Cynthia Ann HUDSON, Appellant v. The STATE of Texas.
No. PD-0768-12.
Court of Criminal Appeals of Texas.
March 27, 2013.
522 S.W.3d 522
As for the third Almanza factor—the arguments of counsel—neither the State nor the defense suggestеd that there was any distinction between “Jerry” and Officer Whitlock. The State urged the jury to reject the defense, not because “Jerry” was not a “law enforcement agent,” but because appellant was in it for the monеy. The defense characterized the entrapment as part of a case of overreaching: STOP used a confidential informant, an agent of law enforcement, to lure the vulnerable appellant from Tarrant County to Johnson County—a place to which he had never before been—to make a drug case for Johnson County.
Applying a straightforward Almanza analysis, we conclude that appellant‘s rights were not harmed at all, much less “egregiously harmed,” by the failure to specifically name “Jerry” in the entrapment application paragraph.
Although the entrapment application paragraph should have listed “Jerry” as well as Marshall Whitlock, the jurors wеre well aware of “Jerry‘s” role as a law-enforcement agent acting at Officer Whitlock‘s behest from (1) the definitional section of the entrapment charge, (2) the evidence, and (3) the parties’ arguments. Therefоre, while we disagree with the court of appeals that appellant failed to preserve this jury-charge issue, we conclude that appellant has failed to show egregious harm, and we affirm the judgment of the court of appeals.
MEYERS, J., did not participate.
John R. Messinger, Assistant State Prosecuting Attorney, Lisa C. McMinn, State‘s Attorney, Austin, TX, for the State.
KELLER, P.J., delivered the opinion of the Court in which PRICE, JOHNSON, KEASLER, HERVEY, COCHRAN, and ALCALÁ, JJ., joined.
In the court of appeals, appellant complained that the trial judge erred in failing to submit to the jury a lesser-included offense. In sustaining that complaint, the court of appeals conducted its error analysis without cоnsidering possible intermediate lesser-included offenses that the evidence might have supported, and it conducted its harm analysis without considering the lesser-included offenses that were actually submitted to the jury. We shall revеrse its judgment and remand for further proceedings.
I. BACKGROUND
A. Trial
On December 3, 2008, appellant‘s adopted thirteen-year-old son Samuel died after being brutally beaten. There was evidence that Samuel had also been confined to his room and deprived of food for several days. First responders noticed bruising “stripes” from the boy‘s neck to his feet.
Appellant was charged with capital murder. The indictment alleged that she intentionally murdered the victim during the course of a kidnapping.1 The amended indictment alleged this theory of capital murder as follows:
[Appellant] did then and there intentionally cause the death of an individual, namely, Samuel Hudson, by beating the said Samuel Hudson with a cord, a mop handle, a rake, a baseball bat, and by withholding food from the said Samuel Hudson when the defendant was under a legal duty as Samuel Hudson‘s parent to provide food for the said Samuel Hudson, and the defendаnt was then and there in the course of committing or attempting to commit the offense of kidnapping of Samuel Hudson.
The abstract portion of the jury charge instructed that a person commits capital murder if the person intentionally commits the murder in the course of committing or attempting to commit kidnapping. The application portion of the jury charge instructed the jury to find appellant guilty of capital murder if the jury believed thаt she “did then and there intentionally cause the death of Samuel Hudson” by the means alleged in the indictment and that this was done in the course of committing or attempting to commit kidnapping.
The jury charge also contained instruсtions regarding two lesser-included offenses: (1) murder and (2) injury to a child.2 The jury was instructed to find appellant guilty of murder if it found that she intentionally or knowingly killed the
Appellant requested an instruction on the lesser-included offense of manslaughter. That instruction would have informed the jury that it could convict appellant of manslaughter if it found that she recklessly caused the death of the victim.5 The trial judge refused to submit the requested manslaughter instruction.
At trial, appellant testified that she committed no offense. During сlosing arguments, the prosecutor argued that appellant was guilty of capital murder while defense counsel argued that appellant was not guilty of any of the submitted offenses. Appellant was convicted of capital murder and sentenced to life imprisonment.
B. Appeal
The court of appeals reversed this conviction because appellant did not receive an instruction on the lesser-included offense of manslaughter.6 Assessing the evidence solely with respect to the offenses of capital murder and manslaughter, the court of appeals held that the trial court erred in failing to submit a manslaughter instruction and that appellant wаs harmed as a result.7 With respect to the issue of error, the court of appeals found that manslaughter was raised by the evidence because almost all of appellant‘s statements tended to support thе idea that she intended to discipline, not kill, Samuel.8 Discussing evidence that it believed negated the culpable mental state of intent and established recklessness, the court of appeals found the failure to submit the offense of manslaughter to be harmful.9 The opinion of the court of appeals did not discuss other lesser-included-offense instructions that were submitted to the jury.10
The State has filed a petition for discretionary review, cоmplaining about the court of appeals‘s error and harm analyses.11
A. Error
Our cases indicate that, when the evidence relied upon to raise the requested lesser-included offense establishes a lesser-included оffense that is greater than the one requested, then the defendant is not entitled to his requested submission.12 Under the facts of the present case, there are three conceivable intermediate lesser-included offеnses that are greater than manslaughter but are consistent with a culpable mental state of recklessness with respect to the victim‘s death: (1) murder based on intent to cause serious bodily injury,13 (2) felony murder with the underlying felony of kidnapping,14 and (3) felony murder with the underlying felony of injury to a child (if the parties in the present case were correct in their assessment that injury to a child was a lesser-included offense of the charged capital murder, then felony murder with the underlying felony of injury to a child wоuld also be a lesser-included offense).15 A complete analysis of whether a manslaughter instruction should have been given would, therefore, have included consideration of whether the evidence relied upon by appellant would have established one of these offenses and whether such a circumstance would have prevented her from being entitled to the submission of manslaughter.16
B. Harm
In Saunders v. State, we held that a harm analysis regarding the failure to submit a lesser-included offense should take into account the existence of any lesser-included offenses that were submitted and that the jury‘s rejection of submitted lesser-included offenses could render error with respeсt to the unsubmitted lesser-included offense harmless.17 The court of appeals did not discuss the effect of those
We reverse the judgment of the court of appeals and remand the case for further proceedings consistent with this opinion.
WOMACK, J., joined except footnote 16.
MEYERS, J., did not participate.
Jay Paul YZAGUIRRE, Appellant v. The STATE of Texas.
No. PD-0799-12.
Court of Criminal Appeals of Texas.
March 27, 2013.