Todd MEINE, Appellant, v. The STATE of Texas, Appellee.
No. 13-10-00360-CR.
Court of Appeals of Texas, Corpus Christi-Edinburg.
Aug. 18, 2011.
Rehearing Overruled Sept. 15, 2011.
605
Discretionary Review Refused Dec. 7, 2011.
CONCLUSION
Under these circumstances, Dr. Lopez has failed to establish reversible error. Accordingly, we have overruled Dr. Lopez‘s challenges to the trial court‘s order. Having overruled each of Dr. Lopez‘s issues, we affirm the trial court‘s order denying his second motion to dismiss.
Mark Skurka, Dist. Atty., Douglas K. Norman, Asst. Dist. Atty., Corpus Christi, for Appellee.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and BENAVIDES.
MEMORANDUM OPINION
Memorandum Opinion by Justice BENAVIDES.
Appellant, Todd Meine, was convicted by a jury on two counts each of aggravated assault on a public servant and attempted capital murder. See
I. BACKGROUND
Meine was arrested in the parking garage of the American Bank Center (the “Center“) in Corpus Christi after firing several gunshots at security officers. Security was originally called when Jose Macias, a parking attendant at the Center, observed Meine “staggering around” and “falling over” outside of the parking garage, and Macias‘s supervisor, Veronica Ramirez, observed that Meine was “kind of stumbling” and “looked intoxicated.” Roland Saenz and Eduardo Nunez, two off-duty Nueces County deputies, were working as security officers at the Center and were called to investigate. Additionally, three Cеnter employees were called to the scene for reports of someone banging on an elevator and setting off a fire alarm in the parking garage. When Saenz and Nunez arrived at the parking garage, they observed that Meine appeared to be intoxicated, that he could “barely stand up,” and that he was fumbling around a Jeep that they knew to belong to the manager оf the facility. The two officers approached Meine and asked for identification, to which Meine did not respond. Nunez testified that Meine had his back to them and that when one of them grabbed Meine‘s arm to turn him around, Meine opened fire. Nunez recalled two shots fired in his direction, one of which flew by his face. Nunez testified that as he went for cover, he heard several more shots. Saenz tеstified that several shots were fired and that one bullet hit his wristwatch. After firing the gun, Meine stumbled backwards and fell to the ground. The other three Center guards arrived at the garage just as Meine was drawing his firearm. After he fell to the ground, the guards grabbed him from behind, disarmed him, and called the police. The guards recovered a .22 caliber revolver and five fired shells.
Two hours after Meine‘s arrest, his blood alcohol levеl was tested and indicated a .314, nearly four times the legal driving limit. Meine testified at trial that he had no recollection of the events at the Center, but that he was later told that he shot a policeman. Officer Jay Clement testified that in route to the hospital, Meine told him that “the only reason he shot at them was because he thought they were going to take his watch.”
II. DISCUSSION
A. Double Jeopardy
By his first issue, Meine contends that the trial сourt erred “in failing to make the State elect between the [a]ggravated [a]s-sault counts and the [a]ttempted [c]apital [m]urder counts.” He contends that allowing the jury to find him guilty of all four counts violated the Double Jeopardy provisions of both the United States and Texas constitutions. See
“The Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment, protects an accused ... from being punished more than once for the same
Under the Texas Code of Criminal Procedure, an offense is a lesser-included offense if: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) 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; (3) it differs from the offense charged only in the respеct that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense.
We must begin our analysis by determining whether the aggravated assault on the officers is a lesser-included offense of the attempted capital murder of the officers. See Littrell, 271 S.W.3d at 276. “We make that determination as a matter of state law by comparing the elements of the greater offense, as the State pled it in the indictment, with the elements of the statute that defines the lesser offense.” Id. (citing Hall, 225 S.W.3d at 525). If the aggravated assault is a lesser-included offense, the offenses are the same for double jeopardy purposes and Meine may not be punished for both. See Littrell, 271 S.W.3d at 276. “The second question, in that event, is whether the Legislature has clearly expressed a contrary intention that the accused should in fact be punished for both the greater and the lesser-included offenses.” Id.
