                                    NO. 07-07-0065-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL B

                                    JUNE 12, 2008
                           ______________________________

                                     ELIZABETH HILL,

                                                                 Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                                 Appellee
       _________________________________

              FROM THE 403RD DISTRICT COURT OF TRAVIS COUNTY;

           NO. D-1-DC-05-300771; HON. BRENDA KENNEDY, PRESIDING
                      _______________________________

                                Memorandum Opinion
                          _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Elizabeth Hill was convicted of murder and sentenced to thirty years in prison. She

appeals that conviction in four issues by 1) attacking the legal and factual sufficiency of the

evidence, 2) challenging the court’s failure to instruct the jury that a negative finding on

sudden passion must be unanimous, and 3) attacking the sufficiency of the evidence to

prove sudden passion. We affirm.
        Issues 1 and 2 - Legal and Factual Sufficiency

        The standards by which we review legal and factual sufficiency are well established.

We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979) and Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006) for explanation of

them.

        The evidence at trial was uncontested that Hill shot and killed her husband Joseph

Lucas. She contended she did so, however, in self defense and as a result of an abusive

relationship. Hill argues that the evidence was sufficient to establish that defense. When

a defendant challenges the legal sufficiency of the evidence supporting the factfinder’s

rejection of self defense in a murder case, we do not look to whether the State presented

evidence that refuted the theory of self defense but instead determine whether any rational

trier of fact would have found the essential elements of murder beyond a reasonable doubt

and would have also found against the defendant on the issue of self defense beyond a

reasonable doubt. Miller v. State, 177 S.W.3d 177, 183 (Tex. App.–Houston [1st Dist.

2005, pet. ref’d). Furthermore, at the time of trial, a person could use deadly force in her

own defense to the degree she reasonably believed the force was immediately necessary

to protect herself against the other’s use or attempted use of unlawful force and if a

reasonable person in the actor’s situation would not have retreated. TEX . PEN . CODE ANN .

§9.32(a) (Vernon 2003).

        The record shows that 1) appellant was perceived by persons who knew the couple

to have the stronger personality, 2) appellant was very angry over Joseph having




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disciplined their son in an inappropriate manner1 and requested that he move out, 3) she

gave opposite stories to persons about whether the marriage was over or could be saved

after a joint counseling session, 4) during that counseling session, the counselor did not

perceive appellant to feel personally threatened by Joseph but found her to be concerned

that Joseph not take any of her personal belongings, 5) appellant called Joseph abusive

names during the counseling session but Joseph did not reciprocate and took responsibility

for his inappropriate behavior with his son, 6) although appellant testified she was afraid

of Joseph and asked a neighbor to be at the house when Joseph came to collect his

personal belongings, the neighbor never heard any arguments or raised voices while

appellant and Joseph were downstairs discussing finances and perceived the couple to be

friendly, 7) although appellant testified she was afraid of Joseph, she agreed to accompany

him alone upstairs to collect his belongings without asking the neighbor to accompany

them, 8) about 20 or 30 seconds after appellant and Joseph went upstairs, appellant began

screaming that Joseph should let go of her but the neighbor never heard sounds of a

struggle or Joseph say anything, 9) appellant continued to scream for several minutes, but

the neighbor never heard any sounds from Joseph until he heard an “ugh,” 10) four shots

were fired into Joseph with two of them having a trajectory sharply downward, 11) forensic

evidence showed the first two shots were probably in the face and the hand which then

penetrated into Joseph’s chest causing him to fall and the last two shots were fired into his

shoulder and head, 12) any of the four shots could ultimately have been fatal, 13) there


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          The six-year-old child had body slam m ed the two-year-old child to the ground. Joseph then did the
sam e to the six-year-old to show him how it felt. A police officer investigated and found two bruises on the
child. He was also seen by a doctor and found to have no serious injury. Appellant denied to the responding
police officer that she was in an assaultive relationship with Joseph.

