Brian Ellis Patrick v. State ( 2007 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-06-00078-CR ______________________________



BRIAN ELLIS PATRICK, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 354th Judicial District Court Hunt County, Texas Trial Court No. 23162

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

When a heated argument over a dog turned to physical violence, James Ray Prothro (James) ⁽¹⁾ died and Brian Ellis Patrick (Brian), the person James had wrongfully ⁽²⁾ accused of giving away his dog, was sent to prison for a first-degree felony. This appeal concerns the punishment given to Brian, who admittedly killed James. ⁽³⁾ We affirm the trial court's judgment because the evidence is factually sufficient to support the trial court's finding that Brian did not act with sudden passion arising from adequate cause.

In a factual sufficiency review, ⁽⁴⁾ we view all the evidence in a neutral light and determine whether the evidence supporting the verdict is so weak that the fact-finder's verdict is clearly wrong and manifestly unjust or whether the great weight and preponderance of the evidence is contrary to the verdict. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006); see also Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). It is the fact-finder's job to judge the credibility of the witnesses and the weight to be given their testimony, and the fact-finder "may resolve or reconcile conflicts in the testimony, accepting or rejecting such portions thereof as it sees fit." Banks v. State, 510 S.W.2d 592 (Tex. Crim. App. 1974); see also Scott v. State, 814 S.W.2d 517, 518-19 (Tex. App.--Houston [14th Dist.] 1991, pet. ref'd). When evidence both supports and conflicts with the verdict, we must assume that the fact-finder resolved the conflict in favor of the verdict. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993); see also Marshall, 2006 Tex. Crim. App. LEXIS 2444, at *15 ("our factual-sufficiency jurisprudence still requires an appellate court to afford 'due deference' to the jury's determinations"). Again, our role is not to "find" facts; rather, it is to determine whether the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust. Ballard v. State, 161 S.W.3d 269, 277 (Tex. App.--Texarkana 2005), aff'd, 193 S.W.3d 916 (Tex. Crim. App. 2006) ("trial court, acting as finder of fact in the face of conflicting evidence, was authorized to believe or disbelieve any portion of the evidence").

If a convicted killer proves by a preponderance of the evidence that he or she "caused the death under the immediate influence of sudden passion arising from an adequate cause," then the applicable punishment range for the offense drops from that provided for a first-degree felony to the range provided for a second-degree felony. Tex. Penal Code Ann. § 19.02(d). The Legislature has defined "sudden passion" to mean "passion directly caused and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation." Tex. Penal Code Ann. § 19.02(a)(2). "Adequate cause" means "cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection." Tex. Penal Code Ann. § 19.02(a)(1).

In this case, there is conflicting evidence on the issue of sudden passion.

Detective Christopher Vaughn (Vaughn) of the Commerce Police Department arrived at the scene shortly after the shooting occurred and was able to interview several of the witnesses. ⁽⁵⁾ Many of these witnesses indicated Brian and James had been arguing on the north side of James' house June 30, 2005. During that time, James had threatened Brian by waving a shovel at him. At one point, Angela (James' wife) intervened, took the shovel away from James, and told Brian to leave the premises. Brian, however, did not leave.

A few minutes later, James threw a ball-peen hammer at Brian (which Vaughn testified could have injured or killed Brian, had he not been able to duck out of the way). Now weaponless, James charged Brian, who drew his gun, fired two warning shots into the ground, and then fired a third shot into James' shoulder after James did not heed the prior warning shots.

According to the testimony presented, James did not usually carry a gun. Evidence indicated neither that James had possession of a firearm on the day in question, nor that police found any firearm in James' possession following his death. Brian himself even admitted at trial that James did not have a gun or other weapon at the time of the shooting. Accordingly, the evidence in this case would not support a claim that Brian used deadly force in self-defense. See Tex. Penal Code Ann. § 9.31(a) (Vernon 2003). Brian also testified he had not felt the need to use deadly force in response to either having a hammer thrown at him or a shovel waived menacingly in his direction. See id. (actor must reasonably believe force is "immediately necessary").

Brian testified he shot James because he could not retreat further and because he feared James would take the gun away and use it. Brian also told the trial court that he fired the third (and fatal) shot as he tripped and fell backward, with James still advancing aggressively. Such testimony suggests the bullet would have entered James' shoulder from an angle below the point of entry and then traveled upward through the shoulder. To the contrary, the autopsy report indicated the fatal wound was fired with the gun located above, with the bullet then traveling in a downward direction into James' shoulder.

Angela had earlier testified that Brian could have previously left the premises and walked to his house (which was next door) after James had thrown the hammer. According to Angela's continued testimony, she told Brian to leave the area shortly after the initial verbal spat between James and Brian, but Brian had failed to heed Angela's advice.

This evidence suggests that the murder was not premeditated, but was instead the product of impulsive conduct. But the contradictory evidence presented the trial court with a factual issue regarding whether the killing was done under "sudden passion" prompted by "adequate cause." In this case, the trial court answered that question in the negative.