Notably, however, two offenses may be equated for double jeopardy purposes even if they hаve divergent elements if the same “acts required” are alleged in the indictment for each of the two offenses. Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim.App.2008). In Girdy, the Texas Court of Criminal Appeals held that if “the prosecution, in proving the elements of one charged offense, also necessarily proves another charged offense, then that other offense is a lesser-included offense,” and continued that if there is no cleаr legislative intent to punish the offenses separately, “multiple punishments for the criminal act that is subject of the prosecution is barred.” Girdy v. State, 213 S.W.3d 315, 319 (Tex.Crim.App.2006). As this rule applies to this case, a single act that demonstrates both the intent to threaten and the intent to kill are not distinguishable for double jeopardy purposes. Johnson v. State, 983 S.W.2d 800, 802 (Tex.App.-Houston [14 Dist.] 1998), vacated and remanded on other grounds, Johnson v. State, 991 S.W.2d 284 (Tex.Crim.App.1999).
In this case, Meine was indicted on two counts each of aggravated assault on a public official and attempted capital murder, each with nearly identical elements. The attempted capital murder counts required a showing of the following elements:
- (1) Todd Meine;
- (2) with the specific intent to commit the offense of capital murder against Officers Nunez and Saenz;
(3) intentionally and knowingly fired a gun at Nunez and Saenz; - (4) this act amounted to more than mere preparation which tended but failed to effect the commission of said offense;
- (5) Nunez and Saenz were peace officers acting in the lawful discharge of an official duties; and
- (6) Meine knew that Nunez and Saenz were peace officers.
The aggravated assault counts required that:
- (1) Todd Meine;
- (2) intentionally and knowingly threatened Nunez and Saenz with imminent bodily injury by firing a gun at them;
- (3) Nunez and Saenz were peace officers acting in the lawful discharge of an official duties; and
- (4) Meine knew that Nunez and Saenz were peace officers.
Here, the same action—firing the gun—is the only еvidence to demonstrate either the intent to threaten with imminent bodily injury or the intent to commit capital murder. Therefore, under the indictment in this case, the State could not prove the greater offense without also proving the lesser offense. See
When a defendant is subjected to multiple punishments for the same offense, the remedy is to affirm the most serious offense and vacate the other convictions. Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex.Crim.App.2006); Landers v. State, 957 S.W.2d 558, 559 (Tex. Crim.App.1997). The “most serious offense” is defined as the offense for which the greatest sentence was assessed. Bigon, 252 S.W.3d at 373; Ex parte Cavazos, 203 S.W.3d at 338. Meine was convicted of both the attempted capital murder and the aggravated assault on each of two complainants in the same incident and was sentenced to life impris-
B. Insanity by Intoxication
By his second issue, Meine contends that the trial court erred in denying his requested instruction for insanity by intoxication as a mitigating factor during the punishment phase of his trial.
A court must submit an instruction on insanity by intoxication only if the evidence tends to show the intoxication cаused temporary insanity in the defendant. See
The evidence was overwhelming that Meine wаs indeed intoxicated, but he failed to present evidence that, because of his intoxication, he did not know his conduct was wrong or he was incapable of conforming his conduct to the law. See Cordova, 733 S.W.2d at 190. Meine provided no evidence to this effect other than how extreme his intoxication was, and in fact, Meine made a comment to one officer that he only shot at the two responding officers because he thought they were trying to steal his watch—indicating that he was still able to comprehend the idea that stealing was wrong and that he was entitled to defend his property, however mistaken he might have been. Because he failed to present evidence of temporary insanity, Meine was not entitled to a mitigating instruction on insanity by intoxication during punishment. We overrule Meine‘s second issue. See id.; see also Ramirez, 2006 WL 1041122 at *6.
C. Deadly Conduct
By his third issue, Meine contends that the trial court erred by denying his requested instruction on the lesser-included offense of deadly conduct as it applied to the counts of attempted capital murder.
