellant did not act in self-defense.” Saxton, supra, at 686 . To that extent I agree with the majority opinion at 913. 8 Having found erroneous *918 the core premise on which the reason for the decision of the court of appeals is based, we should simply vacate the judgment of the court and remand the cause to the court of appeals for reconsideration.

. In Smith v. The State, supra, after discussing law and evidence relative to aspects of self-defense for the Court, Judge Hurt posed and answered pertinent questions, viv

"Do not the facts in this case bring the defendant clearly and fully within the rule [of self defense] stated above? If not, is it possible for a party accused of murder to make the *915 rule a protection, notwithstanding the verdict of the jury? Or is this rule completely within the control of the jury, to be extended or withheld from the defendant at their pleasure, be the evidence what it may? We are of the opinion that the evidence in this case fails to show the defendant guilty of murder, but, to the contrary, if such be possible, makes a case of self-defense beyond any sort of question, and that the verdict of the jury is not supported by the evidence."

Id., at 346. (All emphasis here and throughout is mine unless otherwise indicated.) See Middleton v. State, supra, at 512-513; Garello v. State, 31 Tex.Cr.R. 56 , 20 S.W. 179, at 182 (1892); Hallowel v. State, 28 S.W. 468 (Tex.Cr.App.1894); Carson v. State, 43 Tex.Cr.R. 265 , 64 S.W. 1046 (1902); Chambless v. State, 77 S.W. 2 (Tex.Cr.App.1903) (jury may not arbitrarily find a verdict, regardless of undisputed facts of self-defense); Clarkston v. State, 79 S.W. 304 (Tex.Cr.App.1904); Green v. State, 72 Tex.Cr.R. 538 , 162 S.W. 1151, 1152 (1914); Pittman v. State, 140 Tex.Cr.R. 264 , 144 S.W.2d 569 (1940) (verdict of jury always upheld when there is evidence to support it, but if verdict is against uncontroverted testimony of self-defense duty of the court is to set it aside).

. Judge Krueger, writing as commissioner for the Court in both Parker and Patton, stated the rule in substantially the same language, as if by rote. Conducting a review under that rule the Court agreed the evidence as to self-defense was not uncontroverted and thus it could not find self-defense as a matter of law. Parker, at 230 and at 231 (motion for rehearing); Patton, at 775.

Moreover, in 1944 Presiding Judge Hawkins wrote the opinion on rehearing in Middleton, supra, finding self-defense as a matter of law and reversing the judgment of conviction, relying on, e.g., Smith, Carson and Green , all supra and cited ante in note 1. 179 S.W.2d at 513-515 . Compare dissenting opinion of Judge Graves:

“My brethren have held that the sum total of this testimony leads one to the inescapable conclusion that the uncontradicted facts show a case of perfect self-defense under the law.

Under these circumstances, I am not willing to say that as a matter of law these facts make a case of perfect self-defense.... If the facts as related by appellant were undisputed ... I think my brethren would be correct ...”

Id., at 514-515. Implicitly the Court tested the evidence under the rule of Smith, Parker and Patton.

. The most cited cases include:

Garcia v. State, 454 S.W.2d 400, 406 (Tex.Cr.App.1970); Escamilla v. State, 464 S.W.2d 840, 841 (Tex.Cr.App.1971); Whitfield v. State, 492 S.W.2d 502, 504 (Tex.Cr.App.1973); Powers v. State, 497 S.W.2d 594, 596 (Tex.Cr.App.1973); Appleman v. State, 531 S.W.2d 806, 808 (Tex.Cr.App.1975).

For recognition of the rule by courts of appeals, see, e.g.:

Cruz v. State, 629 S.W.2d 852, 860 (Tex.App.—Corpus Christi 1982), PDR refused; Huffman v. State, 691 S.W.2d 726, 728 (Tex.App.—Austin 1985), no PDR history; Sebree v. State, 695 S.W.2d 303, 305 (Tex.App.—Houston [1st] 1985), no PDR history; Williams v. State, 710 S.W.2d 828 (Tex.App.—Dallas 1986), PDR refused; Torres v. State, 751 S.W.2d 705, 707 (Tex.App.—Corpus Christi 1988), PDR refused; Torres v. State, 785 S.W.2d 824 (Tex.Cr.App.1890); Collins v. State, 754 S.W.2d 818, 821 (Tex.App.—Houston [1st] 1988), PDR refused; Hernandez v. State, 774 S.W.2d 319, 321-322 (Tex.App.—Dallas 1989), PDR refused.

