Brandon Joseph Williams v. State , 2016 Tex. App. LEXIS 9027 ( 2016 )

Affirmed and Opinion filed August 18, 2016.
In The
Fourteenth Court of Appeals
NO. 14-15-00236-CR
BRANDON JOSEPH WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Cause No. 71723
OPINION
A jury convicted appellant Brandon Joseph Williams of murder and assessed
his punishment at sixty-seven years’ confinement and a $10,000 fine. Appellant
timely appealed. We affirm.
I. BACKGROUND
Appellant does not dispute the fact that he shot the decedent; he only
disputes why he did it—that is, whether he formed the requisite intent to murder.
Thus, the facts are virtually undisputed.
Appellant, an Army veteran, shot and killed Veta Karla Conrad (Karla).
According to appellant’s mother, Belinda Sue Williams (Sue), appellant shot Karla
while Karla and Karla’s daughter, Sarah, were living with appellant at Sue’s
residence in Lake Jackson, Texas. Karla and Sarah were sharing Sue’s bedroom
while Sue slept on the living room couch; appellant had his own bedroom. On the
night of the shooting, appellant, who had been using drugs—including synthetic
marijuana and methamphetamine—woke Sue and said, “Mom, I hear something
outside.” Appellant told his mother to take Karla and Sarah, who were both asleep
in their bedroom, into the bathroom. Sue did not want to scare Karla or Sarah, so
she told appellant, “No.” Appellant then went through the kitchen and out the
backdoor.
Sue did not hear the backdoor close, so she rose and moved toward the
living room fireplace in order to see out the backdoor. She saw appellant standing
in the breezeway by the garage. Appellant appeared startled when he noticed her
and fell backwards. Appellant then raised and pointed his gun at Sue and advanced
toward her, yelling “get down on the ground.” Sue walked backwards to a lamp in
the living room, turned it on, and screamed, “It’s me, mom.” Appellant continued
to approach, re-entered the house, and kept shouting at Sue to get on the ground.
Frightened, Sue got down on one knee. Sue then heard a pop and thought she had
been shot. She did not realize that Karla had entered the room behind her; Karla
was hit by a single bullet fired from appellant’s gun. When she realized she had not
been shot, Sue lunged at appellant and tackled him; the gun “went flying” out of
2
his hand. Sue struggled to keep appellant on the ground as Sarah walked into the
living room. Sue shouted at Sarah to call 911. She also yelled at Sarah to “tell 911
that it was PTSD.” Sue struggled to hold appellant down until the police arrived.
II. ANALYSIS
Appellant challenges his murder conviction in four issues. In his first issue,
appellant urges that the evidence was insufficient to convict him of murder because
the State failed to establish the requisite mental state for murder. In his second
issue, appellant contends that the trial court erred by denying his pretrial motion to
suppress his oral confession because, in light of his claim to have been suffering
from post-traumatic stress disorder (PTSD), his confession was not made
knowingly, intelligently, and voluntarily. In his third issue, appellant argues that
the trial court erred by excluding expert testimony during the guilt/innocence phase
concerning his mental illness, PTSD. Finally, in his fourth issue, appellant urges
that the trial court erred by rejecting certain lesser-included offense instructions in
the jury charge.
We first generally outline Texas law concerning mental illness as a defense
or as rebutting evidence. We then address appellant’s issues in the order he
presents them and conclude that (1) the evidence is legally sufficient to support
appellant’s conviction for murder; (2) the record, and particularly the video
recording of appellant’s statement, supports the trial court’s conclusion in the
amended findings of fact and conclusions of law that appellant made his statements
after a knowing, intelligent, and voluntary waiver of his legal rights; (3) the trial
court did not abuse its discretion in excluding expert testimony of PTSD that did
not negate the mens rea for murder; and (4) appellant has waived his complaint
about the lesser-included offense instructions through inadequate briefing.
A. Mental Illness: Insanity vs. Diminished Capacity
3
Texas law begins with the presumption that a criminal defendant is sane and
that he intends the natural consequences of his acts. Ruffin v. State, 270 S.W.3d
586, 591–92 (Tex. Crim. App. 2008). However, a defendant may be excused from
criminal responsibility if he proves, by a preponderance of the evidence, the
affirmative defense of insanity. Tex. Penal Code § 8.01(a) (“It is an affirmative
defense to prosecution that, at the time of the conduct charged, the actor, as a result
of severe mental disease or defect, did not know that his conduct was wrong.”).
The insanity defense excuses the defendant from criminal responsibility even
though the prosecution has proven every element of the particular offense,
including the culpable mental state, beyond a reasonable doubt. Ruffin, 270 S.W.3d
at 592. And, when insanity is relied upon as a defense, evidence of insanity is
admissible as a matter of due process because “[f]ew rights are more fundamental
than that of an accused to present witnesses in his own defense.” Chambers v.
