Damian Lamon MURKLEDOVE, Appellant v. The STATE of Texas, State.
No. 02-12-00194-CR
Court of Appeals of Texas, Fort Worth.
May 15, 2014
Rehearing Overruled July 31, 2014.
Discretionary Review Dismissed Sept. 10, 2014. Rehearing Denied Oct. 8, 2014.
VI. CONCLUSION
The Court, having examined and fully considered the petition for writ of mandamus, the response, and the reply, is of the opinion that Cypress has not shown itself entitled to the relief sought. The trial court did not abuse its discretion in refusing to abate the underlying litigation. Accordingly, the petition for writ of mandamus is DENIED. See
Joe Shannon, Jr., Crim. Dist. Atty., Charles M. Mallin, Andy Porter, Nelda T. Cacciotti, Mark Thelman, Asst. Crim. Dist. Attys., Fort Worth, for State.
PANEL: DAUPHINOT, WALKER, and McCOY, JJ.
OPINION
SUE WALKER, Justice.
I. INTRODUCTION
A jury convicted Appellant Damian Lamon Murkledove of capital murder, and in accordance with the mandatory sentencing statute, the trial court sentenced him to life in prison without the possibility of parole. See
II. FACTUAL AND PROCEDURAL BACKGROUND
One evening after Murkledove played cards with friends, Dominique Jones asked to speak with him outside. Jones informed Murkledove that he wanted to burglarize the house of their mutual acquaintance, Daniel Garner. Jones told Murkledove that he knew when the house would be vacant but that if Garner happened to be there, Jones “would smoke him.” Jones offered for Murkledove to participate in the break-in. Murkledove went home that night and thought about what Jones had told him.
The following morning, after Murkledove showered, he texted Jones and said he “might need to hit ... a lick,” which means to break into a house and steal property. Jones responded that he was going to burglarize Garner‘s house and asked if Murkledove could find a ride. Murkledove called Bryan Jones,1 who agreed to provide transportation in exchange for $125. Murkledove then texted Garner to ask if he was at work; Murkledove was afraid that if Garner was home during the break-in, Jones might shoot him. Garner said he was not at work.
Bryan picked up Murkledove, and the two drove to Jones‘s house to get him. After picking up Jones, they went to Jones‘s grandmother‘s house so that Jones could get his gun from the house. They then drove to Garner‘s house, and Bryan waited in the car while Murkledove and Jones walked up to the house. Jones opened the door and saw Garner inside playing videogames. Jones shot and killed him. Jones and Murkledove loaded Bryan‘s vehicle with items from Garner‘s home, including a television, two X-box gaming systems, a computer, a basket full of purses, a small lockbox, and an assault rifle.
The men drove to Jones‘s grandmother‘s house. Jones told Murkledove to “sneak” the stolen rifle inside the house. Jones‘s uncle opened the lockbox in the backyard, and they found prescription medicine in-side. Murkledove threw the medicine in the sewer across the street. Jones, Murkledove, and Bryan drove to another house, where they traded the TV for a pair of tire rims, some marijuana, and money. The men returned to Jones‘s grandmother‘s house, where they played dice for a while before Bryan drove Jones and Murkledove home. Jones took the purses with him to give to his mother.
Murkledove‘s first through fourth and sixth through eighth points all involve the trial court‘s jury instructions. We will ad-dress each of his complaints below.
A. Standard of Review
B. Instruction on the Law of Parties
A person commits the offense of capital murder when he intentionally causes the death of an individual during the course of committing or attempting to commit burglary or robbery.
If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.
Here, the abstract portion of the court‘s charge included instructions on the law of parties from subsections (a) and (b) of section 7.02. It also included a definition of the term “conspiracy” as follows: “The term ‘conspiracy’ means an agreement with one or more persons that they or one or more of them engage in conduct that would constitute a felony.” The application portion of the court‘s charge authorized Murkledove‘s conviction for capital murder as the perpetrator of Garner‘s death, as a party to the offense under the law of parties set forth in section 7.02(a), or as a party to the offense under the law of parties set forth in section 7.02(b). Specifically regarding the third theory, the charge instructed the jury:
If you find from the evidence beyond a reasonable doubt that Damian Murkledove and Dominique Jones entered into an agreement to commit the offense of robbery or burglary of a habitation as above defined of Daniel Garner and pursuant to that agreement, they did carry out their conspiracy and that on or about the 19th day of February, 2010 in Tarrant County, Texas, while in the course of committing such robbery or burglary, Dominique Jones intentionally caused the death of Daniel Garner by shooting him with a firearm, and that the defendant Damian Murkledove pursuant to the conspiracy, if any, with the intent to assist Dominique Jones in the commission of said robbery or burglary, then and there at the time of the shooting was acting with and aiding or attempting to aid Dominique Jones in the execution of the robbery or burglary of Daniel Garner, if any, and that the shooting of Daniel Garner was committed in furtherance of the conspiracy, if any, of Damian Murkledove and Dominique Jones to rob Daniel Garner or to burglarize the home of Daniel Garner and that the shooting of Daniel Garner, if any, was an offense that should have been anticipated as a result of the carrying out of the conspiracy, then you will find the defendant, Damian Murkledove, guilty of Capital Murder as charged in the indictment.
