BUTLER v. STATE, 05-04-00415-CR (Tex.App.-Dallas [5th Dist.] 2005)

Opinion by Justice RICHTER.

Frank Butler appeals his jury conviction for the murder of Diane Morrison. In eight issues, he complains of (a) the legal and factual sufficiency of the evidence to support the jury's rejection of his self-defense claim, (b) the exclusion of testimony that Morrison was addicted to crack cocaine, (c) the admission of a picture of Morrison taken after the autopsy had begun, (d) the denial of his motion to suppress evidence of items seized from his car, and (e) the denial of his requests for instructions on the lesser-included offenses of involuntary manslaughter and aggravated assault. We affirm. Background Morrison's body was discovered on the side of a road in a somewhat secluded area. Morrison was partially clothed, had multiple stab wounds, and was lying face down in a pool of blood. No weapons were found at the scene, but police officers did discover a pager next to Morrison's body. The officers found the pager belonged to Butler from calls Butler's friends and family made to the pager, and he was arrested approximately seven weeks later in Oklahoma. At trial, several of Butler's friends testified that, around the time Morrison's body was discovered, Butler told them he had gotten into "some trouble" and had cuts on his hand and a "busted lip." These witnesses believed Butler had been "jumped" by a group of four or five individuals. Another of Butler's friends, Roque Pichardo, testified Butler told him he had been jumped by a group of individuals, had grabbed one of them, and started stabbing that person in the face with a screwdriver. According to Pichardo, Butler "just left the person there" and told him that this person "would not be missed because [she] was a bum." Butler also repeatedly told Pichardo that he had killed this person. Butler seemed to be "bragging about it" but also seemed "concerned about it," wanting to "get out of here . . . move." Butler's ex-girlfriend, Jessica Aguiar, testified that Butler called her after the officers began investigating him and told her he would be staying with family in Oklahoma. Detective Rick Berry, the investigating officer, testified about how calls to the pager led to Butler as a suspect. One of the numbers that appeared on the pager was Butler's grandmother. He met with her and learned that Butler was staying nearby at a friend's house. The grandmother showed Berry the house and pointed out Butler's car. After concluding his meeting with the grandmother, Berry went to the friend's house and peaked through the windows of Butler's car. Lying on the front seat in plain view was a pocket knife. Although, at that point, he did not yet know with certainty that the pager found next to Morrison's body belonged to Butler, Berry had Butler's car towed to the city auto pound. Berry explained he had the car towed because he thought the knife might have been used in the stabbing and killing of Morrison and wanted to protect potential evidence. Berry also testified that he knocked on the door of the friend's house hoping to obtain consent, but no one answered. The car was not searched, however, until two weeks later, after a search warrant had been obtained. During that search, several items were found including Butler's work badge from an Oklahoma hotel and clothes. DNA testing was performed on the clothes and based on those results as well as the conversations Berry had with people who had paged Butler, an arrest warrant was issued for Butler. Detective Dovie Pepsis testified she assisted Berry with the search of Butler's car and found several other items in addition to the clothes and work badge, including four screwdrivers, the pocket knife, and a woman's purse. Additionally, a portion of the driver's seat and the car's headliner were removed because of "questionable stains." Doctor Sheila Spotswood, a Dallas County medical examiner, testified that her office performed the autopsy on Morrison. Morrison had been stabbed forty-seven times, thirteen of which were to the back, and her body had begun decomposing. The stab wounds ranged in depth from a quarter of an inch to five inches and appeared to be inflicted by a screwdriver and a knife, both of which in their manner of use were capable of causing death or serious bodily injury. Morrison had wounds throughout her head, upper trunk and back, face, upper extremities, and right hand. Some of the wounds "penetrated through her skull into the brain," one perforated her lung, and at least four of the wounds individually were life threatening. The wounds to the hand were "defensive-type injuries . . . suggest[ing] [Morrison was] warding off blows or trying to grab a weapon." Although Morrison died of multiple sharp-force injuries, it could not be determined if any of the stab wounds alone caused her death. Spotswood also testified that toxicology testing was performed and showed cocaine in Morrison's system. Spotswood testified generally about the effects of cocaine on individuals, such as increasing aggression, but stated she could not determine what effect cocaine had on Morrison. According to Spotswood, Morrison was five foot seven and weighed 144 pounds. Melissa Sweetland, a forensic biologist with the Southwestern Institute of Forensic Services, testified that of the various items removed from Butler's car, the portion of the driver's seat and headliner, a t-shirt, and shorts tested "presumptive positive for blood" and contained Butler's DNA. Morrison's DNA was also found on one of the pairs of shorts. Testifying in his defense, Butler admitted stabbing Morrison but denied intentionally causing her death. He explained that he picked up Morrison at a street corner, thinking she was a prostitute. When