Opinion
04-22-00463-CR
12-13-2023
Austin Ray SMALL, Appellant v. The STATE of Texas, Appellee
Do Not Publish
From the 198th Judicial District Court, Bandera County, Texas Trial Court No. CR21-0000049 Honorable M. Rex Emerson, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Luz Elena D. Chapa, Justice Beth Watkins, Justice
MEMORANDUM OPINION
LUZ ELENA D. CHAPA, JUSTICE
Appellant Austin Ray Small challenges his judgment of conviction for murder. He argues the trial court erred by (1) failing to instruct the jury on the lesser included offenses of manslaughter and criminally negligent homicide, and (2) permitting the State to improperly comment on the application of parole law during the punishment phase of his trial. We affirm.
Background
After Small and his ex-girlfriend, Kristen Francis met to exchange their daughter on January 31, 2021, Francis's boyfriend, Zachary Bower, arrived to the location in an SUV. Shortly thereafter, Small and Bower got into a physical altercation, and Bower fell to the ground face down. Small then shot Bower in the back of the head. Small was charged with murder. See Tex. Penal Code § 19.02. A jury found Small guilty and sentenced him to forty-five years' confinement with the Texas Department of Criminal Justice Correctional Institutions Division.
This appeal followed.
Lesser Included Offense Charge
Small argues the trial court erred by failing to instruct the jury on the lesser included offenses of manslaughter and criminally negligent homicide.
A. Standard of Review and Law
"We review a trial court's refusal to submit a [lesser-included offense (LIO)] instruction for an abuse of discretion." Chavez v. State, 666 S.W.3d 772, 776 (Tex. Crim. App. 2023). "Whether a defendant is entitled to a LIO instruction turns on a two-part test." Id. "First, we compare the statutory elements of the alleged lesser offense with the statutory elements of the greater offense and any descriptive averments in the indictment." Id. "If proof of the lesser offense is included within proof of the greater offense, the first step has been satisfied." Id. See generally Tex. Code Crim. Proc. art. 37.09 ("An offense is a lesser included offense if: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense.").
"Second, there must be evidence from which a rational jury could find the defendant guilty of only the lesser offense." Chavez, 666 S.W.3d at 776. "We have said that the guilty-only requirement is met if there is affirmative evidence of a factual dispute that raises the lesser offense and rebuts or negates other evidence establishing the greater offense." Id.; see, e.g., Ritcherson v. State, 568 S.W.3d 667, 671 (Tex. Crim. App. 2018) ("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.").
"It does not matter if the factual dispute is based on direct or circumstantial evidence so long as a rational jury could interpret the record in a way in which it could find the defendant guilty of only the lesser-included offense." Chavez, 666 S.W.3d at 776. "We consider all the evidence admitted at trial." Id. at 776-77. "The evidence raising the lesser offense must be affirmatively in the record." Ritcherson, 568 S.W.3d at 671. "Even a scintilla of evidence is sufficient, no matter how controverted or incredible." Chavez, 666 S.W.3d at 777. "But the evidence must be directly germane to the LIO and present the LIO as a valid, rational alternative to the greater offense." Id. In other words, "the second prong of the lesser-offense test is met 'only if there is evidence which, if believed, refutes or negates every theory which elevates the offense from the lesser to the greater.'" Ritcherson, 568 S.W.3d at 671 (quoting Arevalo v. State, 970 S.W.2d 547, 548 (Tex. Crim. App. 1998) (per curiam)). "[I]f the defendant presents evidence that he committed no offense at all . . . or if he presents no evidence . . ., and there is no evidence otherwise raising the issue, a charge on [a] lesser offense . . . is not required." Chavez, 666 S.W.3d at 777 (alterations in original).
Each of the offenses of murder, manslaughter, and criminally negligent homicide constitute criminal homicide as defined in the Texas Penal Code. See Tex. Penal Code § 19.01. Small was charged with and convicted of murder. A person commits murder by (1) "intentionally or knowingly causing the death of an individual"; (2) "intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual"; (3) "commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance" thereof, "or in immediate flight," "the person commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual; or" (4) "knowingly manufactures or delivers a controlled substance" identified under certain enumerated statutes "and an individual [overdoses on] . . . any amount of the controlled substance." Tex. Penal Code § 19.02.
A person commits manslaughter if the person recklessly causes the death of an individual. See id. § 19.04. "A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur." Id. § 6.03(c). "The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint." Id.
A person commits criminally negligent homicide if the person causes the death of an individual by criminal negligence. See id. § 19.05. A person is criminally negligent "with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur." See id. § 6.03(d). "The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint." Id.