The court of criminal appeals, when faced with an almost identical jury instruction to the one at issue here, has ad-dressed the same argument that Murkledove advances here. See Montoya, 810 S.W.2d at 165. In Montoya, the court of criminal appeals rejected the appellant‘s argument that the inclusion of the theory of conspiracy in the court‘s charge erroneously allowed the jury to consider whether the appellant was guilty of the separate offense of criminal conspiracy under penal
Contrary to Murkledove‘s argument, the application of section 7.02(b) and the inclusion of the definition of the term “conspiracy” from section 15.02 did not permit the jury to convict him of capital murder under the theory of party liability if it found him guilty of the offense of conspiracy. See Gilmore v. State, 397 S.W.3d 226, 245 (Tex.App.-Fort Worth 2012, pet. ref‘d); Wood v. State, 4 S.W.3d 85, 89 (Tex.App.-Fort Worth 1999, pet. ref‘d); see also Ladd v. State, 3 S.W.3d 547, 565 (Tex. Crim.App.1999) (holding that defining term “conspiracy” as that term is used in section 7.02(b) was not error), cert. denied, 529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000). Instead, the charge properly allowed the jury to find Murkledove guilty of capital murder under the law of parties. See Wood, 4 S.W.3d at 89.
We overrule Murkledove‘s first and second points.
C. No Instruction on Criminal Conspiracy and Its Sentencing Range
In his third point, Murkledove argues that the trial court erred by not instructing the jury that it could convict him of criminal conspiracy and by not including the penalty range for that offense.2
Regarding an instruction on the penalty range for conspiracy, Murkledove was not charged with conspiracy, the jury did not receive an instruction on it, and in any event, an instruction regarding punishment is not proper in the guilt-innocence stage of trial. See Staggs v. State, 503 S.W.2d 587, 588 (Tex. Crim.App.1974) (“[I]nclusion of information regarding punishment in the charge at the guilt-innocence stage is improper.“); see also
We overrule Murkledove‘s third point.
D. Instruction on Principal or Party
In his fourth point, Murkledove argues that the trial court erred by including in the jury instructions an instruction that it could convict him as either a principal or a party. Murkledove argues that this in-struction was erroneous because the indictment did not contain a parties allegation.
It is well-settled that a jury may be charged on the law of parties even though
We overrule Murkledove‘s fourth point.
E. No Instruction on Independent Impulse Defense
Here, Murkledove‘s proposed defensive issue would simply negate the party-liability theory of the State‘s case; all that was required, then, was for the appropriate portions of the jury charge to track the language of section 7.02(b). See Solomon, 49 S.W.3d at 368. In addressing Murkledove‘s first two points above, we set out the applicable portions of the jury charge, which track the language of penal code section 7.02(b). The trial court did not err by denying Murkledove‘s request for an instruction on the law of independent im-pulse.
We overrule Murkledove‘s sixth point.
F. No Instruction on Necessity Defense
The penal code provides that it is a defense to prosecution if:
- the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;
- the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and
- a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.
Here, Murkledove points to a written statement that he made to police as support for his requested jury instruction on necessity. Reviewing this statement and the entirety of the record in the light most favorable to Murkledove‘s necessity defense, no evidence shows any imminent danger to him or his family. His statement to police does not demonstrate that he had to make a “split-second decision” in order to avoid harm to himself or his family. See Dewalt, 307 S.W.3d at 454. Instead, his statement shows that he (1) learned the night before Garner‘s death that Jones wanted to burglarize Garner‘s home and would kill Garner “if it came down to it,” (2) thought about Jones‘s proposal when he went home that night, (3) texted Jones while still at home the following morning to say that he needed to burglarize a house, (4) arranged for transportation to Garner‘s house while still at home, and (5) rode with Bryan to pick up Jones and then rode with Bryan and Jones to pick up a gun before going to Garner‘s house. Moreover, nothing in the record reflects that Jones made any threats—immediate or otherwise—to Murkledove if he did not assist with the break-in. Even if one could infer that Murkledove feared the possibility of or potential for harm to himself or his family, no evidence exists upon which an inference could be made that harm was imminent when he decided to act. See Washington v. State, 152 S.W.3d 209, 212 (Tex.App.-Amarillo 2004, no pet.) (“[T]he evidence permits one to reasonably infer no more than that appellant feared the possibility of or potential for harm and acted in response thereto.“);
We overrule Murkledove‘s seventh point.
