Metcalf v. State

631 S.W.3d 189

Derrick Kevin METCALF, Appellant

v.The STATE of Texas, Appellee

NO. 14-19-00101-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed April 16, 2020

Mandy Miller, Katy, for Appellant.

Kim K. Ogg, Houston, Eric Kugler, Melissa H. Stryker, for Appellee.

Panel consists of Justices Bourliot, Hassan, and Poissant.

Frances Bourliot, Justice

Appellant Derrick Metcalf challenges his capital murder conviction in four issues, contending the trial court erred in refusing to instruct the jury on the law of parties and the lesser included offense of attempted capital murder. Appellant also asserts that the trial court abused its discretion in admitting extraneous offense evidence involving a previous attempt to poison the complainant. We affirm.

Background

Appellant had a romantic relationship with Rose Hunt. Hunt became pregnant and thought appellant was the father. Hunt asked appellant to go to doctor visits with her, and he refused. Hunt subsequently contacted the mothers of appellant's children and told them about the pregnancy. Appellant became annoyed with Hunt's persistence. He approached a friend, Justin Odom, and asked if Odom could help him "make someone disappear." Odom introduced appellant to David Galindo.

Galindo told appellant he would kill Hunt for $1,500. Galindo planned to take Hunt on a "date" and kill her on Tri City Beach Road, a relatively untraveled road in a secluded area. Appellant made a $500 down payment. Appellant testified at trial that he called Galindo a week after making the initial payment to call it off. Galindo killed Hunt anyway, and appellant paid the $1,000 balance. Appellant testified that he paid the balance because Galindo told him "[i]f you don't have my money, something bad can happen to you.... I knew he had killed Rose. And so, I knew that he would have no problem killing me."

On February 24, 2017, Hunt's body was discovered on the side of Tri City Beach Road. She was eight months pregnant and had been shot in the head. Witnesses linked Galindo to a vehicle that was seen on that road around the time of the murder. After officers interviewed Galindo, they also interviewed appellant and arrested him. He was charged with capital murder.

At trial, Galindo's girlfriend, Daizy Costello, testified that she was present when Galindo and appellant discussed the plan to kill Hunt. During that meeting, appellant told Galindo he previously had tried to poison Hunt but she would not die. Celia Torres was also present during the conversation and testified that appellant said he used rat poison and antifreeze in his attempts to kill Hunt.

Discussion

Defendant contends that the trial court should have submitted jury charge instructions on the law of parties and attempted capital murder. Defendant further asserts that the trial court erred in admitting evidence that he had attempted to poison Hunt. We first address the jury charge issues and then turn to the evidentiary challenges.

I. Jury Charge Instructions Not Required

Appellant contends in issues one and two that the trial court erred in failing to submit jury charge instructions on the law of parties and the lesser included offense of attempted capital murder. We review a complaint of jury charge error under a two step process. Ngo v. State , 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). First, we determine whether error occurred, and then, if we find error, we evaluate whether harm resulted from the error sufficient to require reversal. Id. (citing Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) ). Jury charge error requires reversal when the defendant has properly objected to the charge and we find "some harm" to his rights. Id. When the defendant fails to object, reversal is only appropriate if the record shows "egregious harm" to the defendant. Id. at 743-44.

As relevant in this case, a person commits capital murder if he "commits murder as defined under" section 19.02(b)(1) of the Penal Code and "the person ... employs another to commit the murder for remuneration or the promise of remuneration." Tex. Penal Code § 19.03(a)(3). A person commits murder under section 19.02(b)(1) if he "intentionally or knowingly causes the death of an individual." Id. § 19.02(b)(1).

Law of Parties Instruction . Appellant contends that he was "a party to the physical act of murder," not a principal, so the trial court should have submitted a jury instruction on the law of parties.¹ "A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both." Id. § 7.01(a). A person is criminally responsible for another's conduct when he acts "with intent to promote or assist the commission of the offense" and "solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." Id. § 7.02(a)(2).