he parked his car to receive "his services," Morrison placed a knife on his genitals and demanded his money and pager. Morrison then hit him on his mouth with the butt of the knife and then began swinging the knife "wildly and rapidly." He testified that because he was partially undressed with his pants at his knees, he could not "just flee." Instead, he picked up a screwdriver he had in his car and started to defend himself. The two struggled but then he managed to grab her right hand, where the knife was, and started striking her with the screwdriver. He testified that he was "not attempting to kill her or nothing" but she "just kept coming at [him]" and was threatening to kill him if he did not turn his money and pager over to her. At some point, the car door opened and the two fell out of the car. Morrison was on her back, "moaning and moving," but no longer fighting him. At that point, he got into his car and drove away. Butler testified he was "traumatized . . . horrified about what had happened" and went to his friend's house. He told his friend that he had gotten into a fight after an attempted robbery and "was panicking." He changed his clothes, got back in his car, started crying, and hit the car window with his right hand, "hurting" it. Butler testified further that he "panicked" when he found out that the police had taken his car, and left for Oklahoma. On cross-examination, Butler reiterated that he did not intend to kill Morrison and stated that he did not even intend to hurt her. He was simply trying to defend himself and it was necessary for him to stab her as many times as he did because she "kept coming at him." He did not call the police to get help for Morrison because he was "scared" and "could not believe what had happened." Butler also testified that, after he had changed his clothes and left his friend's house, another friend helped him "clean-out" his car and dispose of his bloody clothes. According to Butler, Morrison indicated to him that she was addicted to cocaine. Butler also testified he is six foot-one and weighs "230, 240" pounds. The jury was instructed to convict Butler of murder if it found beyond a reasonable doubt either of two theories — (1) that Butler intentionally or knowingly caused Morrison's death by stabbing her with a screwdriver or knife; or, (2) intended to cause serious bodily injury to Morrison and caused her death by stabbing her with a screwdriver or knife, an act clearly dangerous to human life. See Tex. Pen. Code Ann. § 19.02(b)(1), (2) (Vernon 2003). The jury was also instructed to acquit Butler if it found, or had a reasonable doubt that, (a) Butler killed Morrison but reasonably believed the force was immediately necessary to protect himself against Morrison's use or attempted use of unlawful force and (b) a reasonable person in his situation would not have retreated. See id. §§ 9.31, 9.32; Riddle v. State, 888 S.W.2d 1, 6 (Tex.Crim.App. 1994). The jury returned a general verdict, finding Butler guilty of murder as charged in the indictment and impliedly rejecting Butler's self-defense claim. Sufficiency of the Evidence In his first two issues, Butler argues the evidence is legally and factually insufficient to support the jury's rejection of his self-defense claim. In making this argument, Butler relies on his undisputed testimony that Morrison placed a knife on his genitals and threatened to kill him. He also relies on the testimony that Morrison had cocaine in her system. Butler maintains that his testimony that Morrison kept attacking him can be explained by "her cocaine intoxication" and argues that because of Morrison's actions, his actions were reasonable and justifiable. We disagree. In reviewing a challenge to the legal sufficiency of the evidence to support the rejection of a self-defense claim, we view the evidence in the light most favorable to the prosecution to determine if any rational trier of fact would have found beyond a reasonable doubt the essential elements of the offense and against the appellant's self-defense claim. Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). In reviewing a challenge to the factual sufficiency of the evidence to support the rejection of self-defense, we review all the evidence in a neutral light and ask whether the State's evidence taken alone is too weak to support the finding of guilt beyond a reasonable doubt and whether the evidence supporting the defense is strong enough that the rejection of the claim does not meet the beyond-the-reasonable doubt standard. See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004); Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). In conducting these reviews, we bear in mind that the fact finder may draw reasonable inferences, is the sole judge of the weight of the evidence and credibility of the witnesses, and may accept or reject any or all of the evidence produced by the parties. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003); Johnson v. State, 959 S.W.2d 284, 287 (Tex.App.