G. No Instruction on Duress Defense
In his eighth point, Murkledove argues that the trial court erred by denying his request for a jury instruction on the defense of duress. He argues that evidence existed that he acted under duress because Jones threatened him.
The affirmative defense of duress applies when the accused “engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another.”
As we stated above in addressing Murkledove‘s seventh point regarding the necessity defense, no evidence exists in the record upon which an inference could be made that any threats perceived by Murkledove were imminent such that he was compelled to participate in the break-in that led to Garner‘s murder. See
We overrule Murkledove‘s eighth point.
IV. SECTION 12.31 INSTRUCTION TO VENIRE PANEL
In his fifth point, Murkledove argues that the trial court erred by not instruct-
Section 12.31 of the penal code requires that in a capital felony trial in which the State does not seek the death penalty, prospective jurors should be informed that a sentence of life imprisonment without parole is mandatory on conviction of the capital felony.
The record reflects that the trial court did not instruct the jurors pursuant to section 12.31(b). However, Murkledove did not object or request that the trial court give such an instruction. As a prerequisite for presenting a complaint for appellate review, rule of appellate procedure 33.1(a) requires a timely objection with sufficient specificity to make the trial court aware of the complaint. See
Here, the record reflects that although the trial court did not instruct the potential jurors of the mandatory life sentence, the potential jurors ultimately received this information by defense counsel during voir dire. Defense counsel told the prospective jurors, “Capital murder has got two punishments, the death penalty or life without parole. Real simple. It‘s the death penalty or life without parole. [The prosecutor] told you they waived the death penalty. You find him guilty of capital murder, he never leaves the prison.” Murkledove points to nothing in the record indicating that the lack of a section 12.31(b) instruction by the trial court resulted in the empaneling of unqualified jurors. See id.; Smith, 420 S.W.3d at 214; McCluer, 2010 WL 1438957, at *9.
We overrule Murkledove‘s fifth point.
V. ADMISSION OF WRITTEN STATEMENTS
In his ninth point, Murkledove argues that the trial court erred by overruling his objections to the admission of his hand-written statements on photographs of the
Our harmless error analysis should not focus on the propriety of the outcome of the trial; instead, we should calculate as much as possible the probable impact on the jury in light of the existence of other evidence. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Crim.App.2000), cert. denied, 532 U.S. 944, 121 S.Ct. 1407, 149 L.Ed.2d 349 (2001). We “should take into account any and every circumstance apparent in the record that logically informs an appellate determination whether ‘beyond a reasonable doubt [that particular] error did not contribute to the conviction or punishment,‘” and if applicable, we may consider the nature of the error, the extent that it was emphasized by the State, its probable collateral implications, and the weight a juror would probably place on the error. Snowden v. State, 353 S.W.3d 815, 822 (Tex.Crim.App.2011) (quoting
The statements at issue here were handwritten by Murkledove on photographs of three separate houses. On State‘s Exhibit 9, Murkledove wrote that the assault rifle was left at the house in the photograph, the lock box was broken open there, and that Jones may have given some purses to his grandmother who lives there. On State‘s Exhibit 10, Murkledove wrote that the house in the photograph belonged to Jones‘s mother and was where Murkledove had last seen the tire rims and the rest of
After making the complained-of written statements on the photographs, Murkledove gave a detailed written statement, in which he stated that he discussed breaking into Garner‘s house with Jones the night before Garner‘s murder, that he arranged transportation to Garner‘s house the following day so that he and Jones could steal Garner‘s property, that Jones brought a gun with him and said that if Garner was there, he would have to kill him, and that Murkledove entered the house with Jones and stole property from inside after Jones shot and killed Garner. In that statement, admitted as State‘s Exhibit 8A, Murkledove also explained that after the break-in, they hid the stolen rifle and opened the lockbox of pills at Jones‘s grandmother‘s house, they sold the TV at another house, and Jones took the murder weapon home with him. Murkledove stated that Jones usually kept his gun in his house, which is down the street from his grandmother‘s house, or in his car. Murkledove does not challenge the admissibility of that statement on appeal.5
The handwritten statements on the photographs of the houses tended to corrobo-rate the most compelling evidence of the State‘s case—Murkledove‘s written statement admitted as State‘s Exhibit 8A. But other unobjected-to evidence at trial also showed that Murkledove directed police to three houses and, upon execution of search warrants on those houses, corroborated Murkledove‘s written statement about the location of the stolen property. See Leday v. State, 983 S.W.2d 713, 717 (Tex.Crim. App.1998) (“It is well established that the improper admission of evidence does not constitute reversible error if the same facts are shown by other evidence which is not challenged.“) (quoting Crocker v. State, 573 S.W.2d 190, 201 (Tex. Crim.App.1978)). At trial, Detective Shane Drake with the Fort Worth Police Department testified without objection that he and another detective drove Murkledove by three houses pointed out by Murkledove and later prepared search warrants for those houses. Execution of those warrants revealed some of the items stolen from Garner‘s house.
