No. 05-09-00023-CR
Opinion Filed July 9, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F07-60469-WM.
Before Justices BRIDGES, FITZGERALD, and FILLMORE.
Opinion By Justice FILLMORE.
A jury convicted Brandon Antwone Walker of murder and sentenced him to forty years' incarceration. In three points of error, Walker asserts (1) the trial court erred by not instructing the jury on the lesser-included offense of deadly conduct, (2) the evidence is factually insufficient to support the conviction, and (3) the trial court erred by admitting a recording of a telephone conversation during the punishment phase of the trial. We affirm the trial court's judgment.
Background
On December 19, 2007, Tommy Fobbs was shot and killed in an alley off Forest Lane. Walker admitted at trial that he fired the shots that killed Fobbs. Accordingly, we do not recite the extensive evidence in the record offered to prove Fobbs was killed and that Walker was responsible for Fobbs's death. Rather, we set out only the evidence necessary to address Walker's complaints on appeal. Andra Lewis-Krick, a crime scene investigator, collected evidence from the alley where Fobbs was shot. Among other evidence, Lewis-Krick collected five fired cartridge cases and a fired bullet. An autopsy showed Fobbs had been shot four times-twice in the chest, once through the finger, and once through the forearm. One of the shots to the chest caused Fobbs's death. Both Fobbs's and Walker's clothes were sampled for DNA testing. Fobbs's clothes contained seminal fluid belonging to Fobbs. Walker's clothes contained seminal fluid belonging to Walker. Annette Fobbs, Fobbs's wife, testified Walker and Fobbs met at a recreation center and had been friends for four or five years prior to Fobbs's death. According to Mrs. Fobbs, Walker and Fobbs did not "hang out" a lot. Rather, whenever Walker needed a ride or a "little help," he would call Fobbs. Mrs. Fobbs believed Fobbs was trying to get Walker on the "right track." Walker testified that when he was seventeen-years-old, he was standing at a bus stop. Fobbs drove past, made a u-turn, and asked if Walker needed a ride. According to Walker, he quickly determined Fobbs was homosexual. Fobbs offered to pay Walker if he would allow Fobbs to perform oral sex on him. Because he did not have any money, Walker agreed. Fobbs and Walker began meeting approximately three times per week. Fobbs would contact Walker or, if Walker needed money or a ride, he would contact Fobbs. Walker testified nobody knew about his sexual relationship with Fobbs. In 2005, Walker was charged with aggravated robbery and aggravated assault and held in jail. On June 19, 2007, Walker was placed on probation for both offenses and began living with his great-aunt. Approximately six weeks later, Walker called Fobbs and resumed their relationship. Three months after his release, Walker's great-aunt refused to allow him to continue living with her. According to Walker, Fobbs then offered him a place to live. Walker testified he believed Fobbs was trying to help him. However, after staying at Fobbs's house one night in October 2007, Walker decided Fobbs's offer was intended to make it more convenient for them to continue their sexual relationship. Although Walker and Fobbs met with Walker's probation officer about Walker living with Fobbs, Walker never returned to Fobbs's house. Walker did not want to continue "that kind of relationship" with Fobbs, but continued to see Fobbs because he needed money and rides. He was also selling marijuana and testified Fobbs was an occasional customer. However, whenever Fobbs gave Walker a ride somewhere, Walker started "brushing him off" to avoid any sexual contact. According to Walker, the two men had sexual contact only two times in the two months before Fobbs's death. Walker could not recall who initiated the contact on December 19, but testified he and Fobbs agreed to get together, "do a little" drinking and smoking, and ride around. Fobbs bought beer and picked Walker up between 4:00 and 4:20 p.m. In his pocket, Walker had a loaded gun that he had purchased three days before to protect himself while he was selling marijuana. When asked why he brought the gun to the meeting with Fobbs, Walker responded "just cause." The two men drove around drinking and smoking for a couple of hours, and Walker thought they were just "hanging out." Walker was drinking his third twenty-four ounce beer when Fobbs pulled into the alley and parked the car. According to Walker, Fobbs then suggested a sexual act, but Walker told Fobbs that he did not feel like it. Walker got out of the car because he did not feel well due to the alcohol and began having a "gagging reflex." Fobbs eventually got out of the car and asked Walker if he was all