Appellant was indicted with "unlawfully, intentionally, and knowingly caus[ing] the death of ROSE HUNT ... by employing DAVID GALINDO for remuneration and the promise of remuneration." The jury charge provided the following instructions on murder and capital murder:

A person commits the offense of murder if he intentionally or knowingly causes the death of an individual.

A person commits the offense of capital murder if he employs another to commit the murder for remuneration or the promise of remuneration....

Now, if you find from the evidence beyond a reasonable doubt that in Harris County, Texas, on or about the 24th February, 2017, the defendant, Derrick Kevin Metcalf, did then and there unlawfully, intentionally or knowingly cause the death of Rose Hunt, by employing David Galindo for remuneration or the promise of remuneration, to-wit: cash money, by shooting Rose Hunt with a deadly weapon, namely a firearm, then you will find the defendant guilty as charged in the indictment.

Appellant's counsel posited during oral argument that the indictment and charge improperly injected a word into the statute, "by," thus incorrectly allowing appellant to be convicted as a principal to capital murder instead of as a party ("intentionally or knowingly cause the death of Rose Hunt, by employing David Galindo" (emphasis added)). According to appellant, he would be a party to the offense only upon a finding that he was criminally responsible for Galindo's actions. The State contends that "employ[ing] another to commit ... murder for remuneration or the promise of remuneration" is one manner or means of committing capital murder under the statute as a principal, and thus the inclusion of the word "by" in the indictment and charge was appropriate. We agree with the State.

The jury charge gave an instruction on the elements of capital murder under section 19.03(a)(3) and then applied the facts to the elements of the charged offense—in short, the charge authorized the jury to convict only upon a finding beyond a reasonable doubt that appellant "intentionally or knowingly" caused Hunt's death as required under the statute. See id. § 19.03(a)(3); see also Lopez v. State , 493 S.W.3d 126, 137 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd). The manner and means authorized under the statute by which appellant was charged with causing Hunt's death was "employing David Galindo for remuneration or the promise of remuneration." See Lopez , 493 S.W.3d at 137 ; cf. Gamez v. State , 665 S.W.2d 124, 127 (Tex. App.—San Antonio 1983) (noting capital murder statute enumerates five ways in which one commits capital murder), aff'd , 737 S.W.2d 315 (Tex. Crim. App. 1987). Our sister court has held that a person commits capital murder as a principal "if he ‘intentionally or knowingly causes the death of an individual’ by employing another to commit the murder for remuneration or the promise of remuneration." Lopez , 493 S.W.3d at 137. We agree. Accordingly, the trial court properly instructed the jury that it could convict appellant as a principal to capital murder. See Lopez , 493 S.W.3d at 137 ("[W]e conclude that the application paragraph authorized conviction of Lopez as a principal under the correct mens rea element.").

Appellant cites Gamez v. State in support of his argument that he was entitled to an instruction on the law of parties. See 665 S.W.2d 124. In that case, the defendant hired someone to kill a man. Id. at 125. The defendant argued on appeal that the State was required to prove he "personally shot the deceased" because the indictment alleged that the defendant "intentionally and knowingly" caused the complainant's death by shooting him and by "employ[ing someone] for remuneration and promise of remuneration ... to kill the ... complainant by shooting [him]." Id. at 126-27. The court of appeals acknowledged that the defendant was guilty as a party to murder because he was not the shooter. Id. at 127. The court held on this basis that the trial court did not err in including a law of parties instruction. Id. But the court further noted that the indictment also alleged an additional fact allowing the jury to convict the defendant: "employing another to commit murder for remuneration, so that the indictment, when viewed in its entirety, charge[d] capital murder." Id. The court concluded, "because of the proof of the murder contract and the payment of money, [the defendant was] also guilty of capital murder," id. , which would have been as a principal.

Here, the indictment did not allege that appellant intentionally and knowingly caused Hunt's death by shooting her. See id. Instead, the State alleged only that appellant intentionally and knowingly caused Hunt's death by employing David Galindo to kill Hunt, which, if true, made appellant a principal to capital murder. See Lopez , 493 S.W.3d at 137. There is no evidence in this record that appellant was a party, as opposed to a principal, to capital murder. See id. Accordingly, a party instruction under these facts would have been superfluous and was not required.² See id. at...