*1 five, ar Appellant In videotape by Appellant error watched filmed agent. playing the an insurance Vicki role of er gues the State reversible committed Laconey saw and Ms. described what she inadmissible, eliciting prejudicial hear by ror plot involving insurance fraud to detailed testimony objected say. Appellant to policy. collect on a life insurance Buffington her she did told Donna Vicki objection of the Appellant. Appellant’s Rule 403 Texas Rules Criminal love not relevant, evi provides, “Although Evidence disregard and an to was sustained instruction probative dence if its value excluded request no given. was Defense counsel made substantially by danger of outweighed result, Appellant re a mistrial. As a prejudice_” Evid. unfair Tex.R.CRIM. requested. Appel all the relief he ceived Taylor 403. ruling preserve lant’s failure to an adverse — U.S. -, denied, (Tex.Crim.App.), cert. right complain about the forfeited his (1996), S.Ct. L.Ed.2d hearsay appeal. Cook provided Appeals Court of Criminal instruc (Tex.Crim.App. on how a trial conduct a tion court should 1993). Point of error five is overruled. test, balancing setting forth the Rule 403 judgment court. affirm the of the trial We following four factors: (1) was serious- whether ultimate issue the evi-
ly opponent contested
dence;
(2) convincing whether the State had other ultimate issue to
evidence establish the relevant; disputed
which the evidence was
(3) nature, thereof, compelling or lack evidence;
of the (4) the likelihood the evidence was of Ray GRAHAM, Appellant, Donald impair efficacy such a nature limiting instruction. Id. at 322. Texas, Appellee. The STATE case, intent Appellant’s In this the issue of No. 09-94-226 CR. life insur-
to murder Vicki collect on her hotly The video- policy ance was contested. Texas, Appeals Court prior Appellant, tape evidence revealed that Beaumont. wife, taking policy on his out the insurance collecting thought about scenario 15, 1996. Submitted Nov. by defrauding an insurance benefits death July Decided relevant to company. Such information was intent, establishing Appellant’s preparation, charged. commit It is plan the crime challenge
important to note that this is not prejudicial
regarding the effect of extraneous chal- testimony, Appellant nor does
lenge ruling court’s that the evidence impermissible character evidence. merely
testimony regarding videotape defraud an a fictional scheme to
portrayed evi- company. To the extent
insurance the inherent prejudicial, such is
dence prove the State
nature of used the trial case. do find that
its We proba- ruling that the its discretion in
abused not substan-
tive value unfair outweighed by danger of
tially overruled. Point of four is
prejudice. error *3 Beaumont, Smith, appellant.
Bruce N. for Maness, Attorney, District Tom Criminal Barlow, Criminal District David W. Assistant Beaumont, Attorney, Appellee. for C.J., WALKER, and BURGESS Before STOVER, JJ. So, Q Okay. he fired these two [State] OPINION them towards? shots. fire Where STOVER, Justice. street, [Taylor] A Towards down the County grand jury a Jefferson Indicted middle street. of the murder, attempted appel- the offense of of the Q the middle And what was guilty. A pleaded lant Donald Graham street? sentenced him to convicted Graham and people. A A crowd years’ confinement in the Institutional ten So, Q fired into the middle Department of the Texas Division Crimi- people Appellant appeals street a crowd were. nal Justice. from the where judgment and sentence below. guys jumped on his A The who same *4 brother. 12, 1992, August responding to a
On while call,” fired/fight a “shots Officer Carona saw Cross, Q referring you’re to Derrick And leaving El “the area the white Camino Alexander, you Alpough. Paul Are Michael high speed. call” at a rate of officer referring to those individuals? El stopped the Camino from which four or Yes, sir, A I am. Terry exited; a people performed he five shooting twice After twice the air and (live shotgun found search and a 410 shell men, then group appellant towards