-Dallas 1997, pet. ref'd). When, as here, alternate theories of committing the same offense are submitted, we will uphold the conviction if the evidence is sufficient to support a finding of guilt under either theory. Swearingen, 101 S.W.3d at 95. Here, the record contains evidence tending to both support and undermine the verdict of guilt. In support of the verdict is the medical examiner's testimony that Morrison died of multiple sharp-force injuries, forty-seven to be exact. Of those stab wounds, some penetrated into the brain, one perforated her lung, and at least four individually were life threatening. Additionally, Morrison had defensive-type injuries to her hand and thirteen wounds in her back. The record further reflects Butler was about a hundred pounds heavier and six inches taller than Morrison and at some point during the struggle was able to grab Morrison's right hand in which she held the knife she swung at Butler. The record also reflects Butler left Morrison bleeding profusely face down in a secluded area, did not contact the police, bragged to a friend about the murder, and cleaned out his car and disposed of evidence with a friend. And, although Butler testified Morrison repeatedly "came at him" with a knife, no knife was found at the scene and Butler testified that the only injury he received was the injury to his lip. Evidence undermining the verdict of guilt consists of Butler's testimony that Morrison placed a knife against his genitals and threatened to kill him if he did not turn over his money and pager. Additionally, Morrison led Butler to believe she was a cocaine addict, cocaine was found in her system, medical testimony showed cocaine could increase aggression, and Butler's friends testified he had a "busted lip" around the time Morrison's body was discovered-consistent with Butler's testimony that Morrison hit his mouth with the butt of the knife. By returning a verdict of guilty, the jury necessarily resolved the conflicts between the evidence supporting guilt and the evidence undermining guilt in favor of the State. As the sole judge of the witnesses' credibility and weight to give the testimony, the jury was free to do that, and we will not disturb that finding. Viewing the evidence under the appropriate standards, we conclude the evidence was legally and factually sufficient to support the jury's finding beyond a reasonable doubt that Butler either knowingly and intentionally caused Morrison's death or intended to cause serious bodily injury and caused her death by stabbing her with a knife and screwdriver. See Grider v. State, 139 S.W.3d 37, 43 (Tex.App.-Texarkana 2004, no pet.) (jury could reasonably infer necessary intent in murder case where defendant stabbed victim over seventy times); Gutierrez v. State, 85 S.W.3d 446, 450-51 (Tex.App.-Austin 2002, pet. ref'd) (jury could reasonably infer culpable intent or knowledge from defendant's stabbing victim in chest, an act clearly dangerous to human life); Nickerson v. State, 69 S.W.3d 661, 667 (Tex.App.-Waco 2002, pet. ref'd) (jury could infer intent to cause serious bodily injury from defendant's stabbing victim and laying atop her, based on the nature of stab wounds and other injuries on the victim, the victim's body position, and the defendant's size); Lam v. State, 25 S.W.3d 233, 238 (Tex.App.-San Antonio 2000, no pet.) (jury could reasonably infer intent to cause serious bodily injury to first victim from defendant's charging at her, pushing her to wall, and beating her until she collapsed and could infer intent to cause second victim's death from defendant's stabbing him in chest). We also conclude the evidence was legally and factually sufficient to support the jury's implicit finding that the force Butler used was not reasonably necessary to protect against Morrison's use or attempted use of force and a person in his situation would have retreated. See Gutierrez, 85 S.W.3d at 450-51 (jury could reasonably reject defendant's self-defense claim where defendant admitted stabbing victim and victim was not in possession of a weapon, had defensive wounds on hands, and stab wounds in his back); Vasquez v. State, 2 S.W.3d 355, 358-59 (Tex.App.-San Antonio 1999, pet. ref'd) (jury could reasonably find force used by defendant not reasonably necessary to protect against victim's use or attempted use of force where victim suffered fifty-two stab wounds to the head, face, neck, chest, abdomen, and back, and defensive wounds on hands and arms and, knife victim allegedly used against defendant not recovered at scene). We resolve Butler's first and second issues against him. Motion to Suppress In his third and fourth issues, Butler asserts the trial judge erred in denying his motion to suppress the evidence seized from his car. Butler maintains that the initial seizure of the car, occurring before the investigating officer knew with certainty that the pager found next to Morrison's body was Butler's and two weeks before a search warrant was obtained, violated his rights under the Fourth Amendment to the United States Constitution and Article I, section 9 of the Texas Constitution because no probable cause existed for the seizure. See U.S. Const. amend. IV; Tex. Const. art. I, § 9. Butler also maintains that the subsequent search of the car violated his constitutional rights because the initial seizure was illegal and because no probable cause existed to justify the search. Because testing on some of the items found during the search linked Butler to the murder, he maintains the erroneous denial of his suppression motion was "clearly" harmful. Assuming without deciding the judge erred in overruling Butler's motion, we conclude Butler was not harmed. Because the erroneous denial of a motion to suppress based on Fourth Amendment rights constitutes constitutional error, we must reverse unless we determine beyond a reasonable doubt that the error did not contribute to the conviction. See Johnson v. State, 161 S.W.3d 176, 186 (Tex.App.-Texarkana 2005, pet. filed); McQuarters v. State, 58 S.W.3d 250, 258 (Tex.App.