B. The Evidence
The State concedes manslaughter and criminally negligent homicide are lesser-included offenses of murder, resolving the first step. The only question, then, is whether there is some evidence in the record that would permit a jury to rationally find Small guilty of only manslaughter or only criminally negligent homicide. See Chavez, 666 S.W.3d at 776.
"A trial judge's job under the guilty-only prong is to consider the admitted evidence and determine whether it is sufficient to support submission of a LIO instruction." Id. at 778. "In assessing the sufficiency of the evidence for that purpose, a trial judge's duty is not much different than when it comes to other defensive issues." Id. "A trial judge 'must rely on [his] own judgment, formed in the light of [his] own common sense and experience' to determine whether the evidence and rational inferences that can be drawn therefrom justify submission of a LIO instruction." Id. (alterations in original) (quoting Shaw v. State, 243 S.W.3d 647, 658 (Tex. Crim. App. 2007)). "In doing so, a trial judge does not usurp the fact finder's authority to weigh the evidence. He merely fulfills his duty to, upon request, determine if the lesser offense is 'law applicable to the case.'" Id. (quoting Tex. Code Crim. Proc. art. 36.14).
Thus, Small was entitled to a LIO instruction for manslaughter or criminally negligent homicide if there is some evidence in the record to permit a jury to rationally find Small only engaged in conduct that caused Bower's death while (1) being aware of but consciously disregarding a substantial and unjustifiable risk Bower's death would occur (manslaughter) or (2) he ought to have been aware of such a substantial and unjustifiable risk Bower's death would occur (criminally negligent homicide). See Tex. Penal Code §§ 19.02, 19.04-.05.
Turning to the evidence presented at trial, Francis testified she and Small had been in a previous relationship. She further testified without objection, that after she and Small broke up, he became aggressive and violent when she was with other men. On one occasion, while with a date at her home, Small entered the home uninvited through a backdoor armed with a bat, and he chased her date out of the house. On a separate occasion, while dropping off their daughter, Small, accompanied by another woman, arrived at Francis's apartment at the same time Francis's known date arrived; Small saw the date and pointed a gun at him. Francis and the woman accompanying Small eventually convinced Small to return to the car to leave.
She testified she did not report to the police Small was armed.
On the day of the incident, Francis and Small had agreed to meet at an auto body shop on Houston Street in Bandera so Small could return their daughter to her. Francis planned for Bower to drop her off one street over on Beaumont Street; she would then walk to the shop, retrieve her daughter, and leave. As she walked toward the shop to meet Small, she planned to keep Bower on a video call on her phone. When she approached the shop, Small pulled up and told her to "hop in"; Francis stated he appeared calm at that moment. As she reached the truck for the exchange, Small blocked their daughter's passenger door and asked Francis where her car was and why she was acting "shady." Small and Bower then exchanged their daughter. At some point, she noticed her video call with Bower had ended. She then noticed Bower in the SUV approaching Small's truck and Francis; Bower "seemed frustrated."
Then, Small exited his truck and ran to the driver's side of Bower's SUV, and shortly after, Small and Bower pointed guns at each other. Eventually, Bower exited the SUV unarmed, and Francis began yelling at Bower to get back into the SUV. Bower complied, and Francis walked toward the SUV with her daughter, so she could put her daughter in the back seat. Francis then told Bower-who had returned to the driver's seat-to move over to the passenger side so she could drive. During this time, Small was standing outside the SUV calling her names and yelling at her. Bower then exited the SUV to change seats, and the SUV started to roll backwards because Bower had not placed it in the park position. Small and Bower then scuffled, and Small struck Bower with his gun. As Francis attempted to place the SUV in park, she heard a gun "go off." She looked over and saw Bower lying face down on the ground and underneath the driver's door. At that point, Bower tried to push himself up, but Small went up to him, "hopped twice," extended his arms, and shot Bower "in the back of the head." When Small shot Bower, there was "some distance" between them; Small did not fire the gun on contact. Small then "seemed like he was maybe tucking the gun into his pants" and then fled in his truck.
On cross-examination, Francis was adamant Bower did not exit the vehicle with his firearm. She specifically remembered watching him get out of the vehicle, "situate[e] his clothes," and put his ball cap on.
Cheryl Boynton witnessed the incident while at the auto body shop. She testified she did not witness the entire incident, but she did see Small and Francis exchange their daughter. At some point she saw Bower driving a white SUV down Houston Street toward the auto body shop and saw Francis walking toward the SUV with her daughter. She then saw Small approach the SUV, and she observed him exchanging words with Bower, but she could not hear what they were saying.