round) pocket. in Donald Graham’s Officer appellant and Before left shot hit a car. gauge shotgun Carona also discovered a 410 scene, the air. he fired one more shot into El behind the Camino’s seat. Graham was Taylor to further testified he told Graham stopped initially Gulfway Drive in Port guys gotten into Arthur, “shoot them” who “had [the fight/shooting four from the blocks brother], appellant’s it” but he “never 15th incident on Street to which Officer Ca- him them.” told to none óf presence [Graham] responding. rona was In the Roy being According Taylor, was Blanton, to Snowden appellant Officers Carona and re- sticks, guys by attacked several who had sponded taunting gath- crowd that had bricks, Taylor it was at that ered, “Yeah, and bats. stated I shot them. I wish I would guys,” he to those point told Graham “shoot have killed them.” As revealed later tes- necessary to protect because it was Graham’s timony, appellant’s the reference in comment say Taylor he brother. said heard Graham persons fight was to involved in a on 15th (Graham) going guys he to kill one of the Snowden, Roy appellant’s Street between As of his brother, up who beat Snowden. a result group and a that included the com- incident, Taylor involvement Roshane plainant, According Michael Alexander. to attempted LeBoeuf, murder. convicted persons, Alex- Officer two Michael Cross, Derrick been ander and “had shot trial, related testifying appellant While shotgun pellets” in the 900 block of East 15th scene, his similar facts about arrival on per- After the arrested Street. officers and gun that he as well the fact shot his Terry appellant, they formed the search on (attackers) away. air to scare “crowd” patrol him in the and took him the put car throw ob- Since the attackers continued to scene of the altercation. brother, jects he next Graham declared his incident, attempt in an to scare shot toward them In his account of the Roshane Camino, According to Taylor, passenger a in the El tes- them into the house. Graham’s (Gra- testimony, hit did not think he could became aware that his tified Graham ham’s) brother, Snowden, their anyone of the distance Roy had been because between his; state, intend to fight. angry ap- location neither did he involved in In an Streets, weapon. his anyone and 15th hurt or kill when fired pellant drove Mobile out, Taylor, vehicle, appellant testified stopped jumped got his As did Roshane Taylor Gra- him to shoot the crowd. shotgun, and fired two times the air. told he shot Taylor, precisely then ham did that. He stated According to Graham moved “[tjowards “stop everything” gun the crowd was.” in order forward where protect his brother. Taylor then testified as follows: urges points complaint was insuffi- appeal, appellant
On
three
evidence
support
finding
of an intent to Mil.
alleged
cient
points
The first
concern
error.
two
charge,
error in the
of error
court’s
specific
Mil is
neces
A
intent to
three contends the evidence
insufficient
sary
murder.
attempted
element of
support
finding
appellant
in-
had the
(Tex.
Flanagan
v.
S.W.2d
tent to Idll Michael Alexander.
Crim.App.1982) (opinion on motion for re
Fuller,
hearing);
also
credibility given 15.02 weight and the to be their Code Ann. ss (Vernon 1989). jury’s province. 22.05 are within the jury may accept reject any part all or The or prong considering the second testimony. of a witness’s See Adelman v. test, the record of the we reviewed (Tex.Crim.App. is some that would ascertain if there evidence 1992). jury may infer an intent appellant is permit a to find the rational which, any from facts evidence to their Anything guilty only of reckless conduct. minds, prove the existence of an intent more evidence than scintilla Viewing light kill. the evidence in the most to entitle a defendant source is sufficient prosecution, to the favorable rational Bignall v. the issue. submission of See appellant’s found evi could have actions (Tex.Crim.App. and, moreover, his intent to kill found denced 1994). may be included offense A lesser beyond the essential elements of the crime (a) affirmatively re if either raised evidence doubt. reasonable establishing the negates futes or an element
Having
(b)
offense,
determined
evidence greater
or
on the
the evidence
sufficient,
legally
then
all of
we
examine
subject
interpreta
to two
issue
different
prism of
tions,
the evidence without the
“in the
negates
interpretations
of the
and one
light
prosecution,”
favorable
most
to the
greater
element of the
offense.