We cannot say that the admission of State‘s Exhibits 9, 10, and 11 moved the jury from a state of nonpersuasion to one of persuasion as to Murkledove‘s guilt for the offense of capital murder. See Wesbrook, 29 S.W.3d at 119; see also Clay v. State, 240 S.W.3d 895, 904 (Tex.Crim.App. 2007) (stating that factors to consider in harm analysis are how important the evidence was to State‘s case, whether evidence was cumulative of other evidence, and whether other evidence corroborated complained-of evidence on material points). Thus, assuming error and performing a harm analysis under rule 44.2(a), we hold beyond a reasonable doubt that any error did not contribute to Murkledove‘s conviction.6 See
We overrule Murkledove‘s ninth point.
In his tenth point, Murkledove argues that his mandatory life sentence without parole constitutes cruel and unusual punishment under both the United States and Texas constitutions because he had just turned eighteen two months before the offense and because he was convicted as a party to, not the perpetrator of, capital murder.7
The Supreme Court has held that a mandatory life sentence without the possibility of parole for defendants under the age of eighteen at the time of their crimes violates the Eighth Amendment‘s prohibition of cruel and unusual punishment. Miller v. Alabama, U.S. , 132 S.Ct. 2455, 2463, 2469, 183 L.Ed.2d 407 (2012). But Murkledove had turned eighteen two months prior to Garner‘s murder so Miller does not apply here. Murkledove was subject to Texas‘s statutorily-mandated sentence of life without parole, which applies to individuals who commit offenses when they are eighteen years of age or older. See
Because Murkledove committed the offense after he turned eighteen years of age and because a mandatory life sentence for capital murder is not unconstitutional, we overrule Murkledove‘s tenth point.
VII. CONCLUSION
Having overruled Murkledove‘s ten points on appeal, we affirm the trial court‘s judgment.
DAUPHINOT, J. filed a dissenting opinion.
Respectfully, I must dissent from the majority opinion. The conscientious majority follows the precedent set out by the Texas Court of Criminal Appeals in Montoya v. State.1 The Montoya opinion states that section 7.02 in toto covers only the law of parties, not criminal responsibility for the acts of others as stated in its caption.2 The result is a peculiar rule that provides that a person acts as a party whether he acts as a party or as a co-conspirator.3 That is, he is a party whether he is guilty of the offense alleged in the indictment (or a lesser included offense) or guilty of an offense alleged nowhere. The jury, then, is instructed to convict the defendant of the offense charged in the indictment whether they find him guilty of that offense or a totally different offense that is not a lesser included offense of that alleged.
The fact that conspiracy to commit murder is a different offense from murder is the distinction that allowed the Tarrant County District Attorney to secure the convictions of Christopher William Brosky for both the murder of Donald Thomas as a party and conspiracy to murder Donald Thomas.4 After Brosky‘s murder conviction, for which he received a ten-year probated sentence, the public outrage caused the district attorney‘s office to seek a second bite of the apple. The district attorney sought and obtained an indictment against Brosky for conspiracy to commit the murder of Donald Thomas. Brosky
filed a pre-trial application for writ of habeas corpus on the basis of double jeopardy. The trial court denied relief, and he appealed to this court. This court stated,
Brosky asserts his prosecution for conspiracy is barred by the double jeopardy clause of the Fifth Amendment. We find the double jeopardy clause does not bar the prosecution for conspiracy in this case.
....
