Affirmed and Opinion filed June 11, 2013.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00612-CR

                     DANIEL BRIAN ATKINS, Appellant
                                        V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 263rd District Court
                           Harris County, Texas
                       Trial Court Cause No. 1350588

                                OPINION


      In two issues, appellant Daniel Brian Atkins appeals his conviction for
capital murder, complaining that the evidence was legally insufficient to establish
the victim‘s identity and asserting that Penal Code sections 19.02(b) and 19.03
violate due process under the Fourteenth Amendment of the United States
Constitution. We affirm.
                                        Background

       On September 7, 2010, two officers received a call regarding the
disappearance of a trailer-home resident, Franklin McCown, who had not been
seen for four to five days. The officers entered the residence and found a man‘s
body lying on the floor. The victim had been stabbed multiple times, and there
were bloody footprints on the floor near his body. Atkins ultimately went to the
police station and confessed to stabbing his grandfather during the course of
stealing his wallet and handgun. Atkins was tried by jury and convicted of capital
murder. See Tex. Penal Code § 19.03. The trial court sentenced him to life
imprisonment without the possibility of parole.

       At trial, the State introduced a stipulation of evidence, signed by Atkins, that
identified McCown as the victim.1 Atkins‘ counsel also agreed to the stipulation.
The stipulation stated, ―[T]he complaining witness in the cause on trial is named
Franklin McCown, and . . . the person who is the subject of the autopsy report
evidence presented in this Cause is the same complaining witness named Franklin
McCown.‖         The stipulation additionally identified State‘s Exhibit Number 54
(picture of McCown‘s driver‘s license) as ―a photograph of the complainant,
Franklin McCown‖ and Exhibit Number 55 as an ―autopsy report of the
complainant, Franklin McCown.‖

       McCown‘s oldest daughter also testified at trial.2 She identified McCown
by a picture of his driver‘s license, which lists the address of the trailer home
where the victim was found and indicates McCown was 75 at the time of his death.
The daughter testified that after police found McCown, her brother called her to let

       1
         The State wanted to avoid introducing pictures of the victim for the family to identify
because the pictures were particularly gory due to the state of decomposition of the body.
       2
           McCown had three daughters and one son.

                                               2
her know her father had passed away. She and her middle sister made funeral
arrangements for their father and attended the funeral. She said her youngest sister
was Atkins‘ mother, which meant Atkins was McCown‘s grandson. She also
thought her father was 74 at the time of his death.

      A detective who had been at the scene of the murder also identified the
victim as ―Mr. McCown.‖ She testified Atkins purportedly had gone to Tennessee
for work around the time ―McCown was murdered.‖ Another officer involved
with the case also testified that he was involved ―in [the] investigation of the
capital murder of a gentleman named Franklin McCown.‖ The medical examiner
testified he performed an autopsy on McCown. The autopsy report also identified
the victim as McCown and lists the address of his residence as the home where the
victim was found. The report describes McCown as a ―75 year old Caucasian
male . . . found dead in his residence with multiple stab wounds.‖ This information
corroborated the information on the driver‘s license and the daughter‘s testimony
estimating her father was 74 when he died.

                                           Discussion

      In two issues, Atkins challenges the legal sufficiency of the evidence to
support his conviction and the constitutionality of the Penal Code sections pursuant
to which he was convicted. See Tex. Penal Code §§ 19.02(b), 19.03. We affirm.

      I.        Legal Sufficiency of Capital Murder Conviction

      In his first issue, Atkins argues the evidence was legally insufficient to
support his conviction because the State did not prove the identity of the victim.3
When reviewing sufficiency of the evidence, we view all of the evidence in the
light most favorable to the verdict and determine, based on that evidence and any

      3
          Atkins only challenges the sufficiency of the evidence regarding the victim‘s identity.

                                                 3
reasonable inferences therefrom, whether any rational factfinder could have found
the elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d
743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19
(1979)); see also Nava v. State, 379 S.W.3d 396, 403 (Tex. App.—Houston [14th
Dist.] 2012, pet. granted). We do not sit as thirteenth juror and may not substitute
our judgment for that of the factfinder by reevaluating the weight and credibility of
the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010); Nava,
379 S.W.3d at 403. Rather, we defer to the factfinder to fairly resolve conflicts in
testimony, weigh the evidence, and draw reasonable inferences from basic facts to
ultimate facts. Isassi, 330 S.W.3d at 638; Nava, 379 S.W.3d at 403. This standard
applies equally to both circumstantial and direct evidence. Isassi, 330 S.W.3d at
638; Nava, 379 S.W.3d at 403.            Each fact need not point directly and
independently to the appellant‘s guilt, as long as the cumulative effect of all
incriminating facts is sufficient to support the conviction. Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007); Nava, 379 S.W.3d at 403.

