Walker v. State

557 S.W.3d 678

Alexis Elaina WALKER, Appellant

v.The STATE of Texas, Appellee

No. 06–17–00092–CR

Court of Appeals of Texas, Texarkana.

Date Submitted: November 30, 2017

Date Decided: February 21, 2018

Discretionary Review Refused August 22, 2018

Jason D. Cassel, Attorney at Law, Longview, TX, for Appellant.

Laura M. Carpenter, Assistant District Attorney, Coke Solomon, District Attorney, Marshall, TX, for Appellee.

Before Morriss, C.J., Moseley and Burgess, JJ.

OPINION

Opinion by Justice Burgess

After a jury found Alexis Elaina Walker guilty of murder, the trial court sentenced her to thirty years' confinement in prison. Walker has appealed the trial court's judgment, maintaining that the trial court (1) erred when it failed to include in its jury charge an instruction on the reasonableness of her use of deadly force, (2) erred during the punishment phase because it failed to include an instruction on the issue of sudden passion, and (3) erred when it assessed attorney fees against Walker. For the reasons below, we will modify the trial court's judgment by deleting the assessment of attorney's fees against Walker. In all other aspects, we affirm the trial court's judgment.

I. Background

A. Evidence at Guilt/Innocence Phase

Walker and her husband, Mark Anthony Updyke, went to a restaurant on the evening of November 28, 2014, where Walker had three mixed drinks. When they arrived home, Walker and Updyke went across the street where a group of their friends were sitting by a fire, and Walker drank four or five more shots of liquor. During that time, Walker made several trips to the neighbor's home in order to use the restroom, and her friend, Lindsey Tucker, went along with her each time. Updyke asked Walker if she had "something going on" with Tucker, which Walker understood as an accusation that she and Tucker were using cocaine. Walker and Updyke began to argue, and Updyke "stomped home" toward the couple's home across the street. At some point, Updyke took possession of Walker's car keys.

Walker followed Updyke, who continued to question her about the number of times Walker had gone inside the neighbor's home. When they arrived at their home, Updyke "roll[ed] a joint," and the pair continued arguing. After shoving Walker, Updyke left the mobile home and went back across the street to join the others.

While Walker was alone in the couple's home, she sent Updyke over forty text messages within a two-hour period, most of which were laced with profanity. In one message, Walker accused Updyke of having inappropriate relationships with married women, and she informed Updyke that she had messaged their husbands to apprise them of her beliefs. Walker repeatedly asked Updyke to return her keys, and Updyke replied, "Let me in and I want a kiss." Walker responded, "[expletive] off u come in and I will put a bullet inn [sic] you." When no response from Updyke was forthcoming, Walker messaged him that she was "setting [expletive] on fire."¹

At that point, Updyke went back to the couple's home. Finding the door locked, Updyke proceeded to climb through a window of the home. Walker stated that she ran to her room and retrieved a gun that she had stored in a "gun box." Walker said she remembered raising the gun and shooting Updyke, but she did not remember shooting him four times. In actuality, Walker shot Updyke once in his chest and three more times in his back.

During her interview with the investigators, Walker described Updyke as being "mean." She stated that Updyke had been abusive to her in the past and that he had done so in front of the children, but that it had "been a while" since he had physically assaulted her. Walker said she did not want other people to know about the alleged abuse because she "[had] children with [Updyke]." When asked if she was scared of Updyke, Walker explained that he had threatened to kill her in May by breaking her neck, but she questioned whether he would ever have followed through with his threat. According to Walker, she had more nerve than Updyke did "when [she had] been drinking." Walker claimed that, when she shot Updyke, she was attempting to protect herself and that she did not intend to kill him.

Walker also maintained that she was angry with Updyke because he had accused her of using cocaine that evening. When asked why she did not simply run out the front door when Updyke entered the home, Walker explained that, if she had left the house, Updyke would have locked her out of the home without her keys. Walker stated that Updyke was aware that she was in possession of a gun. Moreover, Walker knew that Updyke did not have a weapon because he had been convicted of a felony, and he was not allowed to have one in his possession.

