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concluding that manslaughter is not a lesser-included offense of felony murder because manslaughter requires a culpable mental state for causing death and felony murder does not
Summary of this case from Harris v. StateOpinion
No. 05-08-00621-CR
Opinion issued July 31, 2009. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 195th Judicial District Court Dallas County, Texas, Trial Court Cause No. F08-00190-WN.
Before Justices MORRIS, WRIGHT, and BRIDGES.
MEMORANDUM OPINION
Jeremy Zavala appeals his conviction for felony murder. After finding appellant guilty, the jury assessed punishment, enhanced by a prior felony conviction, at 35 years' confinement. In six points of error, appellant generally contends the trial court erred by: (1) denying his requests for certain jury instructions; (2) submitting an erroneous application paragraph in its charge; (3) admitting certain evidence; (4) allowing certain jury argument; and (5) overruling his motion to quash the indictment. We overrule appellant's points of error and affirm the trial court's judgment. In his first point of error, appellant contends the trial court erred by denying his request for an instruction on the lesser-included offense of manslaughter. We follow a two-pronged test to determine if the trial court should have given a jury charge on a lesser-included offense. Hall v. State, 225 S.W.3d 524, 535-36 (Tex.Crim.App. 2007). We first determine if the proof necessary to establish the charged offense includes the lesser offense. Id. at 535-36. If it does, we then review the evidence to determine that if appellant is guilty, he is guilty only of the lesser offense. Id. at 536. In Hall, the Texas Court of Criminal Appeals clarified the analysis applicable to the first step in identifying a lesser-included offense under code of criminal procedure article 37.09. Id. at 525-36. The court adopted the "pleadings approach," requiring a comparison of the elements of the greater offense, as pleaded by the State in the charging instrument, with the elements in the statute defining the lesser offense. See id. Under article 37.09, the uncharged offense is a lesser-included offense of the charged one if it "is established by proof of the same or less than all the facts required to establish the commission of the offense charged," or "differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission." Tex. Code Crim. Proc. Ann. art. 37.09(1), (3) (Vernon 2006). Relying on Cardenas v. State, 30 S.W.3d 384 (Tex.Crim.App. 2000), appellant maintains he satisfies the first prong of the test because manslaughter is a lesser-included offense of murder. However, unlike the appellant in Cardenas who was charged with capital murder, id. at 386, appellant was indicted for felony murder with felony evading arrest as the underlying felony. Felony murder does not require, and appellant was not indicted with, a culpable mental state for causing Rodriguez's death. See Lomax v. State, 233 S.W.3d 302, 307 (Tex.Crim.App. 2007) (overruling that portion of Rodriquez v. State, 548 S.W.2d 26 (Tex.Crim.App. 1977), holding "that a culpable mental state is required for `the act of murder' in a felony-murder prosecution and that the mental state of the underlying felony supplies this culpable mental state"). In contrast, the statutory elements of manslaughter require proof that appellant recklessly caused Rodriguez's death. See Tex. Penal Code Ann. § 19.04 (Vernon 2003). As explained in Lomax, felony murder attaches no culpable mental state to the death of an individual. See Lomax, 223 S.W.3d at 306-07. Therefore, manslaughter actually requires proof of a higher culpable mental state for the death of an individual than felony murder requires. As such, the elements of the requested lesser-included offense are not established by proof of the same or less than all of the facts required to establish the commission of the charged offense, nor does the proposed lesser-included offense differ from the offense charged only in the respect that a less culpable mental state suffices to establish its commission. Thus, we conclude manslaughter is not a lesser-included offense of felony murder and the trial court did not err by denying appellant's request to instruct the jury on manslaughter. We overrule appellant's first point of error. In his second point of error, appellant contends the trial court erred by not instructing the jury on the underlying felony of evading arrest as a lesser-included offense. Again, we disagree. As discussed above, we apply a two-prong test to determine whether an appellant is entitled to a lesser-included offense instruction. See Hall, 225 at 535-36. Both prongs must be met. See id.; Hampton v. State, 109 S.W.3d 437, 440 (Tex.Crim.App. 2003). When considering the second prong, some evidence directly germane to a lesser-included offense must exist for the jury to consider before an instruction on a lesser-included offense is warranted. Bignall v. State, 887 