Roberts v. State

Christopher Roberts, Appellant v. The State of Texas, Appellee

NO. 03-14-00637-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

October 26, 2016

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT

NO. D-1-DC-12-302227, THE HONORABLE BRENDA KENNEDY, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted appellant Christopher Roberts of murdering his girlfriend, see Tex. Penal Code § 19.02(b)(1) (defining offense of murder as intentionally or knowingly causing death of individual), and assessed his punishment at confinement for 50 years in the Texas Department of Criminal Justice, see id. §§ 19.02(c) (classifying murder as first degree felony), 12.32 (establishing punishment range for first degree felony). In four points of error, appellant contends the trial court erred in denying his requested jury charge instruction, asserts that opinion testimony was erroneously admitted, challenges the sufficiency of the evidence, and complains about improper jury argument by the State. We find no reversible error. However, through our own review of the record, we have found non-reversible error in the written judgment of conviction. We will modify the judgment to correct the error and, as modified, affirm the trial court's judgment of conviction.

BACKGROUND¹

Police and emergency medical personnel were dispatched in response to a 911 call regarding a possible deceased person and found the body of Kirstin Anderson in the bedroom of her home. Appellant had called 911 to request an ambulance because he was "pretty positive" that Anderson, his girlfriend and the landlord of the house, was dead. A subsequent autopsy determined that Anderson had been strangled to death.² In interviews with law enforcement, appellant admitted that he had choked Anderson the night she died. While he initially denied that his conduct caused her death, he ultimately confessed that he "killed her."

DISCUSSION

Jury Charge Error

In his first point of error, appellant argues that the trial court erred by denying his requested jury charge instruction on the lesser-included offense of manslaughter.

We review alleged jury charge error in two steps: first, we determine whether error exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g)); Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App.2005). The degree of harm required for reversal depends on whether the jury charge error was preserved in the trial court. Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016) (citing Almanza, 686 S.W.2d at 171). If the jury charge error has been properly preserved by an objection or request for instruction, as it was here, reversal is required if the appellant has suffered "some harm" from the error. Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013) (citing Almanza, 686 S.W.2d at 171); see Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) ("If there was error and appellant objected to the error at trial, reversal is required if the error 'is calculated to injure the rights of the defendant,' which we have defined to mean that there is 'some harm.'" (quoting Almanza, 686 S.W.2d at 171)).

Determining whether a defendant is entitled to a lesser-included-offense instruction requires a two-part analysis. Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011); Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007). We first consider whether the offense contained in the requested instruction is a lesser-included offense of the charged offense. Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011); Hall, 225 S.W.3d at 535. If so, we must decide whether the admitted evidence supports the instruction. Goad, 354 S.W.3d at 446; Rice, 333 S.W.3d at 144.

Neither party disputes that manslaughter is a lesser-included offense of murder as charged in the indictment here, see Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012); Schroeder v. State, 123 S.W.3d 398, 400 (Tex. Crim. App. 2003), so we proceed to the second prong. Under this prong, we must consider whether there was some evidence raised at trial from which a rational jury could acquit appellant of the greater offense of murder and convict him of thelesser-included offense of manslaughter. See Cavazos, 382 S.W.3d at 385; see also Tex. Penal Code §§ 19.02(b)(1) (person commits offense of murder if he intentionally or knowingly causes death of individual), 19.04(a) (person commits offense of manslaughter if he recklessly causes death of individual). We must determine if there is some evidence in the record that would permit a jury to rationally find that, if appellant is guilty, he is guilty only of manslaughter. See Rice, 333 S.W.3d at 145; Guzman v. State, 188 S.W.3d 185, 188-89 (Tex. Crim. App. 2006).

The evidence must establish the lesser-included offense as "a valid, rational alternative to the charged offense." Rice, 333 S.W.3d at 145 (quoting Hall, 225 S.W.3d at 536); Segundo v. State, 270 S.W.3d 79, 91 (Tex. Crim. App. 2008). We consider all of the evidence admitted at trial, not just the evidence presented by the defendant. Goad, 354 S.W.3d at 446; Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993). "Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge." Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011). We may not consider the credibility of the evidence or whether it conflicts with other evidence or is controverted. Goad, 354 S.W.3d at 446-47. However, "it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather, there must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted." Sweed, 351 S.W.3d at 68 (quoting Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997)). "Meeting this threshold requires more than mere speculation—it requires affirmative evidence that both raises the lesser-included offense and rebuts or negates an element of the greater offense." Cavazos, 382 S.W.3d at 385.

Murder is a "result of conduct" offense, which requires that the culpable mental state relate to the result of the conduct, i.e., the causing of the death. Roberts v. State, 273 S.W.3d 322, 328-29 (Tex. Crim. App. 2008), abrogated in part by Ex parte Norris, 390 S.W.3d 338, 341 (Tex. Crim. App. 2012); see Cavazos, 382 S.W.3d at 384. The critical issue here is on the element of appellant's mental state when he choked Anderson to death. As indicted, the State needed to prove that appellant acted intentionally or knowingly in causing Anderson's death. See Tex. Penal Code § 19.02(b)(1). A person acts "intentionally, or with intent" with respect to a result of his conduct when it is his conscious objective or desire to cause the result. Id. § 6.03(a). A person acts "knowingly, or with knowledge" with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b). Manslaughter would require proof that appellant recklessly caused Anderson's death. See id. § 19.04. A person acts "recklessly, or is reckless" with respect to the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur. Id. § 6.03(c).

The question is whether the record before us provides more than a scintilla of evidence that, if appellant is guilty, he is guilty only of manslaughter; that is, of recklessly causing the death of his girlfriend. See Schroeder, 123 S.W.3d at 400; see also Cavazos, 382 S.W.3d at 385 ("While it is true that the evidence may be weak or contradicted, the evidence must still be directly germane to the lesser-included offense and must rise to a level that a rational jury could find that if Appellant is guilty, he is guilty only of the lesser-included offense."). There must be some affirmative evidence in the record demonstrating that appellant was aware of but consciously disregarded a substantial and unjustifiable risk that death would occur from choking Anderson. Thisevidence must also rebut or negate the mental state of the greater murder offense: intentionally or knowingly. That is, this evidence must also demonstrate that appellant did not act with the conscious objective or desire to cause Anderson's death or with an awareness that his conduct was reasonably certain to cause Anderson's death when he choked her. Appellant directs us to no such evidence. The evidence he relies on does not demonstrate a reckless killing.

At trial, during the charge conference, appellant relied on portions of his first interview with the investigating detective, which he maintained constituted evidence indicating that he "choked [Anderson] to unconsciousness." He claimed that this evidence combined with the medical examiner's testimony—that someone could be choked but recover and die later—could support a finding that he acted recklessly that night.³ However, the evidence appellant relied on tosupport his argument—his statements about a prior choking incident and the alleged "sex with strangulation" the night of Anderson's death—does not demonstrate that he choked Anderson "to unconsciousness" that night.

During his first interview, appellant explained that on one occasion, about a year before the night he choked Anderson to death, he restrained Anderson by putting her in a "figure four" chokehold to calm her down. He choked her for "maybe four minutes" until she passed out. However, also during that interview, appellant indicated that on the night Anderson died, although he choked her to calm her down, she did not lose consciousness. Appellant's reliance on the "sex with strangulation" evidence is also misplaced as it too fails to demonstrate that he choked...