. In dealing with matters of “burden of proof’ one must realize, understand and compensate for the fact that "difficulties are sure to be encountered ... from the ambiguous phraseology and terminology employed." Ray, Law of Evidence § 41, 1 Texas Practice 48. Professor Ray notes:

"... It is now commonplace that the term “burden of proof is used in a double sense. It may mean either the burden of persuading the trier of fact or the burden of introducing evidence. Much confusion would be eliminated if these or similar terms were constantly employed and the ambiguous word ‘proof entirely discarded.”

Ibid. (And this writer adds "disprove,” in lieu of "show.”)

. The Briley opinion, coincidentally, was written by Judge Krueger, the author of Parker and Patton, discussed ante at 911-912. Answering a contention that the state failed to show defendant did not kill deceased in self-defense, Judge Krueger said, "The state is not required to negative every possible defense. The evidence is certainly sufficient to allow the jury to come to *917 the conclusion of a killing without excuse or justification.” Id., 135 S.W.2d at 127 .

. “If you believe from the evidence, beyond a reasonable doubt, that the defendant [shot and killed deceased], but you further believe from the evidence that [he met prescribed factual requisites], then you should acquit the defendant, OR, if the jury should have a reasonable doubt whether or not the defendant was acting in self-defense ..., you should give the defendant the benefit of the doubt and acquit him.”

. "Now, therefore, ... if you believe from the evidence beyond a reasonable doubt that the defendant then and there intentionally or knowingly caused the death of [deceased by prescribed manner and means], as alleged in the indictment; but you further find from the evidence, OR have a reasonable doubt thereof, that the defendant reasonably believed [prescribed factual requisites], you will acquit the defendant and say by your verdict 'not guilty.’ ”

. Unlike the majority, however, I would not attribute that error to § 2.03(d), for reasons already given, nor to the opinions of this Court in Luck and Van Guilder, for reasons about to be stated.

As indicated ante in n. 4, at 912, in my view, one term conducing to wrong thinking about this problem is "to disprove." Because in common usage it means "to prove to be false,” one may believe that "to disprove” is a shorthand rendition of "burden of proof’ in the sense of "burden of producing evidence." See Ray, at 48, § 41. Indeed, the majority is under the impression that socalled “dicta in both Luck and Van Guilder support such a proposition,” opinion, at 914.

However, in context of a criminal action if applied to the prosecution such belief is incorrect, for whatever confusion exists over "burden of proof’ there is no doubt whatsoever that the prosecution always has the “burden of persuasion,” that is, the "burden of persuading or convincing the trier of fact [of guilt].” Ray, at 52, § 43, 48, § 42. Moreover, the generally accepted view is that once fixed the burden of persuasion never shifts. Id., at 57-58, § 46.

Thus to say the prosecution must “disprove” a defense means no more than “rebut” or "show” in the sense of countering by argument or reasoning or, at its option if deemed advisable, evidence. Ray, at 48-49, § 48.

The Practice Commentary to § 2.03(d) identifies respective burdens more concisely, viz: ”[T]he defendant has the burden of producing evidence to raise a defense, but the prosecution has the final burden of persuasion to disprove it."

Having just quoted the Practice Commentary and summarized the charge actually given in terms consonant with accepted practice. Judge Tom Davis continued: “Clearly, when the charge is viewed as a whole, it placed the burden on the State to SHOW beyond a reasonable doubt that appellant was not acting in self defense." 588 S.W.2d, at 375. That is not to say, in terms and effect, however, that the charge placed on the State, the "burden to produce evidence,” the "burden of proceeding or going forward with the evidence” or the "burden of introducing evidence," etc. See Ray, at 54, § 44.

Van Guilder, at 181, merely restates the same understanding.