Sherwood Thomas Gobert v. State

Affirmed and Memorandum Opinion filed May 28, 2009 Affirmed and Memorandum Opinion filed May 28, 2009. In The Fourteenth Court of Appeals ____________ NO. 14-08-00370-CR ____________ SHERWOOD THOMAS GOBERT, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 351st District Court Harris County, Texas Trial Court Cause No. 1109292 M E M O R A N D U M   O P I N I O N A jury found appellant, Sherwood Thomas Gobert, guilty of murder and assessed his punishment at twenty-two years= confinement in the Institutional Division of the Texas Department of Criminal Justice. In two issues, appellant contends (1) the trial court committed reversible error when it refused to allow him to present evidence of his state of mind during the punishment phase, and (2) the evidence was factually insufficient to support the jury=s negative finding on the sudden passion issue. We affirm. I.  FACTUAL AND PROCEDURAL BACKGROUND In March 2007, appellant and his common-law wife, Nancy Gonzalez, had been together for six years and had a two-year old son, Isaiah. Although they had been separated for several months, they were making efforts to reconcile. Gonzalez and the complainant, Jason Wheeler, had known each other for approximately six years. In September 2006, appellant first met the complainant when he appeared at appellant=s apartment and verbally threatened him. Following the confrontation, Gonzalez told appellant that she and the complainant were friends. In December 2006, the complainant showed up at appellant=s apartment again with four other men. Two of the men climbed up to his balcony and began beating on his window while the complainant stood at the front door with a gun. In January 2007, appellant came home from work and found Gonzalez in her car with the complainant. Gonzalez believed that appellant was afraid of the complainant. She testified that the complainant did not approve of appellant, and she believed that appellant was probably jealous of her relationship with the complainant. According to appellant, he never suspected that Gonzalez and the complainant were romantically involved and was unaware that they spent time together. At trial, Gonzalez also denied ever dating the complainant.[1] On March 22, 2007, appellant had an argument with Gonzalez before he left for work at approximately 11:00 p.m.[2] Later, when he was unable to reach Gonzalez on the phone, appellant left work early and went home at approximately 3:00 a.m. Appellant testified that when he went to the apartment, he took his gun because of the high crime rate in the neighborhood and complainant=s previous threats. When he entered the bedroom, appellant saw a man in bed with Gonzalez and their son. He repeatedly testified that he was not angry or upset when he discovered that it was the complainant, but rather hurt and confused. According to appellant, when the complainant jumped out of the bed and came toward him, he fired a warning shot. Appellant testified that when the complainant then made an aggressive move toward him, he shot him. Appellant went to the living room and put the gun in his mouth but did not pull the trigger because he saw his son looking at him as Gonzalez carried him out of the apartment. At the conclusion of trial, the trial court submitted the jury charge which included an instruction on self-defense. The jury found appellant guilty of murder and assessed his punishment at twenty-two years= confinement. Appellant timely filed this appeal. II.  ANALYSIS In his first issue, appellant contends the trial court committed reversible error when it excluded certain testimony regarding his state of mind aimed at supporting the special issue of sudden passion in the punishment phase of the trial. We begin by considering whether appellant properly preserved this argument for our review. To preserve an issue for appeal premised on the trial court=s exclusion of evidence, the proponent must object, obtain a ruling from the trial court (or object to the trial court=s refusal to rule), and make an offer of proof. Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(2); Roberts v. State, 220 S.W.3d 521, 532 (Tex. Crim. App. 2007). Error may not be predicated upon a ruling that excludes evidence unless a substantial right of a party is affected and the substance of the evidence was made known to the court by the offer of proof, or was apparent from the context within which the questions were asked. Tex. R. Evid. 103(a)(2); Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998). To adequately and effectively preserve error, an offer of proof must show the nature of the evidence specifically enough so that the reviewing court can determine its admissibility. In re N.R.C., 94 S.W.3d 799, 806 (Tex. App.CHouston [14th Dist.] 2002, pet. denied). Rather than mandating formal proof, however, the Rules require only a Ashort, factual recitation of what the testimony would show is sufficient >evidence= to preserve an issue for appeal.