right. Fobbs placed his hand on Walker's shoulder. When Walker stood up, Fobbs kissed him. Walker testified Fobbs had tried to kiss him on previous occasions, but he "wasn't into that, you know that wasn't the [sic] part of the arrangements or the way we did things." Walker pushed Fobbs away. Walker testified Fobbs forced himself on Walker, trying to kiss him. He told Fobbs no, but Fobbs kept trying to kiss him. Walker admitted Fobbs had been patient with Walker's refusal to engage in sexual activity and had never been violent towards or threatened Walker. Walker claimed, however, that he was getting "vibes" that Fobbs was frustrated. Fobbs was bigger than Walker, and Walker was terrified and decided to protect himself. Walker pulled the gun from his pocket and started firing. According to Walker, he was not trying to shoot Fobbs, but wanted to scare Fobbs and "get him off me." Walker was three or four feet away from Fobbs at the time of the shooting. Walker testified that he turned his head and squinted his eyes while firing the gun. Walker did not recall how many shots he fired at Fobbs. Because Fobbs got in his car and drove away, Walker did not believe he shot Fobbs. The jury charge initially included murder and the lesser-included offense of manslaughter. Walker requested the trial court also instruct the jury on the lesser-included offenses of criminally negligent homicide and deadly conduct. The trial court gave the criminally negligent homicide instruction, but denied Walker's request for an instruction on deadly conduct. The jury convicted Walker of murder and this appeal ensued. Jury Charge
In his first point of error, Walker contends the trial court erred by failing to charge the jury on the lesser-included offense of deadly conduct. Our first duty in analyzing a jury-charge issue is to decide whether error exists. Sakil v. State, 287 S.W.3d 23, 25 (Tex. Crim. App. 2009). If we conclude there is error in the charge and the defendant timely objected to the error, we reverse the conviction if the defendant suffered some actual harm as a result of the error. Id. at 25-26; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g); see also Tex. Code Crim. Proc. Ann. art. 36.15 (Vernon 2006) (jury charge error preserved when defendant requests instruction and trial court modifies charge without including requested instruction). In evaluating whether the defendant suffered some actual harm, we consider the entire jury charge, the evidence, counsel's arguments, and any other relevant information in the record. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006); Almanza, 686 S.W.2d at 171. A defendant is entitled to a lesser-included offense instruction if the lesser-included offense is included within the proof necessary to establish the charged offense and there is some evidence in the record that if the defendant is guilty, he is guilty only of the lesser-included offense. Young v. State, 283 S.W.3d 854, 875 (Tex. Crim. App.) (per curiam), cert. denied, 130 S. Ct. 1015 (2009). Here, the State concedes in its brief that deadly conduct is a lesser-included offense of murder and that "it appears the evidence raised the issue of deadly conduct." The State argues, however, that Walker was not harmed by the omission of the instruction. Assuming, without deciding, that the trial court erred by failing to instruct the jury on deadly conduct, we agree with the State. As charged in this case, the jury could find Walker guilty of murder, a first degree felony, only if the State proved beyond a reasonable doubt that he intentionally or knowingly caused Fobbs's death by shooting Fobbs with a firearm. See Tex. Penal Code Ann. § 19.02(b)(1), (c) (Vernon 2003). If the jury did not find Walker guilty of murder, it could find him guilty of manslaughter, a second degree felony, if it believed he recklessly caused Fobbs's death. See id. § 19.04(a), (b). Finally, the jury could find Walker guilty of criminally negligent homicide, a state jail felony, if it believed he caused Fobbs's death by criminal negligence. See id. § 19.05(a), (b). Both manslaughter and criminally negligent homicide are lesser-included offenses of murder. Cardenas v. State, 30 S.W.3d 384, 392 (Tex. Crim. App. 2000). Walker asserts he was also entitled to an instruction on misdemeanor and third degree felony deadly conduct. A person is guilty of misdemeanor deadly conduct if he recklessly engages in conduct that places another in imminent danger of serious bodily injury. Tex. Penal Code Ann. § 22.05(a), (e) (Vernon 2003). A person is guilty of felony deadly conduct if he knowingly discharges a firearm at or in the direction of an individual. Id. § 22.05(b), (e). Recklessness and danger are presumed if the person knowingly pointed a firearm at or in the