Bailey v. State

DISSENTING OPINION

ON APPELLANT’S MOTION FOR REHEARING

ROBERTS, Judge.

I.

The following is the opinion originally prepared and submitted to this Court on rehearing by the Honorable Carl E. F. Dally, Commissioner for the Court. I adopt it as Part I of my dissent to the majority’s disposition of this case on rehearing.

“The appellant’s motion for leave to file a motion for rehearing was granted. We now agree that appellant’s first ground of error was improperly decided. The motion for rehearing will be granted.

“The appellant knew he was the principal beneficiary of the deceased’s will. The appellant’s counsel timely objected that until it was shown the appellant had knowledge that the deceased intended to change the provisions of her will, the court should not admit the testimony of deceased’s attorney that she had an appointment to execute a new will on the afternoon of the day she was killed.

“Circumstances that show a defendant had a motive to kill the deceased are only admissible if it is first shown that the circumstances were probably known to the defendant. See McCormick and Ray, Evidence, Sec. 1534 (2d ed. 1956); Wigmore, Evidence, Sec. 389 at 329 (3d ed. 1940). If the circumstances are not known to a defendant, they could not stimulate the emotion causing the defendant to kill the deceased.

“The rule stated has been applied in many of the prior decisions in this State. Judgments have been reversed when circumstances were admitted to show a motive for murder but it was not shown that the defendant had knowledge of the circumstances. See e. g. Phillips v. State, [ 22 Tex.App. 139 ], 2 S.W. 601 (Tex.Ct.App.1886); De Leon v. State, [ 68 Tex.Cr.R. 625 ], 155 S.W. 247 (Tex.Cr.App.1913); Young v. State, [ 59 Tex.Cr.R. 137 ], 127 S.W. 1058 (Tex.Cr.App.1910); Black v. State, [ 82 Tex.Cr.R. 358 ], 198 S.W. 959 (Tex.Cr.App.1917); Kirklin v. State, [ 73 Tex.Cr.R. 251 ], 164 S.W. 1016 (Tex.Cr.App.1914); Terry v. State, [ 45 Tex.Cr.R. 264 ], 76 S.W. 928 (Tex.Cr.App.1903); Berwick v. State, [ 116 Tex.Cr.R. 508 ], 31 S.W.2d 655 (Tex.Cr.App.1930); Edmondson v. State, [ 109 Tex.Cr.R. 518 ], 6 S.W.2d 119 (Tex.Cr.App.1928).

“This rule has been recognized and found to be satisfied in many cases. See e. g. Golin v. State, [ 37 Tex.Cr.R. 90 ], 38 S.W. 794 (Tex.Cr.App.1897); Barkman v. State, [ 41 Tex.Cr.R. 105 ], 52 S.W. 73 (Tex.Cr.App.1899); Smith v. State, [ 44 Tex.Cr.R. 53 ], 68 S.W. 267 (Tex.Cr.App.1902); Harrelson v. State, [ 60 Tex.Cr.R. 534 ], 132 S.W. 783 (Tex.Cr.App.1910); Martin v. State, [ 91 Tex.Cr.R. 23 ], 236 S.W. 729 (Tex.Cr.App.1922); Arriola v. State, [ 108 Tex.Cr.R. 270 ], 1 S.W.2d 287 (Tex.Cr.App.1927); Davis v. State, [ 118 Tex.Cr.R. 410 ], 40 S.W.2d 809 (Tex.Cr.App.1931); Morgan v. State, [ 121 Tex.Cr.R. 424 ], 49 S.W.2d 788 (Tex.Cr.App.1932); Brown v. State, [ 172 Tex.Cr.R. 229 ], 355 S.W.2d 718 (Tex.Cr.App.1962). Among the cases from other jurisdictions recognizing the rule here applied are People v. Gaugas [Gougas], [ 410 Ill. 235 ], 102 N.E.2d 152 (Ill.Sup.Ct.1951); Spradlin v. State, [ 88 Ga.App. 230 ], 76 S.E.2d 435 (Ga.App.1953).