Mississippi, 410 U.S. 284, 302 (1973).
Apart from the insanity defense, upon which appellant does not rely in this
case,1 Texas does not recognize any other diminished capacity affirmative defense
to criminal responsibility. See Ruffin, 270 S.W.3d at 592. Instead, diminished
capacity is a simple failure-of-proof defense in which a defendant argues that the
State has failed to establish that, at the time of the offense, the defendant had the
requisite state of mind. See Jackson v. State, 160 S.W.3d 568, 573 (Tex. Crim.
App. 2005). Therefore, “both lay and expert testimony of a mental disease or
defect that directly rebuts the particular mens rea necessary for the charged offense
is relevant and admissible unless excluded under a specific evidentiary rule.”
Ruffin, 270 S.W.3d. at 587–88 (reaffirming the holding in Jackson, 160 S.W.3d at
568).
1
Appellant’s experts evaluated his mental condition prior to trial and determined him to
be (1) competent to stand trial and (2) not eligible for an insanity defense.
4
Our court has had few occasions to apply Jackson’s teachings regarding use
of diminished-capacity evidence. See Jackson, 160 S.W.3d at 574–75 (holding that
a trial court has the discretion to determine whether evidence of mental illness is
relevant to negate the element of mens rea and, if admitted, whether such evidence
raises the issue of a lesser-included offense); see also Burks v. State, No. 14-05-
00921-CR, 2007 WL 2386321, at *10–11 (Tex. App.—Houston [14th Dist.] Aug.
23, 2007, no pet.) (mem. op., not designated for publication) (applying Jackson
and determining that evidence of the appellant’s mental disease actually provided
the culpable mental state to support the offense charged). Our court has had no
occasion to apply the evidentiary teachings of Ruffin. Ruffin, 270 S.W.3d at 587–
88. Therefore, we examine those cases here to provide a framework for our
analysis of appellant’s substantive issues.
In Jackson, Jackson killed his brother following a fight. 160 S.W.3d at 569–
70. Jackson presented evidence that he suffered from paranoid schizophrenia and
bipolar disorder. Id. After reviewing the proffered evidence of Jackson’s illness
and the testimony that Jackson was aware of what he was doing and knew the
difference between right and wrong, the Court of Criminal Appeals concluded that
the evidence did not negate the mens rea. Id. at 572 (stating that evidence that
“presented an excuse for the crime, i.e., that Appellant killed his brother because
he was so paranoid that he thought his brother was out to get him” does not negate
the intent to kill).
In Ruffin, Ruffin was “charged with first-degree aggravated assault by
shooting at ten police officers during an armed ‘standoff’ on his rural property.”
270 S.W.3d at 587. This offense as charged required the State to prove that Ruffin
intended to shoot a police officer. Id. at 594 & n.25. After conviction, Ruffin
appealed the trial court’s decision to exclude expert testimony that he was
5
suffering from severe delusions at the time of the offense and, thus, “believed that
he was shooting at Muslims, not police officers.” Id. at 587. He further argued that
the expert testimony about his delusions negated the mens rea element that the
persons he was shooting at were police officers and that the evidence would
“support his theory that he was guilty only of the lesser-included offense of
second-degree aggravated assault.” Id. at 591. The Court of Criminal Appeals
agreed and reversed because the expert’s testimony was “clearly relevant to the
issue of whether appellant intended to shoot at police officers during the standoff
or whether, because of a mental disease and the delusions that he suffered as a
result of that disease, he believed he was shooting at Muslims or some other
figment of his mind.” Id. at 596.
The Court of Criminal Appeals further explained the Jackson rule in Mays v.
State, 318 S.W.3d 368, 381 (Tex. Crim. App. 2010), involving an appeal from a
conviction of killing a law enforcement officer during a shootout. In reliance upon
Ruffin, Mays argued that his mental illness, including paranoid ideation, entitled
him to a diminished capacity instruction regarding whether he acted intentionally
or knowingly. Id. at 380–81. The Court disagreed. The Court noted that Mays’
expert testified that paranoia does not prevent someone from acting intentionally or
knowingly, though the person is “‘influenced by the disordered thoughts.’” Id. at
375. Thus, the Court concluded, the evidence went to motive for killing, rather
than to mens rea. Id. at 380–81. As such, the paranoia that led Mays to believe the
officers mistreated him pertains to mitigation in punishment, not culpability. Id. at
381.