@ Id. Upon making such an offer, defense counsel must describe the actual content of the testimony and not merely comment on the reasons for it. Love v. State, 861 S.W.2d 899, 900‑01 (Tex. Crim. App. 1993); In re N.R.C., 94 S.W.3d at 806. During the punishment phase, defense counsel attempted to elicit testimony from appellant concerning his state of mind when he shot the complainant. After the trial court sustained the prosecutor=s objections to the relevance of the testimony, the following exchange occurred at the bench: Defense Counsel: Judge, at this point, I=ve got to get into the evidence all about what he was thinking at the time to show sudden passion or possible sudden passion as it relates to this. It doesn=t have to be just at the guilt/innocence phase. It can also B The Court: You=ve already asked him all this stuff. Defense Counsel: Judge, if you=re telling me that I have a right to a charge on that, then I=m fine with B The Court: I=m not saying one way or another. Defense Counsel: Then I need to be able to get through and get to it. I=ve got to ask these questions unless the Court has already said that I=ve covered that. I don=t have any other option. The Court: You=ve already asked him all this stuff. Defense Counsel: Well, Judge, again, I just want to clarify. Your charge does not have sudden passion and I want to make sure I have the opportunity, as the law allows me, to seek the evidence during the punishment phase. I don=t have to go and say that we are going by whatever happened in the guilt-innocence. I can do it right now. Prosecutor: Judge, unless he=s going to admit to purgering [sic] himself, he got on the stand saying he wasn=t upset, didn=t think they were having an affair, he was only worried about defending himself. So, unless he=s going to get up there and admit to perjury in the case-in-chief, I don=t see how he can ever get B Defense Counsel: I haven=t B The Court: Sudden passion requires an intentional killing. Defense Counsel: I didn=t understand you. The Court: In order to get to sudden passion, they have to intentionally kill somebody. Defense Counsel: He=s been convicted of it. The Court: He=s denied it. Defense Counsel: Well, what a jury B or what an appeals court may find in terms of what we do here on punishment in terms of establishing sudden passion versus what he felt prior to that, we can have alternative theories. You=re telling me I can=t have an alternative theory? The Court: I=m saying if you can=t think of a new question to ask B you=ve already asked what he was thinking all the way B every step of the way through this. Defense Counsel: I=ll ask another question, but that=s where I=m going. The Court: Well, I understand that, but you just can=t ask the same question you=ve already asked. It=s already in front of the jury. There is no indication in the record that defense counsel either objected to the trial=s court=s refusal to allow him to elicit the testimony in question or secured an adverse ruling regarding the admissibility of such evidence. Further, to preserve error, the proponent must make an offer of proof conveying the substance of the proffered evidence. See Tex. R. Evid. 103(a)(2); Roberts, 220 S.W.3d at 532. Here, defense counsel did not provide the trial judge with a concise statement regarding the content of the testimony he proposed to elicit from appellant; instead, he merely informed the trial judge of his reason for asking the questions. Appellant conceded as much in his brief, stating that A[a]fter this exchange, counsel for the appellant basically dropped his attempt to elicit testimony that would have supported the >sudden passion= issue.@ As such, appellant failed to preserve error. Issue one is overruled.[3] In his second issue, appellant contends the evidence is factually insufficient to support the jury=s negative finding on the sudden passion issue. He argues that the facts of this case constitute a Atextbook case@ of sudden passion and that the jury=s finding was clearly wrong and unjust and against the great weight and preponderance of the evidence. Murder is a first degree felony. Tex. Penal Code Ann. ' 19.02(c) (Vernon 2003). However, A[a]t the punishment stage of trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause.@ Id. ' 19.02(d). A>Sudden passion= means passion directly caused by and arising out of provocation by the individual killed ... which passion arises at the time of the offense and is not solely the result of former provocation.@ Id. ' 19.02(a)(2). A>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.@ Id. ' 19.02(a)(1). If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is reduced to a second degree felony. Id. ' 19.02(d). In conducting a factual sufficiency review of the jury=s determination, we do not view the evidence Ain the light most favorable to the prosecution.@ Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Velazquez v. State, 222 S.W.3d 551, 554 (Tex. App.CHouston [14th Dist.] 2007, no pet.). Rather, we look at all evidence in a neutral light and will reverse a conviction only if (1) the evidence of guilt is so weak that the jury=s verdict seems clearly wrong and manifestly unjust, or (2) considering conflicting evidence, the jury=s verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414B15. However, it is not enough that we harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence. Id. at 417. We cannot conclude that a conviction is Aclearly wrong@ or Amanifestly unjust@ simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Id. Nor can we declare that a conflict in the evidence justifies a new trial simply because we may disagree with the jury=s resolution of that conflict. Id. Rather, before ordering a new trial, we must first be able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury=s verdict. Id. Our evaluation should not intrude upon the fact‑finder=s role as the sole judge of the weight and credibility given to the evidence and any witness=s testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In