rebuts an
contrary
set aside the verdict
if it is so
Schweinle,
(citing
See
855 S.W.2d cert. (a)
denied., if he person A commits an offense 510 U.S. (1993). places engages in prong recklessly The first conduct L.Ed.2d 260 met; danger of serious bod- is a lesser another in imminent test reckless conduct ily injury. attempted murder. included offense See
(b) Moreover, danger pre- necessary.) appel are Recklessness and conduct was pointed deadly if a knowingly gun weapon, sumed the actor lant was aware shotgun firearm at or the direction of another since he can kill. testified the previously opinion, specific noted in this whether or not the actor believed fire- As arm to be loaded. intent to kill be inferred from Graham’s deadly weapon use unless in the manner (c) An offense this section is a under Class reasonably apparent of its use it is that death B misdemeanor. bodily injury or serious would not result. (Vernon 1989). § 22.05 Ann. Tex. Pen.Code 580-81; Godsey, also See see In for appellant order to be convict Burnett murder, attempted ed of the State must ref'd). (Tex.App.—San pet. Antonio prove culpable higher mental state than There is no evidence in the record rebut conduct; required for reckless the State the inference. prove intentionally knowingly must he in complainant. tended to cause death Furthermore, testimony appellant’s (Tex. Gentry thought descriptive is not or conduct that ref'd); App.—Dallas pet. Tex. Pen. charge conduct. would allow reckless 19.02(a)(1). 15.01(a), §§ Code Ann. response question to defense counsel’s thought anyone whether he he could hit question There is no know- Graham away he because the distance ingly pointed a firearm at or in the direction crowd, “No, sir, replied: why that’s I he so, he did another. He admits others stayed as I If had far back as could.” Therefore, testified likewise. under stat- someone, stated, appellant “I wanted hurt ute, danger presumed. are recklessness upon fired. His could have ran them” and evidence, The issue whether there some support does not reckless mental scintilla, more than a state, as defined Tex. Pen.Code Ann. guilty only of reckless conduct. (Vernon 6.03(c) 1994): § Appellant’s We believe not. strate (c) person recklessly, A or is reck- acts gy justify at trial was to his conduct less, respect to circumstances sur- relying that he fired rounding his conduct or the result of his group protect because he had to his brother. conduct when is aware but conscious- However, consequences appellant’s in *7 unjustifia- disregards ly substantial “crowd,” shooting at the tentional act of risk that the circumstances exist or the ble Alexander, wounding which resulted in the of risk of such result will occur. The must be beyond placing mere went well the act of disregard degree a nature and that its bodily danger, in imminent of serious another the gross from stan- constitutes deviation State, injury. See Johnson v. S.W.2d ordinary person of care that an would dard (Tex.App.—Houston [14th Dist.] under all the circumstances as exercise ref'd). discharged pet. Once Graham (em- standpoint, the viewed from actor’s Alexander, complainant gun his and shot the added) phasis longer merely danger no in imminent of culpable the To fall within confines Alexander, fact, injury. in bodily serious recklessness, appellant must mental state of gave rise to in sustained the wound which of produce some evidence that he was aware attempted for murder. dictment killing hitting of or someone. Since the risk discharge of Appellant never contended his contrary—namely that his the merely gun or reckless. the was accidental hitting anyone, appel- risk of there was no deliberately pointed He admitted fallen lant’s conduct could not have within gun group. the v. the See Gilmore fired definition of “reckless.” (Tex.App.—Hous- appellant’s that he conclude statement pet.)(Since no defen- We ton [14th Dist.] plucked not intend to cannot out complainant defen- did dant aimed at the when intentional, in a vacuum. See record and examined gun, act was dant fired the Burnett, Appellant’s ac- reckless, no on reckless instruction not offense, in in charge a lesser by step from initial to a on progressed step tions assault, stance, does not neces firing aggravated firing air to the deliberate into the all sarily grant testi- to a submission of Even based Graham’s entitlement “crowd.” mony alone, in- that lesser the evidence established he various which theories tentionally ostensibly crowd See v. fired into the offense be committed. Sanford (Tex.Crim.App. protect appellant’s find that 852-53 his brother. We 1982). not claim of no intent kill raises “If does raise a after-the-fact the evidence 22.01, culpable only mental not an issue as to his state reckless assault under Sec. only an intentional and charge
if it is alone and out of context. There error to taken raising Id. knowing no the issue of under Sec. 22.01.” Con affirmative assault conduct; subject point reckless nor is the evidence discussion error sistent our Indeed, one, testimony, interpretations. appel- appellant’s note own differing we all the beyond went other lant’s intentional conduct well not to mention the witnesses, conduct of 22.05.2 an issue on whether the reckless Section fails to raise support recklessly bodily injury The rational under evidence does caused Sec. 22.01, appellant mental state is defined culpable
inference as that (Vernon 6.03(c) § Consequently, ap- conduct. in Tex. reckless ANN. Pen.Code 1974). pellant entitled to instruction on is not error reckless conduct. Point of one is over- had the trial court erred Even ruled. requested refusal to definition its include of error two con charge, See in its it was harmless. Almanza in denying tends trial court erred (Tex.Crim.App. requested instruction of recklessness to be 1984); art. see Proc. Crim. Ann. Tex.Code included in the definition of lesser includ (Vernon 1981). The Court of Criminal 36.19 aggravated pur ed assault. offense of The Appeals has the context of a held pose including a definition of a word in a included offense instruc defect lesser course, charge, term in to assist tion, greater of conviction for the inclusive jury making finding during guilt- its might any possible fense harm nullifies phase determining pen and in innocence lesser be derived from the defective included alty, if any Levy to be assessed. Saunders instruction. See ( Tex.App.—Te (Tex.Crim.App.1995). ref'd). 1993, pet. charge xarkana The included Point of error two is overruled. culpable mental definitions of states judgment and sentence the trial “knowingly,” “intentionally” and not of are affirmed. conclude trial court “recklessness.” We include err in its refusal to the defini AFFIRMED.