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were no obvious signs of a struggle in the couple’s bedroom or closet where Joseph was

found, 14) the blood spatter was found no higher than four feet above the ground and

blood spatter was consistent with Joseph being no higher than one and one-half to two feet

from the floor when he was shot in the head, 15) no blood was found outside of the closet,

16) appellant never saw a weapon on Joseph that night and appellant had never known

him to carry or own a weapon, 17) appellant had been a Travis County jailer and had

firearm training, 18) appellant had no visible blood, red marks, bruises, or scratches on her

after the murder, 19) a fellow prisoner stated that appellant told her she had antagonized

Joseph into attacking her and then shot him, 20) the detective questioning appellant

believed that her tears were forced since she tended to look at him for his reaction, 21)

appellant expressed no remorse to investigating officers over the death of her husband,

22) appellant informed her cell mate that she was “trying to save her house through the

insurance on the husband,” and 23) appellant had previously disclosed to an officer that

she was not in an abusive relationship with her husband. The foregoing is some evidence

upon which a rational jury could conclude, beyond reasonable doubt, that appellant

murdered her husband and did not act in self-defense.

       Admittedly, there had been an incident that appellant reported to police in 1997

when Joseph had allegedly pushed appellant into the bed causing her to fall to the floor

and bruise herself. There was also expert testimony that appellant fell within the pattern

of an abused wife in spite of her outwardly stronger personality. Appellant herself

explained that she was so afraid of Joseph after she asked him to move out that she slept

with a gun under her pillow. During the incident, she averred that Joseph had pulled her

into the closet and locked her in a bear hug with his hand over her mouth while screaming

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and threatening to kill her and their sons. She further stated that she kneed him in the

groin and, after he grabbed her leg, she reached for her gun in a shoe case (which she had

just placed in that location that morning) and shot Joseph twice. Two more shots were

fired inadvertently, according to her, after she fell in the outer closet and Joseph lunged at

her. Yet, this testimony and other of its ilk simply raised issues of credibility. And,

selecting the witness and testimony to believe falls within the bailiwick of the jury. For

instance, it was up to that body to decide whether appellant spoke truthfully when she

alleged that the decedent grabbed and screamed at her; again, the neighbor testified that

he heard no noises coming from Joseph except a final grunt.

       So, based on the entire record before us, we cannot say that the jury’s verdict is

supported by weak evidence or so against the great weight of the evidence as to

undermine our confidence in the outcome. Simply put, the evidence is both legally and

factually sufficient to uphold the verdict, and issues one and two are overruled.

       Issue 3 - Charge Error

       Appellant next complains of the trial court’s failure to make clear to the jury in the

charge on punishment that a finding either for or against sudden passion must be

unanimous per Sanchez v. State, 23 S.W.3d 30, 34 (Tex. Crim. App. 2000). We overrule

the issue.

       Here, the trial court instructed the jury, via separate paragraphs, about its need to

decide whether or not appellant acted under sudden passion. So too did it inform the jury

of the range of punishment applicable in either situation. It subsequently closed its

instructions by telling the jurors that “[y]our verdict must each be unanimous.” (Emphasis

added). After deliberating, the jury returned one form addressing the matter of sudden

                                              5
passion and another setting punishment. Under these circumstances, we conclude that

the trial court fulfilled its obligation in question through informing the jury that each verdict

must be unanimous. See Cartier v. State, 58 S.W.3d 756, 760 (Tex. App.–Amarillo 2001,

pet. ref’d) (finding the general instruction that the verdict must be unanimous sufficient to

instruct the jury that its finding on sudden passion must be unanimous).

       Issue 4 - Evidence to Support Sudden Passion

       Finally, appellant argues that the jury finding against sudden passion was in error.

It is not clear whether appellant is challenging the legal or factual sufficiency of the

evidence or both of them. However, appellant does not prevail under either one, and we

overrule the issue.

       Sudden passion is 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. TEX . PEN . CODE ANN . §19.02(a)(2) (Vernon 2003). Next, adequate

cause is 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).

       Evidence appears of record that, if believed, could support a finding of sudden

passion. Yet, the very same evidence depicting that appellant did not act in self-defense

also constitutes some evidence that she acted from cool reflection or otherwise planned

the murder. Again, there were no signs of a struggle in the bedroom or closet or on

appellant. Moreover, the only surviving witness at the scene, other than appellant, heard

no screams or threats purportedly uttered by Joseph, only those of appellant. This and

other matter of record tended to contradict appellant’s version of events.

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       As already stated, the jury was free to disbelieve appellant’s story. Even if Joseph

had been abusive to appellant in the past, it had before it some evidence upon which it

could decide, beyond reasonable doubt, that appellant’s actions did not result directly from

or arise out of provocation at the time of the offense. And, we cannot say that the evidence

supporting such a decision was weak or overwhelmed by contrary evidence.

       Having overruled all of appellant’s issues, we affirm the judgment of the trial court.



                                                 Per Curiam



Do not publish.




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