conducting our review, we must also discuss the evidence appellant claims is the most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). In support of his position that the evidence does not support the jury=s negative finding on the issue of sudden passion, appellant relies on the following evidence: (1) after worrying about his argument with Gonzalez earlier that evening, appellant came home to find the complainant in bed with Gonzalez and their son; (2) appellant suspected that Gonzalez and the complainant had an affair; (3) the complainant had threatened and humiliated appellant in the past; and (4) after shooting the complainant, appellant put the gun in his own mouth but changed his mind after seeing his son=s face. Gonzalez, however, testified that appellant was jealous of her relationship with the complainant prior to the shooting. Further, as appellant acknowledges, the incidents during which the complainant threatened him also occurred prior to the night in question. Sudden passion must arise at the time of the offense and cannot result solely from former provocation. Hernandez v. State, 127 S.W.3d 206, 213 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d). Moreover, appellant=s assertion that he suspected that Gonzalez had an affair with the complainant is contradicted by his own testimony that he never suspected Gonzalez and the complainant were romantically involved. At trial, appellant argued that he shot the complainant because he felt threatened and was in fear for his life. However, fear, standing alone, does not raise the issue of sudden passion. Smith v. State, 721 S.W.2d 844, 854 (Tex. Crim. App. 1986). Even an individual who fears for his life may nevertheless cooly and deliberately kill his assailant. See Fry v. State, 915 S.W.2d 554, 559 (Tex. App.CHouston [1st Dist.] 1995, no pet.). Further, appellant repeatedly testified that he was not angry or upset when he discovered the complainant in bed with Gonzalez, but was instead hurt and confused. This evidence does not evince sudden passion. Additionally, even if the trial court had permitted appellant to testify in support of a sudden passion defense, such testimony would have differed substantially from his guilt-innocence phase testimony and the jury could have disbelieved him. See Velazquez, 222 S.W.3d at 555 (concluding appellant=s statement to police that differed substantially from his punishment phase testimony gave jury reason to disbelieve appellant); Hernandez, 127 S.W.3d at 214 (noting Aappellant=s changing story about the circumstances of the killing@ gave jury reason to reject defendant=s claims of sudden passion). Based on a neutral review of all the evidence, we find the evidence supporting the jury=s negative finding on the sudden passion issue is not so weak as to render the verdict manifestly unjust or against the great weight and preponderance of the evidence. We conclude the evidence is factually sufficient to support the verdict. See Watson, 204 S.W.3d at 414B15. We overrule appellant=s second issue. III.  CONCLUSION We affirm the judgment of the trial court. /s/ John S. Anderson Justice Panel consists of Justices Hedges, Anderson, and Seymore. Do Not Publish C Tex. R. App. P. 47.2(b). [1] However, in her written statement to police, Gonzalez stated that she began dating the complainant while going through her separation from appellant. [2] As a direct care staff member at Shelton Harbor Residential Treatment Center, appellant was responsible for supervising children between the ages of 12 and 18. He worked the graveyard shift from 12:00 a.m. to 7:00 a.m. [3] Appellant also argues that the trial court=s refusal to permit the testimony was error Aof a constitutional dimension@ because it deprived him of his right to present a complete defense as guaranteed by the Compulsory Clause of the Sixth Amendment, the Fourteenth Amendment, and under Article I, sections 9, 10, and 19 of the Texas Constitution. A complaint on appeal must correspond with the objection made at trial. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Rothstein v. State, 267 S.W.3d 366, 373B74 (Tex. App.CHouston [14th Dist.] 2008, pet. ref=d). A reviewing court will not consider errors, even of constitutional magnitude, not called to the trial court=s attention. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). Here, defense counsel argued at trial that his inquiry into appellant=s state of mind at the time of the shooting was relevant to support a sudden passion instruction. However, he did not argue any federal or state constitutional claims. Thus, even if the trial court had erred in excluding the testimonyCwhich we conclude it did notCappellant still failed to preserve error on this issue because his claim at trial varies from his complaint on appeal. See id. (concluding appellant failed to preserve error where his complaint on appeal asserting constitutional violations did not comport with his trial objection based on state evidentiary rule); see also Collins v. State, Nos. 12-03-00197-CR, 12-03B00198-CR, 2004 WL 1192609, at *2 (Tex. App.CTyler May 28, 2004, no pet.) (mem. op., not designated for publication) (concluding appellant=s complaint on appeal that trial court erroneously excluded evidence supporting jury instruction on sudden passion during punishment phase in violation of his due process rights under United States and Texas Constitutions was not preserved for review where appellant failed to argue federal or state constitutional claims at trial).