tion of “recklessness” context it. appellant requested which *8 BURGESS, Justice, dissenting. ap noted in our As discussion “right But for the respectfully I dissent. one, pellant’s point the trial did of error rule, ruling, wrong reason” this would be a refusing appellant’s requested not err in simple charge conference reflects: case. The charge lesser included of reck on the offense conduct, particular theory The Court: Let the record reflect less because requested the has Court not the evidence did not defense counsel raised and aggra- area of place charge The in Rousseau. court did meet the test reckless, vated assault the definition include on the lesser included instructions also, denied. And and that has been aggravated offenses assault and assault. requested a
However, defense has lesser that a defendant entitled counsel the fact 419, State, (Tex.App.— v. 422 that Tex. Mares 903 S.W.2d 2. One court has held Ann. Pen.Code Thus, 1995, ref'd). injury pet. if results § Eastland that intent which falls short 22.05 covers conduct, is, although the act constitutes harming physical from the actor’s another: no results, highly dangerous. more than reckless conduct. acts are See harm 732 r conduct; occupied into
included offense of reckless
shots
an
traile
home
charge);
and that’s also
conduct
denied.
was entitled to reckless
Sa
744,
State,
linas v.
644 S.W.2d
746
pistol
(Tex.Crim.App.1983)(discharge of
with
additionally
I
requested that un-
[Counsel]:
charge
intent
kill merited
on involun
no
to
der
the definition
assault
the—
State,
tary manslaughter);
v.
Johnson
read a person
it
commits the of-
511,
1992,
(Tex.App.
S.W.2d
514-15
— Waco
intentionally,
if he
fense of assault
know-
ref'd)(defendant
pet.
firing
police
officer
ingly
recklessly
bodily injury
or
causes
third-degree aggravated
entitled
assault
another,
opposed
way
charge, including recklessly, due to evidence
reads,
person
commits the
State,
kill);
of lack of intent to
Mullins v.
intentionally
knowingly
assault if her
166,
(Tex.App.
[1st
169-70
S.W.2d
bodily injury leaving
causes
out
— Houston
1988,
pet.)(defendant firing
no
shot at
Dist.]
recklessly.
word
given
victim should
been
reckless con
On, theory, Judge,
if I
be heard
State,
charge);
v.
duct
Hernandez
why
requesting
we’re
reckless con-
841,
(Tex.App. Corpus
Christi
duct, the defense evidence shows that a
—
1987,
pet.)(defendant
no
“to scare”
who fired
pointing
gun
man
the direction of
manslaughter
involuntary
charge).
entitled
people
crowd of
intent
scare
opposed
them as
to the intent to harm
Thus,
wrong
decision was based on
my judgment
someone
raises the is-
“right ruling, wrong
reason. The
reason”
sue of recklessness.
widely
long
rule has
been
established1
agree
And I
if it
Court:
would
used2,
involving
generally
motions to
I
have been fired. But don’t think reck-
evidentiary rulings.
suppress
in the part
less conduct takes
where not
(Tex.Crim.App.1997),
State,
607, 619
939 S.W.2d
McDuff v.
point,
pointed
but he
—
denied,
U.S. -,
t.
cer
my theory.
fired. That’s
—
-
(1997);
118 S.Ct.
L.Ed.2d
But can we—as far as
defi-
[Counsel]:
(Tex.Crim.App.1992),
State,
118, 125
Jones v.
containing
nition of assault
the word
denied,
t.
507 U.S.
cer
“reckless”, is that denied?
