Mayfield v. State

TEAGUE, Judge,

concurring.

Although I agree with the holding that took Judge Clinton 13 pages to reach, that because the evidence did not raise the issue, the trial court did not err in not giving the appellant’s requested instruction on the law of independent impulse, I am only able to concur in the result because there is just simply too much needless dicta in his 13-page opinion.

It is now axiomatic that if the evidence does not raise a defensive issue, the trial court is not required to give an instruction on the issue. See the many, many cases collated under West Criminal Law Key 772(6). Furthermore, before and since Almanza v. State, 686 S.W.2d 157 (Tex.Cr. App.1985), a charge that adequately protects an accused’s rights is sufficient if the jury could have acquitted him under it, had they believed his version of the facts. E.g., Smith v. State, 502 S.W.2d 133, 134 (Tex. Cr.App.1973). Here, the trial judge instructed the jury that it was to find the appellant not guilty if they did not find from the evidence beyond a reasonable doubt that the appellant acted with intent to promote or assist, or encourage, direct, aid, or attempt to aid “an unknown black male” 1 when that person committed the offense, and also instructed the jury that if they had a reasonable doubt thereof they were to acquit the appellant. Under Al-manza, supra, how was the appellant harmed by the trial judge’s refusal to instruct on the theory of independent impulse? Cf. Porter v. State, 505 S.W.2d 570, 572 (Tex.Cr.App.1974). Furthermore, to have given the requested charge would have perhaps singled out testimonial evidence, which before and since Almanza, supra, would have been impermissible as being a comment on the weight of the evidence. See Aguilar v. State, 444 S.W.2d 935 (Tex.Cr.App.1969). Also, the denial of a defendant’s requested instruction is not error where the requested instruction is merely an affirmative submission of a defensive issue which merely denies the existence of an essential element of the State’s case, the presentation of an alternative theory if you please. See Barnette v. State, 709 S.W.2d 650, 651 (Tex.Cr. App.1986); Green v. State, 566 S.W.2d 578, 584 (Tex.Cr.App.1978). The requested charge, by analogy, closely resembles a requested charge on the defense of impossibility, emergency, involuntariness, mis-identification, or impotence, which need not be given. See Sanders v. State, 707 S.W.2d 78, 81 (Tex.Cr.App.1986); Pelham v. State, 664 S.W.2d 382, 385 (Tex.App.— Amarillo 1983), P.D.R. refused; Klein v. State, 662 S.W.2d 166 (Tex.App.—Corpus Christi 1983, No P.D.R.).

In holding that the trial court erred in refusing the appellant’s requested instruction on the theory of independent impulse, the court of appeals never actually stated just exactly why, in light of the facts that were presented to the jury, the appellant *518 was entitled to an instruction on the theory of independent impulse. The facts, as set out in the court of appeals’ opinion, see Mayfield v. State, 690 S.W.2d 682, 686 (Tex.App.—Houston [1st] 1985), and re.peated in Judge Clinton’s opinion, should make it obvious to anyone that if guilty of any offense at all the appellant was guilty only as a party to the offense of robbery, and the jury was instructed that if it did not believe, or if it had a reasonable doubt thereof, it was to find the appellant not guilty. The theory of independent impulse, as a defense to a criminal wrong, is just simply not implicated in the facts that were adduced in this cause. Thus, the evidence did not raise the defensive theory of independent impulse by the “unknown black male”; therefore, the trial judge did not err in refusing the appellant’s requested instruction, and that is all that needs to be stated by this Court. Thus, the majority opinion needlessly wastes much time in discussing, inter alia, the subject of independent impulse.

As 90% of the majority opinion is filled with dicta, I shall also fill my opinion with dicta.

Why should an accused ever get an instruction on independent impulse?

My research reveals that, for Texas law purposes, the theory of independent act or impulse by other than the accused may have actually gained prominence in this Court’s decision of Serrato v. State, 74 Tex.Cr.R. 413 , 171 S.W. 1133 (1914). Judge Harper’s discussion of the subject, in the opinion that he authored for the Court, as it relates to the law of conspiracy, summarized what he had just quoted and stated: “It is thus seen that if the crime committed is not in any way connected with the common purpose and design, but is an independent act of one of the parties, although he did it while engaged in the design, the others would not be legally responsible for such independent act, but if the crime was in furtherance of the common purpose and design, and the facts show that it was such an offense as might have been and should have been contemplated by the parties would be the result of the execution of the common design, and it was so executed, then all engaged in the unlawful purpose are equally guilty of the offense, although they, at the time, may have been engaged in some other part of the common purpose and design.” (My emphasis.) ( 171 S.W. at 1139-1140 ). A clear reading of the opinion should make it obvious to anyone that Judge Harper was not announcing a new defense in the form of independent act or impulse in our law, but was simply pointing out the converse of what he had just stated as to how one can become a conspirator to the commission of an offense. Some cases of this Court since then have, however, turned what Judge Harper stated into a rule of law that when raised by the evidence an instruction on the theory of independent impulse must be given. See the cases cited in the majority opinion. Judge Clinton’s majority opinion for the Court continues to perpetrate the myth that independent act or independent impulse is a defense to an accusation.

When independent impulse is injected into the case, it merely negates one or more elements of the offense. Previously, before the theory of independent impulse could be invoked and applied to a case, the facts had to first establish (1) that the defendant entered into an agreement with one or more other persons to commit some unlawful act, and then establish (2) that in carrying out the commission of that act one of the parties to the agreement, other than the defendant, committed another unlawful act that played no part in the original conspiracy. In sum, one of the conspirators in the course of committing the original conspiracy deviated from what he agreed to do and, unknown to the defendant, committed an independent unlawful act. This theory, in principle, is very similar to the doctrine of frolic and detour that is found in the law of torts. See Harper, James and Gray, 5 The Law of Torts (1986 edition), Section 26.8. However, this is merely negating an element of the offense.

*519 Judge Clinton states the following: “[S]hould the evidence raise a question whether the offense actually committed was perpetrated in furtherance of the object felony, or was one which should have been anticipated by the accused, a timely requested affirmative instruction on the theory of independent impulse ought to be submitted to the jury.” I disagree.

Why, as a matter of law, should the accused ever be entitled to a negating type instruction, such as on the theory of independent act or impulse of another, if the trial judge has properly charged the jury on what it must find before it can return á verdict of guilty, and has also instructed the jury that if it has a reasonable doubt thereof it should acquit the accused? I would answer the question in the negative.

Therefore, I concur only in the result that the majority opinion reaches, that the court of appeals erred in holding that the trial judge erred in refusing the appellant’s requested instruction on the theory of independent impulse.

. This is how the trial judge characterized the other party to the offense.