Williamson v. State

Colby Ray Williamson, Appellant v. The State of Texas, Appellee

NO. 03-17-00787-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

October 2, 2019

FROM THE 368TH DISTRICT COURT OF WILLIAMSON COUNTY

NO. 15-1493-K26, THE HONORABLE RICK J. KENNON, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted appellant Colby Ray Williamson of felony murder, see Tex. Penal Code § 19.02(b)(3), and assessed his punishment at confinement for life in the Texas Department of Criminal Justice, see id. §§ 12.32, 19.02(c). In two points of error, appellant complains about error in the jury charge. Finding no error, we affirm the trial court's judgment of conviction.

BACKGROUND¹

While driving a friend's car, appellant fled from a police officer attempting to initiate a traffic stop. During the pursuit, appellant "wrecked out," crashing the car into a firehydrant, and fled on foot. Multiple officers then became involved in the pursuit of appellant. Sergeant Chris Kelley located appellant sitting on the front porch of a house in a nearby neighborhood. The officer approached appellant and questioned him. He then went behind appellant to handcuff him. When Sergeant Kelley began to place handcuffs on appellant, appellant struggled and knocked the officer to the ground. He then ran to the officer's patrol car and got in the driver's seat.

Sergeant Kelley chased after appellant and attempted to remove him from the patrol car. During the ensuing struggle, appellant put the car in reverse. Sergeant Kelley was knocked down, and appellant "ran over" him. Appellant then drove off but abandoned the car a short distance away and fled on foot. Almost immediately, other officers arrived on the scene to pursue appellant and to assist Sergeant Kelley—who was lying on the ground unconscious with "a lot of blood" coming from his head. When paramedics arrived on the scene, the officer had no pulse and was not breathing. Resuscitation efforts were unsuccessful. Sergeant Kelley was transported to the hospital where he was pronounced dead.² Officers eventually apprehended appellant and took him into custody.

Appellant was indicted for felony murder. He was subsequently re-indicted and charged in multiple counts with felony murder, evading arrest or detention with a vehicle, failure to stop and render aid, and assault on a public servant. At trial, the State opted to proceed on only the count charging felony murder. The jury found appellant guilty of "Murder, as alleged inthe indictment" and assessed his punishment at life in prison. The trial court sentenced appellant in accordance with the jury's verdicts. Appellant filed a motion for new trial, which was overruled by operation of law. This appeal followed.

DISCUSSION

Appellant raises two points of error complaining about error in the jury charge. First, he asserts that the trial court erred in denying his request for an instruction on the lesser-included offense of manslaughter. Second, appellant contends that the trial court erred by failing to include the culpable mental states in the application paragraph and by providing incorrect definitions of "intentionally" and "knowingly" in the abstract portion of the charge.

Standard of Review

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. Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim. App. 2017); 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); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g) (setting forth procedure for appellate review of claim of jury charge error). If the jury charge error has been properly preserved by an objection or request for instruction, reversal is required if the appellant has suffered "some harm" from the error. Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018) (citing Almanza, 686 S.W.2d at 171). If the charge error was not properly preserved, the error must be "fundamental" and requires reversal only if it was "so egregious and created such harm that the defendant wasdeprived of a fair and impartial trial." Marshall, 479 S.W.3d at 843 (citing Almanza, 686 S.W.2d at 171); see Mendez, 545 S.W.3d at 552.

Lesser-Included-Offense Instruction

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 use a two-part analysis to determine if a defendant is entitled to a jury-charge instruction on a lesser-included offense. Ritcherson v. State, 568 S.W.3d 667, 670 (Tex. Crim. App. 2018) (citing Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993)); Safian v. State, 543 S.W.3d 216, 219 (Tex. Crim. App. 2018). First, we determine whether the requested offense is a lesser-included offense of the charged offense. Roy v. State, 509 S.W.3d 315, 317 (Tex. Crim. App. 2017); Bullock v. State, 509 S.W.3d 921, 924 (Tex. Crim. App. 2016). If so, we must decide whether the admitted evidence at trial supports giving the instruction to the jury. Bullock, 509 S.W.3d at 924-25 (citing Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011)); Wortham v. State, 412 S.W.3d 552, 554 (Tex. Crim. App. 2013).