“The State does not argue that there is evidence to show the appellant had knowledge the deceased intended to change her will. The State merely argues that greater latitude in admitting evidence is permissible since this is a case based wholly on circumstantial evidence. For this general rule *326 they cite and rely only upon Knapp v. State, 504 S.W.2d 421 (Tex.Cr.App.1973) and Ethridge v. State, [ 133 Tex.Cr.R. 287 ], 110 S.W.2d 756 (Tex.Cr.App.1937). This general rule contained in these authorities is not contrary to our holding in this case.

“The rule applied in this case governing the admission of circumstances to show motive in a murder case is equally applicable to direct and circumstantial evidence cases. See Phillips v. State, supra. The appellant’s motion for rehearing is granted.”

II.

This case should be reversed for another reason. On original submission I concurred in the affirmance of appellant’s conviction despite my reservations about the court’s instruction on the independent acts of a third party. After'careful reconsideration, I have concluded that the trial court reversibly erred in this portion of the charge because it failed to submit this defensive issue as an affirmative instruction. As this Court said in Barton v. State, 172 Tex.Cr.R. 600, 601-602 , 361 S.W.2d 716, 717 (1962):

“It is well settled that an accused is entitled to an affirmative instruction on the law as to every defensive issue raised by the evidence, even though such issue be raised by his testimony alone.”

And in Carter v. State, 515 S.W.2d 668, 669 (Tex.Cr.App.1974), we held:

“When a defensive theory is raised by evidence coming from any source, and a charge thereon is properly requested, it must be submitted to the jury. See Gavia v. State, 488 S.W.2d 420 (Tex.Cr.App.1972).”

This is true regardless of “whether [the evidence is] produced by the State or the defendant, and whether it be strong, weak, unimpeached, or contradicted.” Thompson v. State, 521 S.W.2d 621, 624 (Tex.Cr.App.1974).

An affirmative charge is one which states in clear and positive terms the issues the jury is called upon to determine. Reynolds v. State, 8 Tex.App. 412 (Austin Term, 1880). It “should be so framed as not to give undue prominence to any fact, theory, or proposition of law,” Moore v. State, 59 Tex.Cr.R. 361, 364 , 128 S.W. 1115, 1116 (1910); moreover, it should be “disconnected from the theory of the state.” Moore, supra. In short, it must not “unduly emphasize the theory of the prosecution, thereby deemphasizing proportionally the defendant’s theory.” Perez v. United States, 297 F.2d 12, 16 (5th Cir. 1961).

The rationale for the rule is best stated in the early case of Reynolds v. State, supra, a burglary prosecution where the defendant attempted to show that one Griffin had probably committed the offense: 1

“Repeated decisions of courts of last resort in this State, as well as the provisions of our statute, have established the principle that upon the trial of a felony case it is incumbent upon the court to instruct the jury as to the law, and all the law, applicable to the case, and to every issue legitimately deducible from the evidence. It is the fundamental policy of the law that in trials for the graver of-fences, [sic] which may result in the deprivation of life or liberty, the jury shall have presented to them in plain language the law governing the exact issues they are called upon to determine, so framed that their minds can readily comprehend and solve the question of guilt or innocence by an easy and simple application of the law to the facts they find to be true.

“A charge which submits some of these issues, especially such as are based upon evidence tending to establish the innocence of the person on trial, in an inferential or negative way, does not meet this *327 legal requirement. The defendant is entitled to a distinct and affirmative presentation of the issues arising upon his evidence, in order that the jury may not be induced to ignore his defences [sic] upon the supposition that the court did not deem them of sufficient importance to justify consideration, and for a further reason that without such presentation the jury are in no condition to make an intelligent selection of the law which should govern them in case they should find that the defendant’s evidence was true. Heath v. The State, 7 Texas Ct.App. 464; Smith v. The State, 7 Texas Ct.App. 414; Beckham v. The State, [8 Tex.Ct.App.] 52.

“It may often happen that the testimony in defence [sic] has been fabricated, and that so inartistically as to bear upon its face an air of improbability or actual untruth; but even then the court is not relieved from the duty of considering it in framing his charge, as it is the right of the defendant to have its truth or falsity determined by the jury and not by the court in the first instance. As said by this court in the recent case of Riojas v. The State, [8 Tex.Ct.App.] 49, [50,] in discussing this identical question: ‘In view of all the evidence elicited on the trial, it is more than probable that this defence, [sic] even under a proper instruction, would have had no appreciable effect with the jury, and would have been discarded altogether by them in reaching their conclusion. But that was not a question for the determination of the court below, and cannot be with this court on appeal. The provinces of court and jury are plainly and rigidly defined by law, and it is not for the former to act upon a belief that the latter cannot be affected by any particular portion of the evidence. Possibly they (the jury) may entertain an altogether different view of the evidence, as is their undoubted prerogative under the law.’ ” Reynolds v. State, supra, at 414-415, (Emphasis added.)

