Derrick Kuykendall v. State
03-14-00531-CR
| Tex. App. | Oct 4, 2016Background
- Derrick Kuykendall was convicted of manslaughter in Travis County after firing a handgun; the defense requested jury instructions on (a) a special deadly-weapon finding and (b) the lesser‑included offense of criminally negligent homicide, which the trial court denied.
- The defense presented testimony that Kuykendall fired a “warning shot” into the air, had never fired a gun before, did not remember firing a second time, did not intend to kill, and said he fired to get away from an attacker.
- The trial court entered judgment with a deadly‑weapon finding (or the panel treated the verdict as effecting such a finding); appellant challenges the absence of a jury special‑issue submission on the deadly‑weapon question.
- Appellant also contends the evidence raised criminal negligence (failure to perceive a substantial risk) such that the jury should have been instructed on criminally negligent homicide as a lesser‑included offense.
- The court of appeals panel issued an opinion (April 28, 2016) rejecting appellant’s contentions; this document is a motion for reconsideration en banc arguing the panel erred.
Issues
| Issue | Appellant's Argument | State's Argument | Held (panel) |
|---|---|---|---|
| Whether trial court erred by refusing to submit a special jury question on use/exhibition of a deadly weapon | Kuykendall: timely requested lawful special issue; jury must be given opportunity to make an express deadly‑weapon finding because implied findings are insufficient and the finding has significant sentencing consequences | State: no authority requires submission of a deadly‑weapon special issue in this context; guilty verdict can support necessary judgment language | Panel: rejected appellant’s claim — concluded jury verdict meant no mandatory requirement to submit a special deadly‑weapon question (no controlling authority requiring it) |
| Whether trial court erred by refusing a charge on criminally negligent homicide (lesser‑included) | Kuykendall: his testimony (warning shot, lack of firearm experience, lack of intent, failure to remember second shot) allowed rational juror to find only criminal negligence; thus a charge was required | State: evidence did not show unawareness of risk; pointing/accidental discharge alone insufficient to demand the charge | Panel: held the evidence was insufficient to raise criminally negligent homicide as a lesser‑included offense (denied charge) |
Key Cases Cited
- Lafleur v. State, 106 S.W.3d 91 (Tex. Crim. App. 2003) (trial court may enter deadly‑weapon finding based on application paragraph language; special issue preferred but not sole method)
- Polk v. State, 693 S.W.2d 391 (Tex. Crim. App. 1985) (defines "affirmative finding" and rejects allowing implied deadly‑weapon findings in place of express trier‑of‑fact determinations)
- Thomas v. State, 638 S.W.2d 905 (Tex. Crim. App. 1983) (use/exhibition of firearm is a fact question for the jury; trial judge may not make affirmative finding when jury is trier of fact)
- Guzman v. State, 188 S.W.3d 185 (Tex. Crim. App. 2006) (standard for submitting lesser‑included offenses: offense must be included and some evidence must permit rational jury to convict of lesser only)
- Schoelman v. State, 644 S.W.2d 727 (Tex. Crim. App. 1983) (discusses circumstances where pointing a firearm or accidental discharge may warrant a criminally negligent homicide charge)
- Lewis v. State, 529 S.W.2d 550 (Tex. Crim. App. 1975) (distinguishes criminal negligence from recklessness for purposes of lesser‑included offenses)