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Wippert v. State

Texas Court of Appeals


April 29, 1998

STEPHEN SHANE WIPPERT, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE

On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F94-29284-VQ, F94-29254-TQ

Before Justices Morris, James, and BridgesOpinion by Justice Morris

The opinion of the court was delivered by: Joseph B. Morris, Justice

Affirmed as Modified and Opinion Filed April 29, 1998

In this case, Stephen Shane Wippert appeals his convictions for aggravated assault and murder. In two points of error, appellant complains the trial court erred in charging the jury on the laws of aggravated assault and murder before giving instructions on the law of self-defense. Specifically, appellant claims the law of self-defense should have been set forth before the murder and aggravated assault application paragraphs. Failure to instruct on the law of self-defense first, appellant argues, resulted in fundamental error because the jury may have considered the order in which the instructions were given as misplacing the burden of proof, thereby depriving appellant of a fair and impartial trial. The State raises a cross-point on appeal, asking us to reform the judgments to reflect that deadly weapon findings were made.

In reviewing a jury charge, we consider the charge as a whole and do not limit the review to parts of the charge considered in isolation. See Cotton v. State, 742 S.W.2d 871, 872 (Tex. App.--San Antonio 1987, pet. ref'd) (citing Selvage v. State, 680 S.W.2d 17, 20 (Tex. Crim. App. 1984)). Further, we presume the jury considered the entire charge and followed the court's instructions. See Cotton, 742 S.W.2d at 872 (citing Ainsworth v. State, 517 S.W.2d 274, 277 (Tex. Crim. App. 1975)).

The relevant portions of the aggravated assault jury charge were presented in the following order: (1) definitions of terms used in the aggravated assault application paragraph; (2) application paragraph for aggravated assault; (3) instructions, definitions, and application of self-defense law. The relevant portions of the murder jury charge were presented in the following order: (1) definitions of terms used in the murder application paragraph; (2) application paragraph for murder; (3) definitions of terms used in the lesser included offense of aggravated assault application paragraph; (4) application paragraph of the lesser included offense of aggravated assault; (5) instructions, definitions, and application of self-defense law.

In each charge, the instructions applying the law of murder and aggravated assault were followed immediately by instructions concerning self-defense. The instructions in these cases placed the burden on the State to prove beyond a reasonable doubt that appellant had not acted in self-defense. See Alvarado v. State, 821 S.W.2d 369, 374 (Tex. App.--Corpus Christi 1991, no pet.) (jury instructions applying the law of murder followed by instructions concerning the law of self-defense correctly placed burden on State to prove that defendant had not acted in self-defense); see also Cotton, 742 S.W.2d at 872 (instructions applying the law of murder and attempted murder followed, in a new paragraph, by instructions on the law of self-defense correctly placed burden of proof on State to show defendant had not acted in self-defense); Epley v. State, 704 S.W.2d 502, 505 (Tex. App.--Dallas 1986, pet. ref'd) (self-defense instruction that followed the instructions for murder, voluntary manslaughter, aggravated assault, involuntary manslaughter, and criminal negligent homicide adequately instructed jury to acquit if it had a reasonable doubt as to whether defendant acted in self-defense). Read as a whole, we conclude the charges instructed the jury to find appellant not guilty unless it found he had not acted in self-defense. See Alvarado, 821 S.W.2d at 374; Cotton, 742 S.W.2d at 872. The trial court adequately instructed the jury to acquit appellant if it had a reasonable doubt with respect to whether he acted in self-defense in each case. See Alvarado, 821 S.W.2d at 374; Cotton, 742 S.W.2d at 872; Epley, 704 S.W.2d at 505. Thus, we conclude the trial court did not err in placing the self-defense instructions after the aggravated assault instruction and after the murder instruction.

Moreover, appellant did not object to the jury charge. Therefore, assuming without deciding that a charging error occurred, relief is available only if the error resulted in egregious harm. See Hutch v. State, 922 S.W.2d 166, 170-71 (Tex. Crim. App. 1996). The record does not reflect egregious harm. See id. In voir dire examination, the panel learned that the State must carry the burden of proof to disprove the existence of self-defense. See Hafley v. State, 781 S.W.2d 642, 644-46 (Tex. App.--Dallas 1989, no pet.) (finding no egregious harm where witness testimony addressed the defensive issue, closing argument addressed the defensive issue, and the defensive issue was included in jury charge). During closing argument, the State emphasized the evidence that disproved the existence of self-defense. The charge stated that the burden of proof rested on the State. See id. If any error occurred, it was harmless and did not deprive appellant of a fair and impartial trial. See id.

Appellant also claims he was deprived of his right to due process under the Sixth and Fourteenth Amendments of the U.S. Constitution because the jury charges were ordered in a manner that may have resulted in the jury misplacing the burden of proof. Appellant's only authority for this assertion involves a Montana state law that constituted either a burden-shifting presumption or a conclusive presumption, either of which would deprive a defendant of his right to due process. See Sandstrom v. Montana, 442 U.S. 510, 524 (1979). Appellant presents no argument to support his due process complaint other than the arguments already discussed. We have already concluded the jury charges in these cases correctly placed the burden of proof on the State. See Alvarado, 821 S.W.2d at 374; Cotton, 742 S.W.2d at 872. Thus, we conclude there were no due process deprivations. Accordingly, we overrule appellant's two points of error.

In its cross-point of error, the State asks us to reform the judgments to include deadly weapon findings. Article 42.12, section 3g(a)(2) of the code of criminal procedure requires that upon an affirmative finding that a deadly weapon was used or exhibited, the court shall enter the finding in its judgment. See Tex. Code Crim. Proc. Ann. art. 42.12, Section 3g(a)(2) (Vernon Supp. 1998). The trial court has no discretion to do otherwise. See Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988). The indictments, upon which the jury returned the two guilty verdicts for the murder and the aggravated assault cases, included allegations of the use of a deadly weapon. The jury found appellant guilty of murder and aggravated assault as alleged in the indictments; thus, there were affirmative deadly weapon findings under article 42.12, section 3(g)(2). See Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.--Dallas 1991, pet. ref'd). Where a judgment fails to reflect the findings of the jury, the proper remedy is reformation of the judgment. See Asberry, 813 S.W.2d at 529-30. Accordingly, we sustain the State's cross-point. We modify the judgments to include deadly weapon findings. See id.; see also Tex. R. App. P. 43.2(b).

As modified, we affirm the trial court's judgments.

Do Not Publish

Tex. R. App. P. 47.3

960573F.U05

19980429


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