S.W.2d 21, 24 (Tex.Crim.App. 1994). It is not sufficient that the jury may disbelieve crucial evidence pertaining to the greater offense. Hampton, 109 S.W.3d at 441; Bignall, 887 S.W.2d at 24. Here, the State's evidence showed appellant was driving erratically, cutting in and out of traffic at a high rate of speed, while being pursued by the police. Rodriguez was in his pickup truck and had a green light. As he pulled into the intersection to make a left hand turn, appellant ran a red light, and with no attempt to brake, crashed into the side of Rodriguez's pickup. Rodriguez was ejected through the passenger window and died at the scene. Although appellant contends the evidence shows the accident may have been caused by Rodriguez because of the "possibility" Rodriguez disregarded a green turn arrow and because his death was caused by his failure to wear a seatbelt, we disagree. It is undisputed appellant ran a red light and collided with Rodriguez's truck while Rodriguez was attempting a left-hand turn with a green light. But for running the red light, appellant would not have collided with Rodriguez, and but for the collision, Rodriguez would not have been thrown from the truck. Because no affirmative evidence exists in the record showing appellant committed only the offense of evading arrest, we conclude the evidence failed to raise the possibility that appellant, if guilty at all, was guilty only of the lesser-included offenses. See Hampton, 109 S.W.3d at 441; Bignall, 887 S.W.2d at 24. Thus, we conclude the trial court did not err by denying appellant's request for lesser-included offense instructions on evading arrest. We overrule appellant's second point of error. In his third point of error, appellant contends we must reverse his conviction because the trial court committed egregious error by submitting an application paragraph that included a lesser-mental state than required to convict appellant. After reviewing the record, we cannot conclude the trial court's error was egregious. A person commits the offense of evading arrest if he intentionally flees from a person he knows is a police officer attempting to lawfully arrest or detain him. Tex. Penal Code Ann. § 38.04(a) (Vernon 2003). Because the offense required appellant to act intentionally, the trial court erred by authorizing the jury to convict appellant if he acted intentionally or knowingly. However, jury charge error does not automatically result in reversal. Appellant did not object to the charge at trial, thus, he must now show he suffered egregious harm. Almanza v. State, 686 S.W.2d 157, 171-74 (Tex.Crim.App. 1984). Harm is egregious only if it deprives a defendant of a "fair and impartial trial." Neal v. State, 256 S.W.3d 264, 278-79 (Tex.Crim.App. 2008), cert. denied, 129 S.Ct. 1037 (2009). To determine egregious harm, we examine the entire jury charge, the state of the evidence, including the contested issues and weight of the probative evidence, the arguments of counsel, and any other relevant information revealed by the record of the trial as a whole. Warner v. State, 245 S.W.3d 458, 462 (Tex.Crim.App. 2008). A defendant must have suffered actual, rather than theoretical, harm. Id. Errors that result in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. Id. After our examination of the record, we conclude appellant was not deprived of a fair and impartial trial. The record shows that "intentionally" was the only culpable mental state argued at trial. Further, there was testimony appellant's act in evading arrest was intentional and no evidence that his mental state was less culpable. Finally, appellant did not present a defensive theory that involved a lack of intent in evading arrest. Thus, appellant's exact culpable mental state regarding evading arrest was not an issue in the trial. Having examined the record, we cannot say the complained-of error was so egregious and created such harm that appellant was denied a fair trial, thus warranting reversal. See Alvarado, 912 S.W.2d at 216-17. We overrule appellant's third point of error. In his fourth point of error, appellant contends the trial court abused its discretion by admitting "irrelevant emotional impact evidence." The State responds the complained-of evidence was not victim impact evidence, but rather a responding officer's testimony regarding having viewed a violent death. The State, however, concedes the evidence was irrelevant but maintains it was not harmful. We will assume the trial court erred by admitting the complained-of evidence. We do not reverse a ruling based on non-constitutional error that does not affect "substantial rights." Tex. R. App. P. 44.2(b). If, after examining the record as a whole, we determine that any error had a slight or no effect on the jury, then we will not overturn the trial court's ruling. Neal, 256 S.W.3d at 284; Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). The court of criminal appeals has observed that the presence of overwhelming evidence of guilt plays a