509 S.W.3d 315
Tex. Crim. App.2017Background
- Defendant Kelvin Lee Roy drove under the influence (PCP, THC, benzodiazepine) after drinking and smoking; his blood tested positive and he had a history of dip cigarettes making him dizzy and once causing blackout.
- While driving with his girlfriend Taralynn Brown, Roy allegedly "snapped," swerved across lanes, ignored pleas to stop, threatened to kill them, accelerated toward stopped cars at a light, and crashed, killing passenger Alexandria Bertrand.
- Roy testified he blacked out while driving, had no memory of the crash, and denied intending to harm Brown or anyone else; he admitted awareness of risks of driving while intoxicated and voluntarily consumed substances before driving.
- Roy was indicted and convicted of murder under Tex. Penal Code § 19.02(b)(2); he requested a jury instruction on the lesser-included offense of manslaughter (§ 19.04), which the trial court denied; the court of appeals affirmed.
- The Court of Criminal Appeals granted review to decide whether the evidence entitled Roy to a manslaughter instruction and ultimately reversed, remanding for harm analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether manslaughter is a lesser-included offense of murder charged under § 19.02(b)(2) | — (State relied on murder charge) | Roy conceded manslaughter is lesser-included but argued instruction was required | Manslaughter is a recognized lesser-included offense (court assumed this and moved to second-step analysis) |
| Whether admitted evidence more than a scintilla raised manslaughter as a rational alternative | State argued evidence showed intent/knowingly dangerous conduct supporting murder | Roy argued his testimony and corroborating toxicology showed reckless conduct (aware of risk, consciously disregarded it) supporting manslaughter | Held that more than a scintilla of evidence supported manslaughter because Roy presented affirmative evidence of conscious disregard of risk by driving intoxicated |
| Whether a defendant who claims blackout can receive a manslaughter instruction | State relied on Schroeder to argue blackout precludes manslaughter instruction | Roy distinguished Schroeder: he showed prior awareness and conscious risk-taking before blackout, and the reckless conduct caused the death | Court held Schroeder is distinguishable and blackout does not automatically bar manslaughter instruction when earlier conscious recklessness produced the deadly result |
| Remedy when lesser-included instruction was erroneously denied | State likely argued harmlessness or sufficiency supported conviction | Roy sought reversal/remand for harm analysis | Court reversed court of appeals and remanded for harm analysis to determine effect of instructional error |
Key Cases Cited
- Goad v. State, 354 S.W.3d 443 (Tex. Crim. App. 2011) (sets two-step lesser-included-offense instruction test)
- Cavazos v. State, 382 S.W.3d 377 (Tex. Crim. App. 2012) (manslaughter is lesser-included offense of murder under § 19.02(b)(2))
- Schroeder v. State, 123 S.W.3d 398 (Tex. Crim. App. 2003) (discusses when blackout evidence fails to raise manslaughter because no conscious disregard of risk)
- Ross v. State, 861 S.W.2d 870 (Tex. Crim. App. 1992) (examples of conduct—holding a loaded cocked gun to a head—constituting recklessness)
- Hayes v. State, 728 S.W.2d 804 (Tex. Crim. App. 1987) (gun discharge during struggle can be reckless conduct)