The trial court, acting as the fact-finder, was in the best position to judge witness credibility. This fact is key, because Brian's sudden-passion claim rises or falls on whether the trial court believed critical testimony supporting that claim. First, the trial court had before it the results of the autopsy report, which clearly contradicted that part of Brian's testimony in which he claimed he shot from a position below James, upward into James' chest. That conflict could have undoubtedly diminished the trial court's belief of Brian's other testimony. Second, the trial court could have given no credence to the accused's testimony that he believed he was unable to retreat further and that James would have taken the gun away and used it against the accused. Third, the trial court heard Angela's testimony that Brian had been told to leave the area, had been given an opportunity to do so, and had failed to heed that warning. This testimony suggests Brian had been given an opportunity to pause and reflect on how to alleviate the tense situation by leaving the area, but he instead chose to remain and continue the confrontation. Fourth, the evidence is unequivocal that James did not have a firearm and that it was Brian who introduced this deadly weapon into the fracas. The trial court could have reasonably concluded that had Brian not been illegally carrying the weapon, ⁽⁶⁾ that had Brian left James' property in accordance with the instructions of James' wife, or that had Brian not himself drawn the weapon from its hidden location in his pants and thereby introduced the gun into the altercation, then James might not have been killed. Fifth, the trial court could also have reasonably concluded, based on its evaluation of witness credibility and resolution of evidentiary conflicts, that James' mere act of angrily charging toward Brian--at a time when all witnesses agreed that James was without any type of weapon--did not provide Brian with adequate cause to use the gun. And, finally, the trial court could have reasonably concluded Brian, amidst the chaos of the shooting, did have a moment to coolly deliberate on his conduct and its consequences because Brian was able to articulate at trial the distinct rationalization that went through his mind before firing the gun a third time, testimony that at least suggested Brian was capable of engaging in a deliberate assessment of his conduct just before firing the gun a third time. In sum, from the evidence presented, the trial court could have reasonably concluded that James' act of merely advancing angrily toward Brian was insufficient to justify the degree of "terror," "rage," or "resentment" required to justify Brian's response of deadly force.

This result is reasonable in light of Brian's own testimony that James' earlier threats with the shovel and hammer had evoked no feeling of need to then respond with deadly force. It logically follows that a "lesser" threat from James (via one which did not employ the use of a weapon such as a shovel or hammer) would not justify an "escalated" response from Brian (by using a deadly weapon) when those earlier threats had failed to evoke a similarly strong emotion from the accused.

Under this state of the evidence, the trial court's determination that Brian did not act with sudden passion provoked by adequate cause was supported by factually sufficient evidence, and the trial court's judgment is not clearly wrong or manifestly unjust. Cf. Johnson v. State, 815 S.W.2d 707, 711 (Tex. Crim. App. 1991) (affirming murder conviction; fact-finder could reject sudden passion claim if it found no provocative conduct, no adequate case, or that defendant acted deliberately rather than in moment "incapable of cool reflection"); Garza v. State, 878 S.W.2d 213, 216-19 (Tex. App.--Corpus Christi 1994, pet. ref'd) (holding there was sufficient evidence from which fact-finder could have concluded murder was not product of sudden passion arising out of adequate provocation); Scott, 814 S.W.2d at 519-20 (conducting legal sufficiency review of jury's

finding that appellant's homicidal conduct was not product of "sudden passion"; conviction affirmed). Accordingly, we overrule Brian's sole point of error and affirm the trial court's judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: January 24, 2007

Date Decided: January 26, 2007

Do Not Publish

1. There are several witnesses in this case that share last names. To avoid confusion, we will refer to the appellant and all non-police witnesses by their first names.

2. Unbeknownst to James, it was his wife who had given away his dog.

3. Brian pled "guilty" to killing James by shooting him with a firearm. See Tex. Penal Code Ann. § 19.02(a) (Vernon 2003). The issue of punishment was submitted to the trial court, and Brian argued he killed James while acting under sudden passion--an affirmative defense that, if proven by a preponderance of the evidence, lessens the applicable punishment range to that provided for a second-degree felony. See Tex. Penal Code Ann. § 19.02(d) (Vernon 2003). The trial court disagreed with Brian's sudden passion argument and sentenced him to twenty-five years' imprisonment, which is within the range provided for a first-degree felony and outside the range provided for a second-degree felony. Compare Tex. Penal Code Ann. § 12.32(a) (Vernon 2003) (first-degree punishable by life or not less than five nor more than ninety-nine years' imprisonment) with Tex. Penal Code Ann. § 12.33(a) (Vernon 2003) (second-degree punishable by not less than two nor more than twenty years' imprisonment). Brian now appeals, contending the evidence is factually insufficient to support the trial court's conclusion that he did not act with sudden passion.

4. "A factual-sufficiency review is 'barely distinguishable' from a Jackson v. Virginia legal sufficiency review." Marshall v. State, No. AP-75,048, 2006 Tex. Crim. App. LEXIS 2444, at *14 (Tex. Crim. App. Dec. 20, 2006).

5. Brian had already fled the scene after the shooting when Vaughn arrived. Vaughn did not interview Brian until a later point in time.

6. Brian was a convicted felon who had been released from prison less than two months before he shot James. Generally, a convicted felon may not possess a firearm before the fifth anniversary of his or her release from confinement or community supervision for the felony offense. See Tex. Penal Code Ann. § 46.04 (Vernon Supp. 2006). For more information regarding his appeal of the conviction   for   possessing   the   firearm,   see   our   opinion   in   Patrick   v.   State,   cause number 06-06-00079-CR.

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                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-10-00126-CV

                                                ______________________________

                 ROYAL IMPORTS, INC., D/B/A CROWN KIA, Appellant

                                                                V.

                                          COMPASS BANK, Appellee

                                       On Appeal from the County Court at Law No. 2

                                                             Gregg County, Texas

                                                   Trial Court No. 2009-1623-CCL2

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                      MEMORANDUM OPINION

            Royal Imports, Inc., d/b/a Crown Kia, the sole appellant in this case, has filed a motion seeking to dismiss its appeal.  Pursuant to Rule 42.1 of the Texas Rules of Appellate Procedure, the motion is granted. Tex. R. App. P. 42.1.

            We dismiss the appeal.

                                                                        Josh R. Morriss, III

                                                                        Chief Justice

Date Submitted:          April 11, 2011

Date Decided:             April 12, 2011