determinative role in this analysis. Neal, 256 S.W.3d at 284; Motilla v. State, 78 S.W.3d 352, 356 (Tex.Crim.App. 2002). Assuming the trial court erred in admitting Schimdt's testimony that the accident was "pretty graphic," Schimdt had never seen anyone killed before and he had "some bad dreams" about it, such error was harmless in light of the overwhelming evidence of guilt in the record. We overrule appellant's fourth point of error. In his fifth point of error, appellant contends the trial court erred by overruling his objection to the State's closing argument. In particular, appellant complains of the following statement by the State: "In response to the defense argument and why he wasn't called, it had nothing to do with he (sic) had any bad evidence. Folks, I could have marched in ten other Grand Prairie police officers to tell you . . .". The law provides for and presumes a fair trial free from improper argument by the State. Long v. State, 823 S.W.2d 259, 267 (Tex.Crim.App. 1991). Proper jury argument encompasses one of the following: (1) an answer to the opposing counsel's argument; (2) a summation of the evidence presented at trial; (3) a reasonable deduction drawn from that evidence; or (4) a plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000). To determine whether a party's argument falls within one of these categories, we must consider the argument in light of the entire record and consider the remarks within the context in which they appear. Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App. 1988); Sandoval v. State, 52 S.W.3d 851,857 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd). Here, the record shows that Officer Jeff Askin testified there were two police cars and a constable's car involved in the chase. When Askin arrived at the scene, there were "quite a few plainclothes officers there in the immediate area." Deputy Constable Mike Schmidt testified he and about ten other officers in plainclothes had just walked out of a restaurant after having lunch when he saw the accident. During closing argument, defense counsel argued that the jury had not "even heard from [Officer Poor], who is the second officer that was in the chase-and why haven't we heard from him"? . . . It's a reasonable deduction from the evidence that if they didn't call him, they didn't put his video in then it's not good for them." On appeal, the State contends the complained-of comment was proper because it was aimed at answering defense counsel's argument, namely correcting defense counsel's statement that the State did not call additional police officers because their testimony would not have been "good for them." We agree. It is well-settled that a prosecutor may answer the jury argument of opposing counsel provided that the response does not exceed the scope of the invitation. See Andujo v. State, 755 S.W.2d 138, 144 (Tex.Crim.App. 1988). And, Schmidt testified he and about ten other officers had just walked out of a restaurant after having lunch when he saw the accident. Thus, the prosecutor's statement did not inject any new or harmful facts and was proper jury argument. See Howard v. State, 153 S.W.3d 382, 358 (Tex.Crim.App. 2004). We overrule appellant's fifth point of error. In his sixth issue, appellant contends the trial court erred by denying his motion to quash the indictment. According to appellant, the merger doctrine bars his prosecution for felony murder because proof of the underlying felony of evading arrest was established by proof of the same facts required to prove manslaughter. We disagree. In Johnson v. State, 4 S.W.3d 254 (Tex.Crim.App. 1999), the court of criminal appeals explained that the merger doctrine "exists only to the extent consistent with section 19.02(b)(3)," and it stands "only for the proposition that a conviction for felony murder under section 19.02(b)(3), will not lie when the underlying felony is manslaughter or a lesser-included offense of manslaughter." Id. at 258. Here, the underlying felony is felony evading arrest, not manslaughter or a lesser-included offense of manslaughter. Thus, we conclude appellant's argument lacks merit. We overrule appellant's sixth point of error. Accordingly, we affirm the trial court's judgment.
Appellant was indicted as follows:
unlawfully, then and there intentionally and knowingly commit and attempt to commit the felony offense of EVADING ARREST IN A MOTOR VEHICLE and while in the course of and in furtherance of the commission of and attempt to commit said offense, did then and there commit an act clearly dangerous to human life, to-wit: BY OPERATING A MOTOR VEHICLE, A DEADLY WEAPON, WHILE FAILING TO STOP AT A TRAFFIC CONTROL DEVICE AND WHILE DRIVING ON THE SHOULDER OF THE ROAD AND DID FAIL TO STOP WHILE A POLICE OFFICER WAS ATTEMPTING TO LAWFULLY DETAIN SAID DEFENDANT AND DID THEREBY CAUSE THE MOTOR VEHICLE OPERATED BY SAID DEFENDANT TO COLLIDE WITH ANOTHER MOTOR VEHICLE OCCUPIED BY ADAM RODRIGUEZ, JR., which caused the death of an individual, Adam Rodriguez, Jr.