To determine whether an offense qualifies as a lesser-included offense, we employ the cognate-pleadings approach. Bien v. State, 550 S.W.3d 180, 185 (Tex. Crim. App.), cert. denied, 139 S. Ct. 646 (2018); see Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007). Under this approach, we compare the elements of the greater offense as pled in the charging instrument to the statutory elements of the potential lesser-included offense in the abstract. Safian, 543 S.W.3d at 220; Hall, 225 S.W.3d at 535. We ask "whether the lesser-included offense is included within the proof necessary to establish the offense charged." Safian, 543 S.W.3d at 219-20 (quoting Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011));Hall, 225 S.W.3d at 536; see Tex. Code Crim. Proc. art. 37.09(1) ("An offense is a lesser included offense if it is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]"). "[W]hen the greater offense may be committed in more than one manner, the manner alleged will determine the availability of lesser-included offenses." Safian, 543 S.W.3d at 220 (quoting Hall, 225 S.W.3d at 531). Whether an offense qualifies as a lesser-included offense is a question of law, and it does not depend on the evidence to be produced at trial. Id.; Rice, 333 S.W.3d at 144; Hall, 225 S.W.3d at 535.

The second step of the lesser-included-offense analysis is to determine whether there is some evidence in the record that would permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser-included offense. Ritcherson, 568 S.W.3d at 671; Safian, 543 S.W.3d at 220. That requirement is met if there is (1) evidence that directly refutes or negates other evidence establishing the greater offense and raises the lesser-included offense or (2) evidence that is susceptible to different interpretations, one of which refutes or negates an element of the greater offense and raises the lesser offense. Ritcherson, 568 S.W.3d at 671 (citing Saunders v. State, 840 S.W.2d 390, 391-92 (Tex. Crim. App. 1992)); Sweed, 351 S.W.3d at 68. This second step is a question of fact and is based on the evidence presented at trial. Cavazos v. State, 382 S.W.3d 377, 383 (Tex. Crim. App. 2012).

Examining the elements of the charged offense, a person commits felony murder if he commits or attempts to commit a felony (other than manslaughter), and in the course of and in furtherance of or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual. Tex. Penal Code § 19.02(b)(3). Felony murder attaches no culpable mental state to the death of an individual. See Lomax v. State, 233 S.W.3d 302, 305, 307 (Tex. Crim. App. 2007) (concludingthat Penal Code section 19.02(b)(3) "plainly dispenses with a culpable mental state" concerning act of murder); see also Nava v. State, 415 S.W.3d 289, 293 n.1 (Tex. Crim. App. 2013) (confirming that felony murder is "an offense which lacks a culpable mental state with respect to causing death"). Therefore, to prove felony murder, the State must prove the elements of the underlying felony, including the culpable mental state for that felony; however, no proof of a culpable mental state is required for the murder committed. See Lomax, 233 S.W.3d at 306-07 (observing that "the very nature of the felony-murder rule is that there is no culpable mental state 'for the act of murder'"); see also Rodriguez v. State, 454 S.W.3d 503, 507 (Tex. Crim. App. 2014) (recognizing that felony murder is "an unintentional murder committed in the course of committing a felony").

Regarding the elements of the requested offense, a person commits manslaughter if he recklessly causes the death of an individual. Tex. Penal Code § 19.04(a). As relates to manslaughter, "[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." Schroeder v. State, 123 S.W.3d 398, 401 (Tex. Crim. App. 2003) (quoting Tex. Penal Code § 6.03(c)); see Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013) (recognizing that "[m]anslaughter is a result-oriented offense: the mental state must relate to the results of the defendant's actions").

A comparison of the elements of the two offenses demonstrates that manslaughter requires proof of an element that felony murder does not—a...