direction of an individual regardless of whether the person believed the firearm was loaded. Id. § 22.05(c). A jury's failure to find a defendant guilty of an intervening lesser-included offense, i.e. an offense between the requested lesser-included offense and the charged offense, may render the trial court's failure to give the requested charge harmless. Masterson v. State, 155 S.W.3d 167, 171 (Tex. Crim. App. 2005). This is true because the harm from denying a lesser-included offense instruction stems from the potential to place the jury in the dilemma of convicting for a greater offense in which the jury has reasonable doubt or releasing entirely from criminal liability a person the jury is convinced is a wrongdoer. Id. An intervening lesser-included offense is an available compromise, giving the jury the ability to hold a wrongdoer accountable without having to find him guilty of the charged (greater) offense. Id. The existence of an instruction regarding an intervening lesser offense (such as manslaughter interposed between murder and deadly conduct) does not automatically foreclose harm because in some circumstances that intervening lesser offense may be the least plausible theory under the evidence. Id. However, an appellate court can conclude that the intervening offense instruction renders the error harmless if the jury's rejection of that offense indicates that the jury legitimately believed that the defendant was guilty of the greater, charged offense. Id. at 171-72. A person commits manslaughter if he recklessly causes the death of an individual. Tex. Penal Code Ann. § 19.04. A person acts recklessly when he is aware of but consciously disregards a substantial and unjustifiable risk. See Tex. Penal Code Ann. § 6.03(c) (Vernon 2003). There is significant evidence in the record of Walker's awareness of the risk of death and his disregard of that risk. Walker brought a loaded gun to what he claimed was a social situation and had no good explanation for his decision to do so. When he was only three or four feet away from Fobbs, he pointed the gun at Fobbs and pulled the trigger five times. In fact, Walker admits in his brief that "he was reckless in firing a gun so close to another person" and that by "discharging his weapon 3-4 feet from [Fobbs], [he] disregarded a risk of which he was, or certainly should have been[,] aware." Walker also claimed he fired the gun because he wanted to scare Fobbs's and stop Fobbs's attempts to kiss him. Walker's testimony, if believed, squarely presented the jury with a situation of reckless conduct. See Freeman v. State, 230 S.W.3d 392, 408-09 (Tex. App.-Eastland 2007, pet. ref'd) (testimony defendant pointed gun at victim, fired gun two or three times to scare victim and make him stop running, and had no intention to kill victim "presented jury with a situation of reckless conduct"). Thus, manslaughter was a realistic option for the jury. The jury's decision to convict Walker of murder despite the opportunity to convict him of manslaughter shows that the jury believed Walker possessed the specific intent required for murder. See id. at 409 (jury's rejection of manslaughter and conviction of defendant of murder indicated it "legitimately believed he was guilty of the greater, charged offense"). Additionally, the record reveals that the jury was charged on a range of punishment of five years to life imprisonment. Rather than give the minimum of five years, the jury sentenced appellant to forty years' imprisonment, showing that the jury believed appellant was guilty of the greater offense instead of a lesser-included offense. See Partida v. State, 279 S.W.3d 801, 804-05 (Tex. App.-Amarillo 2007, pet. ref'd) (citing Campos v. State, No. 05-05-00492-CR, 2006 WL 1461155, at *2 (Tex. App.-Dallas May 30, 2006, pet. ref'd) (not designated for publication) (jury's action in assessing punishment more than the minimum sentence is indicative of an intent to punish appellant for greater offense)). Accordingly, we conclude that, if the trial court committed an error by refusing to include a lesser-included offense charge for misdemeanor or felony deadly conduct, any such error was harmless. See Masterson, 155 S.W.3d at 172; Partida, 279 S.W.3d at 804-05 (any error by trial court in failing to instruct jury on misdemeanor deadly conduct rendered harmless by jury's conviction of defendant for aggravated assault of a public servant despite inclusion in charge of intervening lesser-included offense of felony deadly conduct). We overrule Walker's first point of error. Factual Sufficiency of the Evidence
