Opinion
NO. 03-14-00531-CR
04-28-2016
Derrick Kuykendall, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. D-1-DC-13-300701, HONORABLE BERT RICHARDSON, JUDGE PRESIDINGMEMORANDUM OPINION
A jury found Derrick Kuykendall guilty of manslaughter and assessed his punishment at fifteen years' imprisonment. See Tex. Penal Code § 19.04. In two points of error, Kuykendall contends that the trial court erred in failing to submit to the jury a verdict form that would allow the jury to make a separate affirmative deadly-weapon finding and in failing to include an instruction on the lesser-included offense of criminally negligent homicide. We will affirm the trial court's judgment of conviction.
BACKGROUND
The facts recited herein are taken from the testimony and exhibits presented at trial.
Appellant Derrick Kuykendall and several companions visited Sixth Street in Austin in the early morning hours of March 31, 2013. In a parking lot, they encountered the victim, Bennie DeSean Heslip, III, along with a group of Heslip's companions. One of Kuykendall's companions and one of Heslip's companions began to argue. During this argument, Heslip approached Kuykendall and, according to one witness, placed his hands on Kuykendall's shoulders. Kuykendall then drew a pistol and fired two shots. The second shot struck Heslip in the chest. Kuykendall and his companions drove away, and Heslip later died of his injuries.
Kuykendall was indicted on two counts of murder. At trial, Kuykendall did not deny that he fired the shot that killed Heslip. Instead, he argued that he was acting in self-defense and did not intend to shoot or kill anyone. Kuykendall made a request that the trial court submit instructions to the jury concerning self-defense and the lesser-included offense of manslaughter, which the trial court granted, as well as a request for an instruction on the lesser-included offense of criminally negligent homicide, which the trial court denied. The jury did not find Kuykendall guilty of murder but did find him guilty of manslaughter. The trial court signed a judgment of conviction that included an affirmative deadly-weapon finding, and this appeal followed.
DISCUSSION
Deadly Weapon
In his first point of error, Kuykendall contends that the trial court erred in failing to submit to the jury a separate question asking the jury to determine whether Kuykendall used or exhibited a deadly weapon.
The State argues that Kuykendall did not timely object to the trial court's failure to submit a separate deadly-weapon question to the jury. Because we conclude below that the trial court did not err, we need not decide whether Kuykendall made a timely objection. --------
"Our first duty in analyzing a jury-charge issue is to decide whether error exists." Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Here, the trial court's instructions to the jury regarding murder and the lesser-included offense of manslaughter both directed the jury to find Kuykendall guilty only if they found that he had "used or exhibited a deadly weapon, to-wit: a firearm," and both counts of the indictment had included an identical deadly-weapon allegation. Therefore, by finding Kuykendall guilty of manslaughter, the jury expressly found that he had used or exhibited a deadly weapon. See Lafleur v. State, 106 S.W.3d 91, 92 (Tex. Crim. App. 2003) (holding that trial court may enter deadly-weapon finding in judgment based on jury's verdict of guilt on lesser-included offense "if the express deadly weapon allegation in that portion of the jury charge matches the deadly weapon allegation in the indictment for the charged offense"); id. at 99 (holding trial court did not err in entering affirmative deadly-weapon finding where indictment alleged that defendant used deadly weapon, "to wit, a firearm," and application paragraph of lesser-included offense of manslaughter required finding that defendant used deadly weapon, "to wit, a firearm"); see also Crumpton v. State, 301 S.W.3d 663, 665 (Tex. Crim. App. 2009) (holding that "the jury's verdict was an adequate basis for the trial court's entry of the affirmative [deadly-weapon] finding in the judgment"); McCallum v. State, 311 S.W.3d 9, 18 (Tex. App.—San Antonio 2010, no pet.) (noting that Crumpton allows "the trial court to find the jury made an affirmative deadly weapon finding by finding the defendant guilty of homicide"). Moreover, Kuykendall has not cited any authority, and we are not aware of any, holding that a defendant is entitled to have the trial court submit the deadly-weapon question to the jury as a special issue. Accordingly, we conclude that the trial court did not err in failing to submit a separate deadly-weapon instruction, and we overrule Kuykendall's first point of error.