We find conspiracy is not a lesser included offense of the law of parties. An offense is a lesser included offense if:
- it is established by proof of the same or less than all the facts required to establish the commission of the of-fense charged;
- 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;
- it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
- it consists of an attempt to commit the offense charged or an otherwise included offense.
Both criminal conspiracy and engaging in organized criminal activity require proof of a fact—an agreement to commit an offense—that murder as a party does not.5
“Brosky argue[d] that the offense of murder as a party under [p]enal [c]ode
[i]rrespective of whether the jury may have inferred the existence of an agreement from Brosky‘s and his co-defendants’ overt acts, this argument is beside the point. The court‘s charge at the guilt/innocence phase of the murder trial did not instruct the jurors they could infer an agreement existed from the overt acts. Rather, the jury was merely instructed that it could find Brosky guilty of murder if it found that he “acted with intent to promote or assist the commission of the offense by encouraging, directing, aiding or attempting to aid” his co-defendants in the murder of Donald Thomas.
The only portion of the law of parties that refers specifically to a conspiracy is [section] 7.02(b), which the trial court excluded from the charge at the defense‘s request. Brosky does not contend, and the record does not show, that the State argued to the jury that Brosky acted as part of a conspiracy. In short, the record is devoid of evidence that the State proved the fact of an agreement to commit murder in the murder trial.7
This court stated unequivocally that “conspiracy does not differ from murder as a party in any of the ways set out in article 37.09. Thus, conspiracy is not a lesser included offense of murder as a party under that article.”8 Then, we spelled it out:
The offense of murder as a party requires proof that the defendant, acting as a party, caused the death of an individual. Criminal conspiracy and engag-
ing in organized criminal activity do not. Similarly, conspiracy and engaging in organized criminal activity require proof that the defendant entered into an agreement, or conspired, with others, which murder as a party does not.9
After his jury trial for conspiracy to commit murder, Brosky appealed his conviction. We summarily dismissed his double-jeopardy claim, stating,
This court has already evaluated and rejected each claim that Brosky now asserts on the issue of double jeopardy. We have already determined that engaging in organized crime and conspiracy is not a species of the lesser included of-fense of murder by complicity. We applied the Blockburger test and concluded that “both criminal conspiracy and engaging in organized criminal activity require proof of a fact—an agreement to commit an offense—that murder as a party did not.” Next, in the murder prosecution, the jury was not instructed on the conspiratorial theory of parties, nor did the prosecutor argue that Brosky acted as part of a conspiracy. This court also rejected Brosky‘s arguments based on Pereira v. United States and United States v. Dixon and held that the controlling precedent was United States v. Felix, where the United States Supreme Court recognized that a prosecution for conspiracy is not precluded by a prior prosecution for the substantive offense. Brosky has presented nothing new to this court requiring us to deviate from our holding in Ex parte Brosky.10
The holding of the Montoya court now causes trial and appellate courts, including
The plain reading of section 7.02, “Criminal Responsibility for Conduct of Another” means just that. There are only two ways a person can be criminally responsible for the acts of another. A person is criminally responsible for the acts of an-
other if he is guilty as a party (7.02(a)) or if he is a co-conspirator (7.02(b)). We presume the legislature means what it says.12
In the case now before this court, the learned trial judge recognized the distinction between guilt as a party and guilt as a co-conspirator under penal code section 15.02, Criminal Conspiracy, a different offense from the offense charged and carrying a penalty one degree lower than the target offense.13 Although the charge in-structed the jury to add to the State‘s burden of proof beyond that required by the legislature, the jury charge carefully included the requirement that the jury find Appellant committed an act:
then and there at the time of the shooting was acting with and aiding or attempting to aid Dominique Jones in the execution of the robbery or burglary of Daniel Garner, if any, and that the shooting of Daniel Garner was committed in furtherance of the conspiracy, if any, of Damian Murkledove and Dominique Jones to rob Daniel Garner or to burglarize the home of Daniel Garner and that the shooting of Daniel Garner, if any, was an offense that should have been anticipated as a result of the carry-ing out of the conspiracy, then you will find the defendant, Damian Murkledove, guilty of Capital Murder as charged in the indictment.
I understand that this is an attempt to explain and apply the law of transferred intent. But it is the unhappy attempt to improperly merge the law of parties with the law of conspiracy as required by Montoya. For the reasons stated above, I would admit that the Montoya court was
For all these reasons, I respectfully dissent from the majority opinion.
In re FIRST MERCURY INSURANCE COMPANY.
No. 13-13-00697-CV.
Court of Appeals of Texas, Corpus Christi-Edinburg.
May 23, 2014.
Rehearing Overruled July 14, 2014.