In his second point of error, Walker contends the evidence is factually insufficient to support the conviction. Specifically, Walker argues the undisputed evidence established he did not intend to kill Fobbs and, because he lacked the requisite intent to commit murder, he is guilty only of manslaughter. When conducting a factual sufficiency review, we view all of the evidence in a neutral light. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We will set aside the verdict only (1) if the evidence supporting the conviction is too weak to support the verdict, or (2) when the evidence supporting the verdict is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009); Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008). We are permitted to substitute our judgment for the fact finder's when considering credibility and weight determinations, but only to a "very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact finder's determination concerning what weight to give contradictory testimony. Lancon, 253 S.W.3d at 705; Marshall, 210 S.W.3d at 625; Revels v. State, No. 05-07-01555-CR, 2008 WL 5177374, at *5 (Tex. App.-Dallas Dec. 11, 2008, no pet.). We must have a "high level of skepticism about the jury's verdict" before we may reverse based on factual insufficiency. Steadman v. State, 280 S.W.3d 242, 246-47 (Tex. Crim. App. 2009). The jury was instructed it could find Walker guilty of murder if it found that he intentionally or knowingly caused Fobbs's death by shooting Fobbs with a firearm. See Tex. Penal Code Ann. § 19.02(b)(1). A person acts intentionally with respect to the result of his conduct when it is his conscious or objective desire to cause the result. Id. § 6.03(a). A person acts knowingly with respect to the result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b). A culpable mental state is almost always proved by circumstantial evidence. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004); Krause v. State, 243 S.W.3d 95, 111 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd). A jury may infer intent from the acts, words, and conduct of the defendant. Smith v. State, 965 S.W.2d 509, 518 (Tex. Crim. App. 1998); Jackson v. State, 115 S.W.3d 326, 329 (Tex. App.-Dallas 2003), aff'd, 160 S.W.3d 568 (Tex. Crim. App. 2005). A jury may also infer intent to cause death from the use of a deadly weapon in a deadly manner. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996) (jury may infer intent to kill from use of deadly weapon unless it would not be reasonable to infer that death or serious bodily injury would result from use of weapon); Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993) (if deadly weapon used in deadly manner, inference is "almost conclusive" that defendant intended to kill); Jackson, 115 S.W.3d at 329. A handgun is a deadly weapon. Tex. Penal Code Ann. § 1.07(a)(17)(A) (Vernon Supp. 2009). Walker claims the evidence is factually insufficient to support the conviction because he testified that he did not intend to kill Fobbs. However, Walker brought a loaded gun to his meeting with Fobbs and did not have a good explanation for doing so. Although Fobbs had never been violent towards or threatened Walker, Walker claimed he was terrified and needed to protect himself from Fobbs's unwanted contact. From a distance of three or four feet, Walker pointed the loaded gun at Fobbs and pulled the trigger five times. Although Walker claimed that he turned his head and squinted while pulling the trigger, he hit Fobbs with four of the five fired shots. Considering all the evidence in a neutral light, we conclude a rational jury could have found Walker intended to cause Fobbs's death or that Walker knew, at the time he shot at Fobbs, that doing so was reasonably certain to cause Fobbs's death. See e.g. Wilkerson v. State, 881 S.W.2d 321, 324 (Tex. Crim. App. 1994) (rational jury could infer intent to kill from, among other evidence, the distance from which defendant fired and the nature of injury inflicted); Trevino v. State, 228 S.W.3d 729, 736 (Tex. App.-Corpus Christi 2006, pet. ref'd) ("[W]hen a deadly weapon is fired at close range and death results, the law presumes an intent to kill."). Accordingly, the evidence supporting the conviction is not so weak or so against the great weight and preponderance of the contrary evidence that the verdict seems clearly wrong or manifestly unjust. We overrule Walker's second point of error. Admission of Evidence