Criminally Negligent Homicide
In his second point of error, Kuykendall contends that the trial court erred in failing to instruct the jury on the lesser-included offense of criminally negligent homicide.
"When deciding whether a lesser-included-instruction should have been given, courts must determine whether the offense listed in the requested instruction is actually a lesser-included offense of the offense that the defendant was charged with." Ritcherson v. State, 476 S.W.3d 111, 116 (Tex. App.—Austin 2015, no pet.). "If the reviewing court determines that the offense listed in the requested instruction is a lesser-included offense, the reviewing court must then determine whether the evidence presented during the trial supports the requested instruction." Id.; see Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012) ("First, the court determines if the proof necessary to establish the charged offense also includes the lesser offense. If this threshold is met, the court must then consider whether the evidence shows that if the Appellant is guilty, he is guilty only of the lesser offense.") (citation omitted); see also Tex. Code Crim. Proc. art. 37.09 (defining lesser-included offense).
As the State concedes, criminally negligent homicide is a lesser-included offense of murder. See Jackson v. State, 248 S.W.3d 369, 371 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) ("Criminally negligent homicide is a lesser included offense of murder.") (citing Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992) (per curiam)); see also Glover v. State, No. 03-06-00232-CR, 2007 WL 3306498, at *5 (Tex. App.—Austin Nov. 8, 2007, pet. ref'd) (mem. op., not designated for publication) (stating criminally negligent homicide is lesser-included offense of murder). Therefore, we need only decide "whether there is some evidence from which the jury rationally could have found that, if appellant was guilty, he was guilty only of the lesser offense of criminally negligent homicide." See Jackson, 248 S.W.3d at 371.
A person commits the offense of criminally negligent homicide if he causes the death of an individual by criminal negligence. Tex. Penal Code § 19.05(a). Criminal negligence is characterized by the actor's failure to perceive the risk created by his conduct. See id. § 6.03(d). "If the evidence shows that the defendant's awareness is such that he perceived the risk his conduct created, he is not entitled to a charge of criminally negligent homicide." Glover, 2007 WL 3306498, at *5 (citing Thomas v. State, 699 S.W.2d 845, 850 (Tex. Crim. App. 1985)); see Trujillo v. State, 227 S.W.3d 164, 168 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) ("If the evidence shows that the defendant's awareness is such that he perceived the risk his conduct created, he is not entitled to a charge of criminally negligent homicide.").
The undisputed evidence at trial established that Kuykendall drew a pistol and fired two shots in a crowded parking lot and that the second shot killed Heslip. Although Kuykendall testified that he was merely attempting to get away from Heslip, that he intended to fire a warning shot, that he does not remember firing the second shot, and that he did not intend to shoot anyone, this evidence does not, on its own, entitle him to an instruction on criminally negligent homicide. See Thomas, 699 S.W.2d at 850 (explaining that "the allegation of accidental discharge [does not] necessarily raise the issue" of criminally negligent homicide); Jackson, 248 S.W.3d at 372 ("We are cognizant that appellant's version of the facts characterizes the shooting as an 'accident'; however, a showing of accidental discharge does not necessarily raise the issue of criminally negligent homicide."); Glover, 2007 WL 3306498, at *6 (noting that "accidental discharge alone is not enough to warrant an instruction on criminally negligent homicide"). Furthermore, undisputed evidence established that Kuykendall was aware that firearms are dangerous because he had known victims of gun violence and had himself been seriously injured by a firearm. See Thomas, 699 S.W.2d at 850 ("Evidence that a defendant knows a gun is loaded, that he is familiar with guns and their potential for injury, and that he points a gun at another, indicates a person who is aware of a risk created by that conduct and disregards the risk."). Because nothing in the record before us indicates that Kuykendall did not perceive the risk of discharging a firearm in a crowded parking lot, we conclude that the trial court did not err in failing to instruct the jury on criminally negligent homicide. Accordingly, we overrule Kuykendall's second point of error.
CONCLUSION
Having overruled each of Kuykendall's points of error, we affirm the judgment of conviction.
/s/_________
Scott K. Field, Justice Before Justices Puryear, Goodwin, and Field Affirmed Filed: April 28, 2016 Do Not Publish