She said Small and Bower eventually got into a physical altercation and Bower fell to the ground. Boynton testified that as she saw Bower on the ground, she was concerned the SUV would run him over because it was moving in reverse. She further testified Small did not have the gun at first. She recalled him saying to Bower "if you think that's a gun then I'll show you" or something to that effect and then Small returned to his truck to retrieve his gun. She conceded, after watching the auto body shop surveillance video, she did not observe Small return to his truck to retrieve his gun, but she was "almost 100 percent positive" he did so. She testified she did not see whether Bower had a firearm but did hear "a different gun sound." Small, now armed, continued to argue with Bower. Eventually, Small, who was a few feet from Bower, "shot [Bower] or shot at him" while Bower laid on the ground. While Small was returning to his truck, Boynton asked him if he shot Bower, and Small denied it. Small then fled the scene in his truck. On cross-examination, she conceded because the SUV had both the driver's door and the driver-side passenger door open, they were partially blocking her view of what happened and she could not see very well.
Texas Ranger Daniel McMillon testified the Bandera County Sheriff's Office requested his assistance in connection with the incident. He testified he secured the grainy surveillance camera footage from the auto body shop located adjacent to where the incident took place; the surveillance video came from a business owned by Small's father. He testified about his observations: the video shows Francis and Small exchanging their daughter; Bower's SUV is then seen arriving closer to the point of exchange; Small is then seen blocking the roadway with his truck; Small is holding a gun in his hands with his arms extended. Bower's vehicle then moves out of the frame; shortly thereafter Small is seen running to his truck.
The video, which was admitted into evidence, is consistent with Texas Ranger McMillon's testimony.
Bandera County Sherriff's Office Sergeant Matthew Jacobsen testified he responded to the scene and spoke with Francis who only remembered Small firing two shots with his firearm and hearing a "pop, pop" sound. Sergeant Jacobsen also testified Francis told him Small had struck Bower with the gun. He further testified Francis observed that after she heard the gunshots Small had a "surprised" look on his face.
Sergeant Kasey Young of the Bandera County Sherriff's Office testified similarly to Sergeant Jacobsen. And their testimony is supported by the testimony of Texas Department of Public Safety State Trooper Scott Shinar and the footage in his body camera, which was admitted into evidence.
Bandera County Sheriff's Office Investigator Gerald Johnson testified that when he arrived to the scene, officers found two nine-millimeter shell casings on the ground in front of the SUV, a bullet hole in the SUV's rocker panel consistent with a nine-millimeter firearm, and a Ruger single 6, .22 revolver in a leather holster in the driver's door pocket. The revolver contained all six rounds, unfired. Photographs of the scene introduced without objection during his testimony confirmed Investigator Johnson's testimony.
They also show Small's pistol-retrieved later.
Medical Examiner Dr. James Feig of the Bexar County Medical Examiner's Office testified Bower died of a gunshot wound to the back of the head. A close examination of the back of Bower's head shows lacerations consistent with being struck by a pistol, but the lacerations did not fracture the skull and would not cause death. Dr. Feig further testified the bullet entry wound to the back of the skull took a "starlike appearance" which is explainable by one of two possibilities. First, a contact entry wound could cause a starlike appearance, meaning the gun's muzzle was held against Bower's head "when it[] [was] fired, and that would also account for the blackening of the wound edges as the hot gases go into the head in this case leaving some seared margin." The other possibility is the exact point where the bullet entered the skull had two pre-existing lacerations in the same spot and the bullet went through them from a distance of approximately two-and-a-half feet or more. On cross-examination, Dr. Feig conceded he could not definitively say how far Small was when he fired the bullet that entered Bower's skull.
Dr. Feig testified the bullet exited just above the left ear.
Dr. Feig also testified methamphetamines were present in Bower's system.
Timothy Counce-a Senior Forensic Scientist Firearms and Toolmark Examiner with the Texas State Department of Public Safety Crime Laboratory-testified he tested Small's pistol and two shell casings. He testified, among other things, the firearm was a single action and double-action. The single-action-which involves the manual cocking of the firearm's hammer-requires six pounds of force to pull the trigger. The double-action-which simply involves pulling the trigger to fire-requires eleven to twelve pounds of force. Counce added the force required to pull these triggers were within the expected range of force required. He further testified the firearm had internal and external safety features that did not permit it to fire without the trigger being fully pulled to the rear.