      We measure evidentiary sufficiency against the ―elements of the offense as
defined by the hypothetically correct jury charge for the case.‖ Fuller v. State, 73
S.W.3d 250, 252 (Tex. Crim. App. 2002). That is, ―one that accurately sets out the
law, is authorized by the indictment, does not unnecessarily increase the State‘s
burden of proof or unnecessarily restrict the State‘s theories of liability, and
adequately describes the particular offense for which the defendant was tried.‖
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). This standard
―ensures that a judgment of acquittal is reserved for those situations in which there
is an actual failure in the State‘s proof of the crime rather than a mere error in the
jury charge submitted.‖ Id. The hypothetically correct jury charge may include
elements that must be pleaded in the charging instrument under Texas procedural


                                          4
rules, such as the manner and means of an offense, but which lie outside of the
Texas Penal Code and are not ―substantive elements as defined by state law‖ for
purposes of a Jackson review. Adames v. State, 353 S.W.3d 854, 861 (Tex. Crim.
App. 2011). We apply the Jackson standard of review to the hypothetically correct
jury charge. Id.

       The State was required to prove that Atkins intentionally or knowingly
caused the death of an individual while in the course of committing a burglary.
Tex. Penal Code §§ 19.02(b), 19.03(a)(2). To measure evidentiary sufficiency
against the elements of the offense ―as defined by the hypothetically correct jury
charge for the case,‖ we must determine whether there was a material variance
between the indictment and the proof presented at trial. See Fuller, 73 S.W.3d at
252-53. We do this by ascertaining whether Atkins was deprived of notice of the
charges or could be subjected to being prosecuted later for the same offense. See
id. at 253.

       The indictment alleged that Atkins intentionally caused the death of Frank
McCown by stabbing him with a knife in the course of committing and attempting
to commit burglary. The State presented a stipulation at trial signed by Atkins that
identified McCown as the victim. Atkins argues the stipulation was defective and
thus could not prove the victim‘s identity because it did not comply with Texas
Code of Criminal Procedure article 1.15.        Tex. Code Crim. Proc. art. 1.15
(allowing defendant to waive jury trial and stipulate to evidence showing his guilt
if the defendant, among other things, consents in writing ―to waive the appearance,
confrontation, and cross-examination of witnesses‖); see also McClain v. State,
730 S.W.2d 739, 742 (Tex. Crim. App. 1987) (―[C]ompliance with the
requirements of the statute must be strictly followed before a stipulation can be
considered as evidence where the plea is before the court.‖) However, the State

                                         5
correctly argues article 1.15 does not apply, as here, when the defendant pleads
―not guilty‖ in front of a jury. See Tex. Code Crim. Proc. art. 1.15; see also
McClain, 730 S.W.2d at 742 n.1 (―[S]tipulations, oral or written, in criminal cases
where the plea of not guilty is entered before the jury do not have to comply with
Art. 1.15.‖).

      Atkins further contends the stipulation, by erroneously referring to the
wrong defendant, did not waive Atkins‘ rights under the United States Constitution
to confront and cross examine the witnesses to the stipulated testimony. The
stipulation, in relevant part, reads: ―IT IS FURTHER UNDERSTOOD BY THE
UNDERSIGNED DEFENDANT, JOE SALINAS, that he has the absolute right to
confront and cross-examine the . . . witness to this stipulated testimony. The
defendant hereby states that he wishes to freely and voluntarily waive this right.‖
(Emphasis added.)           However, the stipulation referenced ―the undersigned
defendant‖ and was signed by Atkins. Atkins‘ name also appeared under the
signature line in typeface. Moreover, stipulations entered in a criminal case tried
to a jury may be oral. See McClain, 730 S.W.2d at 742 n.1. At trial, Atkins told
the trial court he ―voluntarily [and] freely‖ signed the stipulation, and he admitted
he understood ―the State [did] not have to call in a witness . . . to identify the
deceased.‖4 We conclude Atkins waived his rights to confront and cross-examine

      4
          [Trial court:] And, Mr. Atkins, you understand that you‘re not required to sign
                         this stipulation?
      [Atkins:]        Yes, sir.
      [Trial court:] And you voluntarily, freely have done so?
      [Atkins:]        Yes, sir.
      [Trial court:] So this—by doing so the State does not have to call in a witness
                     now independent of yourself to identify the deceased, you
                     understand that?
      [Atkins:]        Yes, sir.