There is a two-part test for determining if an instruction on a lesser-included offense should be given: (1) the lesser offense must be included within the proof necessary to establish the offense charged, and (2) there must be some evidence that would permit the jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App.1993). The only distinction between attempted capital murder and the lesser offense of deadly conduct is the intent of the actor—a person commits the offense of deadly conduct if he recklessly engages in conduct that plаces another in imminent danger of serious bodily injury. See
Accordingly, we must determine if there is evidence from which the jury could have rationally found that appellant was guilty only of recklessly shooting his firearm without the intent to kill the officers. See Pitonyak v. State, 253 S.W.3d 834, 847 (Tex.App.-Austin 2008, pet. ref‘d). Meine‘s claimed inability to remember the shooting does not, in itself, entitle him to an instruсtion on the lesser offense. See id.; Schroeder v. State, 123 S.W.3d 398, 401 (Tex.Crim.App.2003). Additionally, “it is not enough that the jury might have disbelieved crucial evidence pertaining to the charged offense.” Pitonyak, 253 S.W.3d at 847 (citing Bignall v. State, 887 S.W.2d 21, 24 (Tex.Crim.App.1994)). Rather, “there must be some evidence directly germane to the included offenses for the jury to consider.” Id. In other words, it is not sufficient that the jury might have chosen to disbelieve that Meine intended an intentional or knowing murder; there must be affirmative evidence that appellant was guilty only of acting recklessly. See id. The record is barren of such evidence.
Meine contends that the testimony elicited from the officers in which they each agreed that Meine was close enough to them that he could have killed them if he so wished was sufficient evidence to justify the instruction on deadly conduct. We disagree because this evidence only showed that Meine did not hit the officers, not that he did not intend to hit them. Without some affirmative evidence of a lower culpable mental state, Meine was not entitled to the instruction on deadly conduct. See Bignall, 887 S.W.2d at 24; Pitonyak, 253 S.W.3d at 847. Additionally, evidence showing that Meine was intoxicated was not sufficient to support the instruction on deadly conduct, because it, likewise, constituted no affirmative evidence of any mental state whatsoever. We overrule Meine‘s third issuе.
D. Charge Error
By his fourth issue, Meine contends that the trial court erred by submitting a charge to the jury that did not track the indictment. Specifically, he contends that he was indicted in counts Three and Four for attempted capital murder by means of “firing a gun” at the officers, but the charge to the jury allowed a conviction
“Our first duty in analyzing a jury-chargе issue is to decide whether error exists. Then, if we find error, we analyze that error for harm.” Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App.2005) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App.2003)). The degree of harm required to reverse the trial court‘s judgment depends on whether the appellant objected to the charge before it was given to the jury. Id. Under Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh‘g), if the defendant has properly objected to the charge, we need only find “some harm” to reverse the trial court‘s judgment. Id. at 743-44 (citing Almanza, 686 S.W.2d at 171). If the dеfendant fails to object, however, or states that he has no objection to the charge, “we will not reverse for jury-charge error unless the record shows ‘egregious harm’ to the defendant.” Id. In determining whether egregious harm exists, we examine the charge in its entirety, the state of the evidence, the argument of counsel, and any other relevant information in the record. Id.
Assuming, without deciding, that the trial court erred by including an incorrect paragraph in the abstract portion of the jury charge, we turn to the issue of harm. In this case, Meine did not object to the jury charge on the ground that it did not track the indictment, and therefore, he must show egregious harm in order to be entitled to a new trial. Ngo, 175 S.W.3d at 743-44. In this case, the charge tracked the indictment in the application paragraph and does not appear confusing as to the elements that the jury was required to find under the indictment. Additionally, no party argued that Meine could be found guilty of attempted capital murder by merely pointing the gun, and in fact, the prosecutor continuously argued the elements as they were indicted, noting that “[t]he issue is that shots were fired by that Defendant at people who were peace officers,” and conсluding, “Todd Meine shot at two cops, hit one, missed the other one, trying to kill them, could have easily killed them. And he‘s guilty of that offense. Thank you.” When we consider the evidence as a whole, the argument of counsel, and the other relevant information, we conclude that Meine has failed to demonstrate egregious harm. See Almanza, 686 S.W.2d at 171. Therefore, we overrule his fourth issue.
III. CONCLUSION
Sustaining Meine‘s first issue and overruling his remaining issues, we reverse and vacate the trial court‘s judgment as it applies to the two counts of aggravated assault on a public servant, and we affirm the judgment as it applies to the two counts of attempted capital murder.