-Fort Worth 2001, pet. ref'd). In applying this standard, our primary question is what effect the error had, or reasonably may have had, on the jury's decision. McQuarters, 58 S.W.3d at 258. Here, the items seized from the car linked Butler to the murder, but identity was not at issue. The sole issue was whether the stabbing was in self-defense, and the items seized provided nothing towards that issue. See Johnson, 161 S.W.3d at 186-87 (error in denying motion to suppress shell casing found behind a chair harmless where only issue was whether shooting was in self-defense and casing provided "nothing other than speculation about location and orientation of gun when fatal shot fired"). Because we conclude any error in failing to suppress the items seized from the car had no effect on the jury's decision, we conclude the error was harmless. Accordingly, we resolve Butler's third and fourth issues against him. Lesser-Included Offenses In his fifth and sixth issues, Butler asserts the trial judge should have instructed the jury on involuntary manslaughter and aggravated assault, both of which may be proven by reckless conduct. See Tex. Pen. Code Ann. §§ 19.04(a), 22.01(a)(1), 22.02(a) (Vernon 2003 Supp. 2004-05). Butler maintains, under the Royster two-prong test, that both offenses are lesser-included offenses of murder, see Cardenas v. State, 30 S.W.3d 384, 392 (Tex.Crim.App. 2000), and because he testified that he did not intend to kill Morrison and his actions were reckless, if he was guilty, he was guilty only of one of those lesser offenses. See Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App. [Panel Op.] 1981) (op. on reh'g) (defendant entitled to jury instruction on lesser offense if proof of lesser offense is included within proof of charged offense and some evidence exists that if defendant is guilty, he is guilty only of lesser offense). We have already concluded, however, that even though Butler testified he did not intend to kill Morrison, his actions showed intentional conduct. Accordingly, we conclude that he could not be found guilty only of a lesser-included offense and the judge did not err in failing to include the requested instructions. See Cardenas, 30 S.W.3d at 393 (defendant in capital murder trial not entitled to instructions on lesser-included offenses of manslaughter, criminally negligent homicide, and aggravated assault where evidence showed he acted with intent to kill). We resolve Butler's fifth and sixth issues against him. Evidentiary Rulings In his seventh and eighth points of error, Butler complains of certain evidentiary rulings. Specifically, he complains in his seventh point that the judge erred in excluding testimony that Morrison was addicted to crack cocaine. Butler sought to elicit this testimony from Morrison's daughter and made an offer of proof for the record. Although the record does not reflect the basis for Butler's seeking the admission of this testimony and the State's reason for opposing it, Butler argues now that this testimony was relevant and material to his self-defense argument that Morrison, under the influence of crack cocaine, attacked him "in the way that she did." In his eighth point, he complains the judge erred in admitting a picture of Morrison taken after the autopsy had begun. This picture depicts the left side of the head with the skin pulled back and the surface of the skull exposed. Butler objected on the basis of relevance and unfair prejudice. In both issues, Butler reurges the complaints he raised at trial and argues he was harmed as a result. We review rulings on the admissibility of evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). We will find a trial court's ruling on the admissibility of evidence to be reversible error when the court acts without reference to any guiding principles and appellant has been harmed. See Tex.R.App.P. 44.2; Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001); Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990). Because generally the erroneous admission or exclusion of evidence does not rise to the level of constitutional error, we look only to see if an appellant's substantial rights have been affected in determining whether an appellant has been harmed by such an evidence. See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997); Phelps v. State, 999 S.W.2d 512, 520 (Tex.App.-Eastland 1999, pet. ref'd). In making this determination, we consider the entire record, including the nature of the evidence supporting the verdict, and the character of the error and its relationship to other evidence. Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). We also may consider the parties' trial theories, the court's instructions to the jury, and the parties' closing arguments. Id. We will find the error to be harmless when the record provides us a "fair assurance that the error did not influence the jury, or had but a slight effect." Solomon, 49 S.W.3d at 365. We need not determine whether either of the complained-of rulings in this case was error because we conclude that neither affected Butler's substantial rights. As to the exclusion of testimony that Morrison was a cocaine addict, the record reflects the jury had other evidence from which it could find Morrison's use of cocaine caused her to act the way she did and forced Butler into a defensive position. That evidence consisted of Butler's testimony that Morrison indicated to him she was an addict and the medical examiner's testimony that toxicology results showed cocaine in Morrison's system and cocaine use can increase aggression. Given this evidence, we conclude any error in excluding the daughter's testimony did not influence the jury or had but a slight effect. We also conclude any error in admitting the picture of Morrison after the autopsy began did not influence the jury or had but a slight effect. That picture, though perhaps gruesome, was one of over fifty pictures admitted at trial, was referred to minimally, and was not mentioned at closing. Additionally, it had no bearing on the sole issue at trial-whether Butler acted in self-defense. We resolve Butler's seventh and eighth issues against him. We affirm the trial court's judgment.