During the punishment phase of the trial, the State offered a recording of a telephone conversation Walker had while he was in jail waiting trial. Walker originally placed the call to a woman and can be heard conversing with a child. A man, apparently Walker's cousin, joined the call. Walker and his cousin discussed a number of things, but at one point Walker says that when he gets out of jail he is going to "break Little Ken's nose" and "kill Little Ken." The trial court admitted the recording over Walker's objection that its prejudicial effect greatly outweighed its probative value. In his third point of error, Walker argues the trial court erred by admitting the recording. We review the admissibility of evidence for an abuse of discretion and will reverse only when the trial court's decision was so clearly wrong as to lie outside the zone of reasonable disagreement. Hayden v. State, 296 S.W.3d 549, 553 (Tex. Crim. App. 2009); Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006). Evidence is admissible during the punishment phase if the trial court deems it relevant to sentencing. Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon Supp. 2009); see also Hayden, 296 S.W.3d at 552 (Tex. Crim. App. 2009). Evidence is relevant to sentencing if it helps the jury in determining the appropriate sentence for a particular defendant in a particular case. Hayden, 296 S.W.3d at 552; Rodriguez, 203 S.W.3d at 842. This standard grants the trial court wide latitude in the admission of relevant evidence, including evidence arising after the offense. Flores v. State, 125 S.W.3d 744, 746 (Tex. App.-Houston [1st Dist.] 2003, no pet.). Evidence of extraneous offenses or bad acts may assist the fact-finder in determining the appropriate sentence. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1); Sims v. State, 273 S.W.3d 291, 295 (Tex. Crim. App. 2008). However, admissibility of punishment-phase evidence that the trial court deems relevant is still subject to a rule 403 analysis. Rodriguez, 203 S.W.3d at 843; Rogers v. State, 991 S.W.2d 263, 266-67 (Tex. Crim. App. 1999). Under Texas Rule of Evidence 403, even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403; see also Reese v. State, 33 S.W.3d 238, 240-41 (Tex. Crim. App. 2000). Rule 403 does not require exclusion of evidence simply because it creates prejudice; the prejudice must be "unfair." Rogers, 991 S.W.2d at 266. The danger of unfair prejudice exists only when the evidence has an undue tendency to suggest a decision on an improper basis. Id. In conducting our analysis under rule 403, we consider (1) the probative value of the evidence; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent's need for the evidence. Rodriguez, 203 S.W.3d at 843; Reese, 33 S.W.3d at 240-41. Walker admits the conversation, "to the extent it reflected a `bad act' or extraneous conduct, had some relevance to punishment." He argues, however, that he stipulated to his lengthy criminal history, the jury heard that he had been convicted of aggravated assault and aggravated robbery, and the jury convicted him of a violent offense. Any further evidence of his propensity for violence was, therefore, redundant and unnecessary to the State's case. Walker also argues the admission of the tape forced him to testify during the punishment phase to explain what he meant by the comments on the tape in an effort to minimize the effect of the conversation on the jury. Walker was then subjected to cross-examination which only emphasized his prior offenses. The complained-of conversation occurred while Walker was in jail charged with Fobbs's murder. It was relevant punishment evidence because it illustrated Walker's propensity for violence and that he was not deterred by his earlier convictions, by Fobbs's murder, or by being incarcerated. See McClure v. State, 269 S.W.3d 114, 120 (Tex. App.-Texarkana 2008, no pet.) (extraneous offense is relevant consideration when assessing sentence because it relates to defendant's character); Thompson v. State, 33 S.W.3d 847, 853 (Tex. App.-Tyler 2000, pet. ref'd) ("The jury is concerned at the punishment phase hearing with evaluating a defendant's background and character independent of the commission of the crime on trial."). The comments were the only evidence of Walker's propensity to commit further violence following Fobbs's murder and, therefore, the State's need for the evidence was high. The entire conversation was only fifteen minutes long and the complained-of comments constituted only a few seconds of the conversation. It, therefore, took little time to develop the evidence and there is little danger that it confused the issues or misled the jury. Finally, although the State requested the jury sentence Walker to ninety-nine years' or life imprisonment, the jury sentenced him to forty years' confinement, leading us to conclude Walker's statement did not have an undue effect on the jury's decision. Based on our analysis of all the rule 403 factors, we cannot conclude the evidence Walker threatened to "kill Little Ken" or "break Little Ken's nose" affected the jury in an irrational way. Accordingly, the trial court did not abuse its discretion by admitting the recording. We overrule Walker's third point of error. We affirm the trial court's judgment.