(1993);
733 the comparison A of federal standard error one and raise this issue but two both helpful standard Royster with the is majority presents the the more detailed dis the understanding the delineation between cussion under of error one. Under this jury Royster. in applying roles court and says point, majority “[t]he the issue is set forth in Cordova The federal standard evidence, whether there more than a is some 764, (5th Cir.), Lynaugh, 838 F.2d 767 [v. scintilla, guilty only that 2832, denied, 1061, 108 cert. 486 U.S. S.Ct. concludes, reckless conduct” and then “[w]e 4 (1988) provides 100 that ] L.Ed.2d 932 incorrectly not.” believe This characterizes included offense instruction lesser prong the second the test enunciated in (Tex.Crim. ‘if the given evidence would State, should be 442 Royster v. 622 S.W.2d rationally jury to find defen- permit [a App.1981). In v. 855 Rousseau the lesser offense and guilty dant] 666, (Tex.Crim.App.), cert. de greater.’ acquit him the nied, 919, 313, 510 126 U.S. Cordova, (quoting Hopper (1993), F.2d at 767
L.Ed.2d 260 the court stated: 2049, Evans, 605, 102 v. 456 U.S. S.Ct. applying prong Roy- In the second the (1982)). Although Fifth L.Ed.2d the test, the ster trial court’s determination as the Royster that test Circuit has noted to whether there is some evidence that very “seems similar” federal stan- an raises issue of a lesser included offense dard, prominent one at 767 n. differ- id. jury’s is distinct from the ultimate deter- is ence the two the reference between as mination the is whether defendant the the standard to rational find- federal guilty only of the lesser offense not of by similarly ings jury. think that We greater Lugo offense. See v. tieing only” “guilty language in the (Tex.Cr.App.1984). Royster findings the rational test to separate These considerations delin- were jury, be the roles of court and will in Bell eated applying Royster. It better understood (Tex.Cr.App.1985): apparent appropriate becomes If evidence from source raises the determining applied test to be whether offense, issue of a lesser included charge to a on a defendant is entitled charge given ... ‘it must be is ... well following: lesser offense is the included recognized a defendant is entitled first, included offense must be the lesser every an instruction on issue raised proof .necessary to within the included evidence, produced by whether and, sec- charged, the offense establish State the defendant whether ond, evidence must exist some weak, strong, unimpeached, or contra- permit jury ration- record that would (Citations omitted.) dicted.’ It is then ally if the defendant to find jury’s duty, proper under the in- guilty, guilty only he is of the lesser structions, whether evi- to determine offense. supports dence is lesser credible (emphasis portion Royster added to (Citations omitted.). included offense. test). test, two-prong applying make a court should determination Although long-recognized we the im of- to whether the evidence the lesser portance distinguishing between for a ration- fense would be sufficient of court in the context of roles ally to find defendant offenses, Lugo, lesser included offense, greater only of and not the (quoting at 146 23 Tex. Liskosski offense. App. (Tex.Ct.App. S.W. 1887)), explained we rela Accord have never Wolfe Thus, majority’s
tionship appli (Tex.Crim.App.1996). between those roles and the analysis incorrect Royster begins on an thesis.5 cation test. test, if Majority opinion page we the record to ascertain 730. have reviewed permit a ra- that would there some evidence *10 acknowledge majority, page do on 5. I considering prong states the second "[i]n he, Taylor, thought necessary majority’s it was
The belief is based on several because grounds: justifi- protect strategy to Snowden. Graham’s trial was cation,6 i.e., protection person, a third his witnesses, The called two Snowden defense Snowden;7 brother, Roy is there no evidence Graham, only to but Graham testified to to rebut the inference of intent acting protect testi- to Snowden. Graham through deadly weapon;8 use Gra- fied, in response question shoot to ham’s he did not think he —that necessary stop it was to what was because “hit” could someone because of the dis- brother, ‘Tes, happening protect and to his support mental tance —does not a reckless hit his sir.” He testified he saw brother state;9 and he did Graham’s statement that cross, his restated inten- bats. On Graham plucked not intend to kill cannot be out of the returning the scene were shoot tions and examined in a vacuum.10