C. Analysis
Small contends there is evidence showing he hit Bower with his gun, and as a result, the gun accidentally fired. We agree the evidence in the record shows Small hit Bower with the gun on the back of the head. There is no evidence in the record, however, intimating the gun accidentally fired upon one of these blows, causing a bullet to enter the back of Bower's head. The senior forensic scientist firearms and toolmark examiner testified the safety features on Small's gun were designed so as not to fire without the trigger having been fully pulled to the rear. And both witnesses on the scene, Francis and Boynton, testified Small was at least a few feet away from Bower when Small shot him in the back of the head. See Chavez, 666 S.W.3d at 777 (providing "mere disbelief of evidence establishing commission of the greater offense is insufficient by itself to justify submission of a LIO instruction. This is because the disbelief of evidence is not evidence." (citation omitted)); see also Ransier v. State, 670 S.W.3d 646, 651 (Tex. Crim. App. 2023) (stating same, quoting Chavez). And while Small's counsel argued at trial the gun "went off" during one of these blows to the back of the head, citing the medical examiner's testimony, the medical examiner testified, during cross-examination, he could not determine whether the shot was fired on contact with the skull or from distance.
Small also points to evidence from Boynton stating she did not witness the actual shooting. But Small does not dispute Francis witnessed it, and she plainly and unequivocally testified Small shot Bower in the back of the head. The fact that Small may have appeared "surprised" after shooting Bower in the back of the head does not rebut or negate the evidence in the record showing at the time Small shot Bower, he intended to cause serious bodily injury to Bower or to kill him. See Chavez, 666 S.W.3d at 777 ("None of the evidence cited by Appellant, much of which was also cited by the court of appeals, rebuts or negates the evidence that Appellant had the intent to kill when the victims were killed."). Nor does it show Small, at the time he fired a bullet into the back of Bower's head, consciously disregarded a substantial and unjustifiable risk Bower's death would occur (manslaughter) or Small ought to have been aware of such a substantial and unjustifiable risk Bower's death would occur. See Schroeder v. State, 123 S.W.3d 398, 401 (Tex. Crim. App. 2003) (providing statements by appellant that "[i]t was an accident" and "I did not mean to" relevant to self-defense but does not allow a finding of recklessness).
We therefore find no affirmative evidence of a factual dispute that raises the lesser offense and rebuts or negates other evidence establishing the greater offense. See Chavez, 666 S.W.3d at 776; see also Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012) ("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."); see also Ransier, 670 S.W.3d at 651 (concluding because "record fail[ed] to meet the 'guilty only' prong of the test," with respect to offense, "[a]ppellant was not entitled to submission of the lesser offense"). Accordingly, based on the evidence admitted at trial, we cannot conclude the trial court abused its discretion by failing to submit instructions on the lesser-included offenses of manslaughter and criminally negligent homicide to the jury. See Chavez, 666 S.W.3d at 776.
Closing Argument
Small argues the State improperly commented on the application of parole law during the punishment phase of his trial, and a timely objection was not required to preserve error because the prosecutorial argument is so prejudicial an instruction to disregard the argument could not cure the harm.
"A claim that a prosecutor's closing argument exceeded the bounds of proper jury argument is subject to procedural default." Hall v. State, 663 S.W.3d 15, 38 (Tex. Crim. App. 2021) (citing Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996)). "To preserve error on these kinds of claims, a defendant must make a timely objection stating the grounds for his desired ruling with sufficient specificity to make the trial court aware of the claim, unless the specific grounds were apparent from the context." Id.; see Tex. R. App. P. 33.1(a)(1)(A). "Magic words are not required," however, a defendant must "'let the trial judge know what he wants [and] why he thinks himself entitled to it,' and he must 'do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.'" Hall, 663 S.W.3d at 38 (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)).
Small cites Harris v. State for the proposition he was not required to object or secure an adverse ruling.784 S.W.2d 5, 12 (Tex. Crim. App. 1989). However, Harris was overruled by the Court of Criminal Appeals in Cockrell, 933 S.W.2d at 89; see also Grado v. State, 445 S.W.3d 736, 741 n.29 (Tex. Crim. App. 2014) (identifying improper jury argument as Marin v. State 851 S.W.2d 275 (Tex. Crim. App. 1993) category three, forfeitable right subject to Texas Rule of Appellate Procedure 33.1, citing Cockrell).
During closing argument, the prosecutor contended:
I don't want to propose to you that, you know, a life for a life or anything like that. What I want to propose to y'all is take into consideration everything that we have talked about that I pointed out and just weigh that. He's young enough to, whatever sentence you give him, he will get out and still have a life at some point. If you give him -- it goes, you're available for parole up to a 30-year mark, and then no matter what your sentence is, as high as your sentence goes, 30 years he is going to be eligible for parole, okay. So if he is 22 or 23, 24, 25 right now, in 30 years he is 55 years old. I was a history major. Fifty-something years old. You see what I'm getting at? He still has a life where he foreseeably has years where he can still be productive hopefully in some manner. That's something to take into consideration.
Defense counsel did not object. Accordingly, Small has failed to preserve error, and his second point of error is overruled. See Tex. R. App. P. 33.1(a)(1)(A); Hall, 663 S.W.3d at 38.
Conclusion
The judgment is affirmed.