The emphasized language makes it evident that the major reason for the rule is that a charge which fails to instruct affirmatively on the evidence favorable to the defendant constitutes a comment on the weight of the evidence in violation of what is now Art. 36.14, Vernon’s Ann.C.C.P. Compare Art. 38.05, V.A.C.C.P. Accord: McLaughlin v. State, 10 Tex.App. 340 , 357-358 (Austin Term 1881).

What remains is the question of what form an affirmative charge should take. The recent case of Cozby v. State, 506 S.W.2d 589 (Tex.Cr.App.1974), is helpful. In Cozby , this Court reversed the conviction because of the trial court’s failure to give an affirmative charge on the issue of “good faith” purchase. There the court approved as an “affirmative charge” a requested charge which used the following language:

“You are further instructed that if you believe from the evidence that the Defendant, Charles Cozby, purchased the red ’71 Ford LTD, in good faith, alleged to have been stolen from Ted Arendale Ford, if you have so found, from the said Ray Woods and paid valuable consideration for the purchase of said automobile, then you will say by your verdict ‘Not Guiltyor if you have a reasonable doubt thereof, you will acquit the Defendant.” (Emphasis added.)

The charge which was given in Cozby —but deemed inadequate by this Court— was as follows:

“Even though you should find and believe from the evidence beyond a reasonable doubt that the Defendant received from person or persons unknown property described in the indictment of the value of over Fifty Dollars, yet you cannot convict the Defendant unless you further find and believe from the evidence, beyond a reasonable doubt, that, at the time he so received said property, if he did, the Defendant received the same fraudulently, with the intent to appropriate said property to his own use and benefit and to deprive the owner of the value thereof, and that the Defendant then knew that *328 the same had theretofore been stolen, and if you have a reasonable doubt as to whether the Defendant received such property fraudulently, or as to whether the Defendant knew at the time he received the same, if he did, that such property had theretofore been stolen, then you will acquit the Defendant.” (Emphasis added.)

The requested charge in Cozby follows the guidelines outlined above; that is, it states the defensive theory affirmatively, using direct language: “If you believe . you will acquit the Defendant.” Similarly, the charge given in Cozby presents the defensive theory in negative terms which unduly emphasize the State’s theory of the case: “ . . you cannot convict the Defendant unless you find and believe . . . ”

In this case the State’s evidence raised the issue of whether the homicide was committed by the acts of a person other than the appellant. Accordingly, the appellant made a timely objection to the court’s charge for its failure “to instruct for acquittal if the jury finds that the death of the deceased was caused by the independent act of a third person.”

The trial court responded to this objection by giving the confusing and seemingly contradictory charge which is reproduced in the concurring .opinion on original submission. The appellant then objected to the form of this charge.

The charge given in this case strongly resembles the charge in Cozby , not only in its negative emphasis, but in its capacity for creating confusion in the minds of the jurors and implying to them that the trial judge favored the State’s view of the case. Reynolds v. State, supra; McLaughlin v. State, supra. Similarly, the charge requested here by the appellant is in the form endorsed by the Court in Cozby . It should have been given; the failure to do so was reversible error. See Burkhalter v. State, 79 Tex.Cr.R. 336 , 184 S.W. 221 (1916), and Ward v. State, 71 Tex.Cr.R. 310 , 158 S.W. 1126 (1913), for examples of the charge as it should have been given.

The judgment should be reversed.

ODOM, J., joins in Part I of this dissent.

. Griffin was, providentially, absent from the trial court’s jurisdiction at the time of trial. The Court of Appeals summarized Reynolds’ defense with the following language: “In short, the defence [sic] saddled the onus on Griffin, who, all things considered, was in good plight to carry it.” Reynolds, supra, 8 Tex.App. at 414.