record everyone away. in the air and scare Graham Taylor him told to shoot them confirmed Considering there some con- was they jumped had because Snowden. Gra- brother, cerning protection of Graham’s deadly force ham testified believed was jury properly charged on was issue. being against The State at- used Snowden majority For the to conclude this was Gra- clarify11 tempted shot to whether Graham strategy overreaching. ham’s trial is Since exchange: protect through this Snowden there is no direct evidence as trial strate- ways gy, the three most obvious to assess Q you The reason shot towards dire, strategy are to voir testimo- crowd, review you’re telling jury, me and ny argument. There no men- was you thought your is that brother was side, tion, by of protection either of a third danger? person dining voir dire. The State called trying stop everything. I I A Alexander, the vic- nine witnesses: Michael go trying to make them into house Powell, father;
tim; Richard Alexander’s they like because seemed would Manuel, neighbor; Po- Port, Harold Arthur go nothing.... for house Williamson, Caro- lice Officers Robert John na, Blanton, Larry Mark J.T. Lebouef and Nicholson; Taylor, party Roshane So, Q you’re telling me offense; and, rebuttal, Judge Barbara you the reason fired those shots
Dorman, Peace, Precinct Justice them, pro- not to crowd was to scare these, only County. Eight, of Jefferson Of Roy tect Lee Snowden. Taylor testified Lieutenant Williamson No, A sir. of Snowden. Wil- about Graham’s defense on this issue liamson’s So, Q which it? through the introduction of Graham’s written Iwhy A reason shot —fired those The had told which mentioned someone statement shots, away into to scare them their up” were all cut Graham “brother’s arms except leaving nobody hurt house but Taylor “got even more mad.” and Graham They my and them. could brother got upset Graham because Snowden testified nobody long hurt as have been went up and he and Graham had been beaten nothing, got hurt or [sic] would fired shots scene where Graham two crowd, air, you Q So, correctly, two shots towards the if I understand wer- into prevent somebody shooting air. and a final shot into the en’t one shot at a car hurting your brother. shoot Taylor he told Graham to testified Majority opinion page 730. at 9. to find tional reckless conduct.” Majority opinion page 730. 10. Majority opinion page 6. 730. (Vernon 1994). §
7. 9.33 Tex. Ann. effort, Pen.Code clarity made a valiant 11. State exchange. not evident in Majority page opinion 730.
735
go into
it conflicts with other evidence
shooting
A I was
to make them
and whether
house,
way I
only
That’s
in
sir.
not be considered
or is controverted
they
felt
would have
in their
went
determining
instruction on a less
whether an
house.
Penry
given.”
offense should be
er-included
(Tex.Crim.App.),
715,
903
755
v.
S.W.2d
My
review of this
indicates while
— U.S. -,
denied,
rt.
certainly
ev-
providing
Graham’s counsel was
ce
Rousseau,
(1995)(citing
they liked it or not. Counsel closed with deciding impanel to de- plea: whether here, ineompetency. termine See Rule presented I And of the evidence you cases. Deemed you T.R.C.P. annotated submit that cannot be certain injure anyone. proposition only intent kill or even “fundamental” is the that, yes, You can be certain by raised the evidence need be sub- issues doing evidence reckless what any he was jury, probative mitted to the sorry sorry did and he for it he is evidence, scintilla,” tending “more than a that, injured got for it. People because further, sufficient; support an issue is punished and that’s he should for what determining evidence whether the but not these And offenses here. submission, must be raised the issue for asking you. that’s what I’m light most favorable viewed dire, find- party securing jury argu- Neither voir burden contrary strategy ing, disregarding ment reveal trial as char- evidence Graham’s by majority. if the ma- acterized Even inferences. correct,
jority they cases cited no (footnotes omitted). Id. at 612 strategy is a where factor determin- law, turning than to the civil “more When ing if a mental been raised lesser state has exists the evidence “rises evidence, holding a scintilla” where much less cases justification enable reasonable and strategy that trial and a lesser to a level would law, are, mutually people state as a matter of to differ their conclu mental fair-minded Burroughs Crye, exclusive. Co. v. sions.” Wellcome (Tex.1995) (quoting no majority Next the there is concludes Moriel, Transportation Ins. Co. intent to evidence to rebut the inference of (Tex.1994)). Trans See also weapon. through deadly the use S,W.2d Faircloth, Co. v. port Ins. saying majority actually be must What Inc., Con/Chem, (Tex.1995); Kindred rebutting the inference (Tex.1983). Clearly, Gra is no to kill either not credible or intent to kill or he did not intend ham’s statements propriety of more than a As to the scintilla. themselves, are, injure anyone more than credibility majority determining evidence, the issue of intent. credibility of evidence on of the evidence a scintilla “[t]he
736 negated the majority testimony
Next the
decides that Graham’s
the defendant’s
required
testimony
did
think he could “hit”
to establish involun-
mental state
—he
tary manslaughter.