                                                6
the witnesses to the stipulated testimony and the stipulation constituted sufficient
evidence of the victim‘s identity.

       Even without the stipulation, the State presented ample evidence of the
victim‘s identity. Officers discovered the victim‘s body in McCown‘s residence
four to five days after McCown had been reported missing. McCown‘s daughter
identified McCown by his driver‘s license, which listed the address where the
victim was found as McCown‘s address and correctly identified McCown‘s age as
matching the age of the victim in the autopsy report. McCown‘s daughter also
planned and attended McCown‘s funeral. She testified Atkins was her sister‘s son,
which meant Atkins was McCown‘s grandson. The autopsy report, which was
offered and admitted into evidence without objection as redacted,5 identified the
victim as McCown and noted he died of ―multiple stab wounds.‖ Two officers and
the medical examiner all identified the victim as McCown. The medical examiner
testified that McCown died of ―multiple stab wounds.‖                    Moreover, Atkins
confessed to stabbing his grandfather, who was McCown.

       There was no variance between the proof offered at trial and the indictment,
alleging that Atkins caused the death of his grandfather, McCown. Accordingly,
there is no indication in the record that Atkins did not know whom he was accused
of murdering or that he was surprised by the proof at trial. See Fuller, 73 S.W.3d
at 254. Further, Atkins will not be subjected to another prosecution for the same
offense, as the indictment correctly named the victim who was identified at trial.
See id. Accordingly, the evidence identifying Frank McCown as the victim is
legally sufficient. We overrule Atkins‘ first issue.


       5
         Atkins‘ counsel objected to a report of an anthropology consultation that was attached
to the autopsy report. The State‘s counsel redacted the autopsy report to exclude that
information.

                                              7
       II.    Constitutionality of Penal Code Sections 19.02(b) and 19.03

       In his second issue, Atkins argues the trial court erred in overruling his
motion to declare Penal Code sections 19.02(b) and 19.03 unconstitutional. He
contends the current legislative scheme deprived him of due process under the
Fourteenth Amendment to the United States Constitution, because section 19.02(b)
shifts the burden to the defendant to prove sudden passion6 and section 19.03
precludes a defendant in a capital murder case from asserting the sudden passion
defense. Compare Tex. Penal Code § 19.02(d) (allowing defendant convicted of
first-degree murder to raise during the punishment phase of trial ―the issue as to
whether he caused the death under the immediate influence of sudden passion
arising from an adequate cause,‖ the proof of which reduces the crime to a second-
degree felony) with Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App.
2000) (noting sudden passion is not an available defense to capital murder under
revised legislative scheme (citing Tex. Penal Code § 19.03)).                 He similarly
complains that the legislature unconstitutionally eliminated the crime of voluntary
manslaughter as a lesser-included offense of murder when it relegated sudden
passion to a punishment-phase issue.

       Atkins cites Mullaney v. Wilbur in support of his argument that shifting the
burden of proof on sudden passion to the defendant violates due process. 421 U.S.
684 (1975). In that case, Maine‘s murder statute defined murder as the unlawful
killing of a human being ―with malice aforethought.‖ Id. at 686 n.3. Under the
statute, the element of ―malice aforethought‖ was conclusively implied if the state
proved that the defendant had intentionally or knowingly committed murder. Id. at
686. Malice aforethought then could be rebutted upon proof by the defendant by a
       6
         Under the former statute, the State had the burden of disproving sudden passion when
the issue was raised. Green v. State, 971 S.W.2d 639, 643 (Tex. App.—Houston [14th Dist.]
1998, pet. ref‘d).

                                             8
preponderance of the evidence that the killing was committed ―in the heat of
passion, on sudden provocation.‖ Id. The Supreme Court held that if a state
includes ―malice aforethought‖ as an element of murder, it must prove that element
beyond a reasonable doubt, not through a rebuttable presumption. Id. at 703-04;
see also Almendarez-Torres v. United States, 523 U.S. 224, 240-41 (1998) (―[T]he
State in Mullaney made the critical fact—the absence of ‗heat of passion‘—not
simply a potential sentencing factor, but also a critical part of the definition of
‗malice aforethought,‘ which was itself in turn ‗part of‘ the statute‘s definition of
‗homicide,‘ the crime in question.‖) (emphasis in original). Texas law does not
require the State to prove malice aforethought as an element of murder, and thus
Mullaney is distinguishable on that basis. See Tex. Penal Code § 19.02(b) (listing
elements of murder offense).