B. Evidence at Punishment Phase

At the punishment phase of trial, Walker testified that her relationship with Updyke had always had its "up[s] and downs" and that they separated quite often. According to Walker, whenever they separated, she would find other places to live. Walker stated that Updyke first struck her when she was "probably five or six months' pregnant." Walker explained that Updyke's behavior did not "stand out to [her]" because she "was used to seeing it" when she was younger. Walker testified, "There were incidents [Updyke] would grab me by the throat. Numerous occasions of him taking me by the hair and pulling me off my feet. I've been kicked while I was down on the ground. I've been drug through the house." Walker stated that, during the last year of their marriage, Updyke had been unfaithful, but she also conceded that she had been unfaithful as well.

Walker recalled sending several text messages to Updyke on the evening of the incident and also "throwing stuff out the windows." She testified, "I don't—I can't tell you in what order I did those things. I just don't’ know." Walker stated that, when Updyke sent the text message to her that he wanted a kiss from her, she "felt like that was a trick to get [her] to open the door." According to Walker, she had no plans to hurt, shoot, or kill Updyke that evening.

When asked what was going through her mind, Walker stated, "I can't—I can't tell you exactly. I mean, I had been drinking so much that evening." Walker said that she was mad and upset at different times during the evening, but that she was scared "[o]nly when he came to the house." Walker stated that the only thing she wanted was to get her keys from Updyke. "I tried—I tried everything. I begged him. I tried bargaining with him." Walker said the only reason she sent Updyke the text message about burning "stuff" was to convince Updyke to return her keys.

Walker stated that, initially, when Updyke came to the house, she was standing in the kitchen, Updyke remained outside the house, and they began to argue. According to Walker, Updyke then attempted to come through the window, and she tried to stop him by "pushing him down" "[w]ith both hands, trying to shove him back." When she could not stop him from coming inside, Walker ran to her room, thinking, "[O]h, [expletive], he's fixing to get me."

Walker said she retrieved the gun from her closet, removed it from the box, "and turned and fired." She continued, "And, I—I can't tell you much more than that because I don't know." Walker said that she "didn't know what [Updyke] was going to do," but that she did not "want to find out." According to Walker, she was afraid Updyke was "going to do something worse than he had ever done before[.]" Walker could not recall how many times she shot Updyke or where she shot him. Walker then began searching for her telephone. Eventually, she found her telephone in the kitchen and called 9–1–1.

II. The Trial Court's Jury Instructions

On appeal, Walker contends that the trial court's jury instructions contained error in both phases of the proceedings, maintaining that (1) during the guilt/innocence phase, she was entitled to an instruction regarding the reasonableness of her use of deadly force because Updyke was committing burglary when he unlawfully entered the home with the intent to assault her and (2) during the punishment phase, the trial court erred when it failed to include a jury instruction on the issue of sudden passion. For the reasons below, we disagree.

A. Standard of Review

The standard of review for jury charge error is the same regardless of whether error was alleged to have occurred during the guilt/innocence phase or the punishment phase. Our review of an alleged jury charge error involves a two-step process. Abdnor v. State , 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, we determine whether error occurred; we then "determine whether sufficient harm resulted from the error to require reversal." Id. at 731–32 ; see Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). The level of harm that must be shown as having resulted from the erroneous jury instruction depends on whether the appellant properly objected to the error. Abdnor , 871 S.W.2d at 732.

When a proper objection is made at trial, a reversal is required if there is "some harm" "calculated to injure the rights of defendant ." Id. (quoting Williams v. State , 547 S.W.2d 18, 20 (Tex. Crim. App. 1977) ). But, when the defendant fails to object "to the charge, we will not reverse the jury-charge error unless the record shows ‘egregious harm’ to the defendant." Ngo v. State , 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005) (citing Almanza , 686 S.W.2d at 171 ). In determining whether the error caused egregious harm, we must decide whether the error created such harm that the appellant did not have a "fair and impartial trial." TEX. CODE CRIM. PROC. ANN. art. 36.19 (West 2006) ; Allen v. State , 253 S.W.3d 260, 264 (Tex. Crim. App. 2008) ; Almanza , 686 S.W.2d at 171 ; Boones v. State , 170 S.W.3d 653, 659 (Tex. App.–Texarkana 2005, no pet.).

"In order to preserve error relating to a jury charge, there must either be an objection or a requested charge." Vasquez v. State , 919...