of the distance —does not
someone because
support
They
a
are
reckless mental state.12
judgment
the
of the court
We reversed
Graham,
quite
stating
in
that
be
correct
Lugo
appeals in
and remanded the case
of
recklessness,
charge
must
entitled
a
on
initially
noted that the
for new trial. We
produce
he
the
fact,
some evidence was aware of
jury,
accept
as
trier
or
the
However,
killing
hitting
or
someone.
risk
reject
part
all or a
of a witnesses’ testimo-
using
testimony
they
conflicting
err in
as
Thus,
reject-
ny, even the defendant’s.
we
proof.
through
analysis,
For
this difficult
all
testimony
ed the notion that a defendant’s
it must be remembered that
the test
negate
can
the issue of
lesser included
source,
any
the
whether evidence from
State
held
we
consider all
offense and
that
will
defendant,
regard of
or the
without
whether
presented at
in
the evidence
order
weak, unimpeached,
strong,
evidence is
the
an
determine whether
instruction
contradicted,
a reckless mental
or
raises
given.
should be
lesser included offense
Rousseau,
state.
that he testified that
struction,
inclu
greater
for the
conviction
like
police
kill
officer. This is almost
any possible harm
nullifies
sive offense
saying, “I
there
I could
was not
so
might
from the defective
that
be derived
anyone.”
intend
This
See
lesser included offense instruction.
similar to that of the
in Wal
defendant
564,
State,
569-70
913 S.W.2d
Saunders
lace,[v. State,
(Tex.Cr.App.
1
(Tex.Crim.App.1995).
1983)], where, by
testimony,
own
the
all.
guilty
defendant was
of no offense at
opinions agree,
“deep
the
issue”14
As both
meaning
Appeals gave
a
The Court
a
case is
there is more than
in this
whether
appellant’s
that
statement
the
state
of evidence to raise
mental
scintilla
was,
plucked
not. The statement cannot
out
If there
it
error
recklessness.
was
charge
of the record and examined in a vacuum.
the
the trial court to refuse to
says
jury
majority
The
mental state.
Godsey, 719
at 584.
S.W.2d
“NO,”
say
remaining
I
issue
“YES.”
Furthermore,
reveals
a review Burnett
harmless. The Court
whether
error is
completely
here.
different situation than
Appeals in
stated:
of Criminal
Saunders
thought
Burnett
testified he
the deceased
upon
this
[A]ppellant
cases from
relies
burglar,
he aimed a
at
the
pistol
consistently
found
Court which we have
through
deceased
fired
screen door.
in the failure of the trial
“some” harm
Burnett, 865
at 226. He also testified
S.W.2d
of
charge
court to
on a lesser included
wound,
only
In
intended to
not to kill.
simply
the
by
fense
virtue of
fact that
statement, given
this case Graham’s written
considering
kept
jury from
error
the
incident,
less than an hour after the
stated he
the
have been
whether
defendant
injure
into the air
did not
shot
intend to
Appellant
guilty of that
lesser offense.
or kill. Officer Lebouef testified one of the
argues that
of harm is consistent
this view
shot, commonly
shotgun shells
7was
1/2
position
taken
the United
with
referred to
“bird shot.” This is an infer
Alabama,
Supreme
States
Court Beck v.
Taylor
ence there was no intent
to kill.
2382,
625,
447
65 L.Ed.2d
U.S.
testified Graham
air be
shot twice into the
(1980).
Supreme
Court
392
In Beck
shooting
fore
the street.
down
These warn
jury,
acknowledged
possibility
ing
are an
to loll.
shots
indication
no intent
believing the defendant to have committed
gun,
he did
Graham’s
not aim
crime,
option to
given
some
but
just
crowd,
pointed it
at
is a different
offense, may
greater
convict him of a
inference of no intent to kill.
See Gilmore
greater
chosen to
him
find
State,
848,
(Tex.App.
871
S.W.2d
offense,
acquit
altogeth
rather than to
him
pet.)(aiming
[14th
—Houston
no
Dist.]
er,
though
even
it had a
doubt
reasonable
conduct). All of
than
intentional
this is more
really
greater
offense.
committed
raising
scintilla of evidence
the issue
Id.,
447 U.S.
Cr.App.1987); Hayes v.
harm
“some”
under the standard
Al
(Tex.Cr.App.1987);
Mitchell
[,
157,]
Arline [v.
manza
(Tex.Cr.App.
1991).
(Tex.Crim.App.