       We have already held that current section 19.02 of the Penal Code does not
violate due process under the Fourteenth Amendment to the United States
Constitution on the ground that it shifts the burden of proving sudden passion to
the accused. Green v. State, 971 S.W.2d 639, 644 (Tex. App.—Houston [14th
Dist.] 1998, pet. ref‘d). Similarly, the Court of Criminal Appeals has held the
legislature did not violate due process under the Fourteenth Amendment when it
decided not to permit the sudden passion defense in the context of capital murder.
Wesbrook, 29 S.W.3d at 113; see also Mays v. State, 318 S.W.3d 368, 388 (Tex.
Crim. App. 2010) (acknowledging legislature had authority to eliminate ―sudden
passion‖ from consideration in the capital-murder context).7


       7
          During oral argument, the State conceded that no cases in Texas have addressed
whether the legislature violated due process in deciding not to permit the sudden passion defense
in the context of capital murder when the defendant received a life sentence in lieu of the death
penalty. The State argued, ―[I]t does not make . . . sense that a capital murder defendant facing a
death sentence would have less protection than a defendant who is not facing the death penalty.‖
We agree and conclude that the principles enunciated in Wesbrook and Mays apply equally to
                                                9
       Atkins further argues the legislature violated due process under the
Fourteenth Amendment when it eliminated sudden-passion manslaughter—which
required a lesser degree of criminal culpability than that required for murder—as a
lesser-included offense of murder, because the presence of sudden passion has
traditionally been ―the single most important factor in determining the degree of
culpability attached to an unlawful homicide.‖ Atkins cites Patterson v. New York
in support of his argument, in which the Supreme Court upheld New York‘s
murder statute. 432 U.S. 197, 216 (1977). That statute, unlike the statute in
Mullaney, did not include ―malice aforethought‖ as an element of the crime and
was similar to section 19.02 in that regard. Compare id. at 199, with Tex. Penal
Code § 19.02(b); see also Mullaney, 421 U.S. at 686 n.3. Under New York law,
however, a defendant could show ―emotional disturbance‖ as an affirmative
defense to murder that, if proved by a preponderance of the evidence, would
reduce the crime to manslaughter. Patterson, 432 U.S. at 206. The defense of
emotional disturbance did not negate any elements the State had to prove to
convict a defendant of murder, unlike in Mullaney, where the defendant was
required to negate ―malice aforethought‖ by showing sudden passion.                        Id. at
214-15. Thus, the New York statute did not violate the Due Process Clause. Id. at
216.

       Atkins argues the statutory scheme in Patterson is distinguishable from that
in Texas, because New York law recognized the lesser-included offense of

defendants convicted of capital murder facing the death penalty or a life sentence. See Mays,
318 S.W.3d at 388 (―[Appellant‘s] arguments fail to persuade us that the Texas Legislature did
not have authority to eliminate the former statutory offense of ‗sudden passion‘ manslaughter
from consideration in the capital-murder context.‖); Wesbrook, 29 S.W.3d at 113
(acknowledging it was the legislature‘s prerogative to treat capital murder defendants differently
from other murder defendants by not permitting defense of sudden passion in capital murder
context and holding ―appellant experienced nothing that affected the fundamental fairness of his
trial in violation of any right to due process‖).

                                               10
manslaughter when Texas law does not. However, in Patterson, the Supreme
Court did not hold—or imply—that a state is required to recognize manslaughter
as an offense with a lesser degree of criminal culpability than that required for
murder.           The court merely held that the New York statute did not
unconstitutionally shift the state‘s burden to prove beyond a reasonable doubt all of
the elements included in the definition of murder. Id. at 210, 216. Patterson does
not support the broader proposition posited by Atkins that a legislature would
violate due process by eliminating manslaughter as a lesser-included offense of
murder.

          In Mays, the Court of Criminal Appeals expressly recognized the Texas
Legislature ―ha[d] authority to eliminate the former statutory offense of ‗sudden
passion‘ manslaughter from consideration in the capital-murder context.‖ 318
S.W.3d at 388. It also noted, ―There is no free-floating, non-statutory, common-
law right to an instruction on sudden passion and provocation in a capital-murder
trial.‖     Id.     The legislature alone defines crimes and prescribes penalties.
Wesbrook, 29 S.W.3d at 112. We conclude the legislature did not violate due
process under the Fourteenth Amendment when it eliminated manslaughter as a
lesser-included offense of murder. See id. at 112-13 (holding legislature did not
violate due process when it eliminated sudden passion as a defense to capital
murder).

          We overrule Atkins‘ second issue.

          We affirm the judgment of the trial court.


                                    /s/      Martha Hill Jamison
                                             Justice
Panel consists of Justices Boyce, Jamison, and Busby.
Publish — TEX. R. APP. P. 47.2(b).
                                            11