In each of
eases
these
we essential
1986)
inappropriate
]. It was not
cer
ly recognized that “some” harm occurs be
—and
tainly not inconsistent with Almanza —for
permitted
cause the
was not
to fulfill
*14
to
appeals
the court of
have considered the
its role as factfinder to resolve the factual
jury
that the
was authorized
circumstance
dispute
the
committed
whether
defendant
appellant
to
of the lesser included
convict
greater
the
That
or lesser offense.
the
involuntary manslaughter,
of
offense
but
“guilty only”
evidence the
of
defendant was
to,
chose not
as some indication that lack
may
the
offense
not have
lesser included
negligent
homicide instruction did not
compelling
been
was no more a consider
not
harm him at all. This is
to detract
analysis
ation in our
of harm than it was in
Mitchell,
holdings
from
in
the Court’s
et
deciding
failing
trial court erred in
the
al.,
jury’s
options are
that where the
place.
give the
in
instruction
the first
greater
acquit,
to convict for the
offense or
Beck,
hardly
Given the rationale of
this is
the fact that
lesser included offense is
inappropriate
assessing
an
for
criterion
not
in
by
raised
the evidence but
included
harm.
jury
the
instructions will be sufficient to
the
But in none of
cases did
these
simply
harm.
demonstrate “some”
We
court,
here, agree
as
to submit one lesser
fully
hold that those cases do not
control
evidence,
by
included offense raised
the
here.
but decline to submit another that
(footnote
Saunders,
thus indicate that sort con invariably in render harmless templated by not occur this offense will not Beck did refusing in another quite any error to submit For reason we cannot so cause. that is also raised regard failing lesser included offense
readily the harm sub any purported As by the offense as self- evidence. mit the lesser included Gibson, Moreno, jury charge, “harm must evident, as did in errors we Mitchell, light jury charge, assayed in of the entire Hayes and and evidence, including the state appeals [v. did in Gonzalez weight probative and (Tex.App contested issues Antonio S.W.2d 589 . —San any dism’d) evidence, counsel and argument pet. ]. any source there was no evidence
other relevant information revealed Almanza, jury rationally find Graham was record of trial as whole.” at 171. supra, reckless only of conduct and not reckless aggravated assault. at 572-74. Id. case, In this the mental states intention my analysis is: The final result ally, knowingly recklessly were and raised a) ruling, wrong “right reason but for the charge given, the evidence. Under the while be, rule”, points of error one two should offense, aggra could a lesser choose quickly simply, sustained and the ease assault, they not choose
vated could the less remanded, reversed and Consequently they mental state. er were states, choosing higher faced with mental b) event, since some evi- there is intentionally knowingly, acquitting or Gra permit dence the record would type This is the of delimina the ham. rationally guilty, if that Graham is find Beck, with in at was faced U.S. assault, aggravated guilty only of reckless 392; Mitchell, 2382, 65 at L.Ed.2d at S.Ct. point of should be error two sustained Gibson, 742; remanded, and the case reversed and Moreno, 133; 810; Hayes, 728 S.W.2d at c) record since there is no evidence 641 — whether convict on *15 jury permit rationally would find greater inclusive offense about which it har only of guilty, that if Graham doubt, acquit a reasonable or to a defen bors conduct, majority correctly reckless over- wholly not dant does believe to be inno one, rules16 error the case but ease, cent. On the of this facts there is under should still be reversed remanded probability” jury “realistic could have point of error two. say, found itself That is this dilemma. does the record in admit of “real this case having My analysis failed to convince probability5’ jury’s istic that the decision was colleague, respectful I least one other am a Graham, through
reduced to whether use dissenter. (at deadly weapon, of the intended to kill murder) tempted bodily injury (ag or cause assault)
gravated or whether Graham was of, consciously disregarded,
aware a sub unjustifiable bodily
stantial and risk that in so,
jury would occur? If then the failure to aggravated reckless as
instruct harmful, notwithstanding
sault was knowing
did not convict him of intentional MERAZ, Appellant, Oscar Saunders, aggravated assault. Consequently, at 570-74. the trial submitting
court erred in not the reckless Texas, Appellee. STATE aggravated commission assault. No. 08-95-00301-CR. Finally, aggravated had reckless assault given in the failure charge, been to sub- Texas, Appeals Court mit reckless conduct to the would not El Paso. have been error. For the difference aggravated reckless assault and between July 1997. bodily injury oc-
reckless conduct15 is that and not in latter.
curs former bodily injury issue con-
Since the bodily injury or the about
troverted subject interpretations, to different "Right ruling, wrong reason.' defined in the Penal 15. As both offenses were at the time offense. Code