Because there is evidence that appellant used drugs shortly before the
shooting, we also discuss voluntary intoxication. The Court of Criminal Appeals
has repeatedly rejected attempts to use evidence of voluntary intoxication to rebut
6
or disprove a defendant’s mens rea. See Ramos v. State, 547 S.W.2d 33, 33–34
(Tex. Crim. App. 1977) (declining appellant’s invitation to “overrule a long line of
cases” to hold that “‘he was intoxicated to such an extent, that he failed to have the
requisite intent necessary to commit burglary’”); see also Davis v. State, 313
S.W.3d 317, 328–29 (Tex. Crim. App. 2010) (holding inadmissible expert’s
testimony, “offered at the guilt stage of trial, to show that appellant’s intoxication
from cocaine use prevented him from forming the applicable mens rea”); Skinner
v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997) (reaffirming that Texas
Penal Code § 8.04(a) forbids evidence of voluntary intoxication to negate the
culpable mental state of a crime). With this framework in mind, we turn to
appellant’s issues.
B. Sufficiency of the Evidence
In his first issue, appellant does not challenge the sufficiency of the evidence
to show he caused the death of Karla. Rather, he urges there is insufficient
evidence that he could have formed the requisite intent to kill because he suffers
from PTSD.
We view all of the admitted evidence in the light most favorable to the
verdict and determine, based on that evidence and any reasonable inferences from
it, whether any rational fact finder could have found the elements of the offense
beyond a reasonable doubt. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury is the
exclusive judge of the credibility of witnesses and the weight to be given to the
evidence. See Isassi, 330 S.W.3d at 638. Further, we defer to the jury’s
responsibility to fairly resolve or reconcile conflicts in the evidence. Id. We draw
all reasonable inferences from the evidence in favor of the verdict. Id.
7
“[A] person commits the offense of murder if (1) he intentionally or
knowingly causes the death of an individual; or (2) he intends to cause serious
bodily injury and commits an act clearly dangerous to human life that causes the
death of an individual.” Gilbert v. State, __S.W.3d__, No. 14-15-310-CR, 2016
WL 889314, at *2 (Tex. App.—Houston [14th Dist.] Mar. 8, 2016, pet. ref’d). A
person acts intentionally with respect to the result of his conduct when it is his
objective to cause the prohibited result, and a person acts knowingly with respect
to his conduct when he is aware that his conduct is reasonably likely to cause the
prohibited result. Tex. Penal Code § 6.03(a), (b); Nadal v. State, 348 S.W.3d 304,
310 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). Intent to kill may be
inferred from the use of a deadly weapon. Cavazos v. State, 382 S.W.3d 377, 384
(Tex. Crim. App. 2012); Godsey v. State, 719 S.W.2d 578, 580–81 (Tex. Crim.
App. 1986).
A firearm is a deadly weapon per se. Tex. Penal Code § 1.07(a)(17)(A).
Therefore, the jury was entitled to infer intent from appellant’s use of a deadly
weapon, his firearm, “‘unless in the manner of its use it is reasonably apparent that
death or serious bodily injury could not result.’” Vuong v. State, 830 S.W.2d 929,
934 (Tex. Crim. App. 1992) (quoting Godsey v. State, 719 S.W.2d 578, 580–81
(Tex. Crim. App. 1986)). Furthermore, “‘[i]f a deadly weapon is used in a deadly
manner, the inference is almost conclusive that the [defendant intended] to kill.”
Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993) )alterations in
original) (quoting Godsey, 719 S.W.2d at 581).
Here, the evidence shows that appellant used a deadly weapon in a deadly
manner. In his recorded interview, appellant acknowledged that he shot someone.
He never stated that his gun accidentally discharged or that he did not intend to fire
his weapon. No other witness suggested that the gun accidentally discharged.
8
Sue testified that she believed appellant had been suffering from PTSD or
having a “flashback” when he shot Karla. But Sue also acknowledged that
appellant had been out of the military for approximately three years and he had
never suffered such an episode before. Therefore, she made an assumption that his
behavior was from PTSD. However, Sue acknowledged that, at the time of the
shooting, she was unaware that appellant had used, and had been using, illegal
drugs in the house. She was surprised and disappointed when the officers found
drugs in appellant’s room. The jury was not required to credit appellant’s mother’s
testimony about her belief that he was suffering a flashback or PTSD. See Isassi,
330 S.W.3d at 638; see also Evans v. State, 202 S.W.3d 158, 163 (Tex. Crim. App.
2006) (explaining that, even if uncontradicted, a jury is not required to believe the
testimony of a defendant’s mother; “She is, after all, the defendant’s mother.”).
But, even if credited, nothing in Sue’s testimony suggests that appellant did not
intend to fire his weapon.
We conclude that appellant’s claims of mental illness and intoxication fit
squarely within the Texas Court of Criminal Appeals’ analysis in Mays; i.e., this
evidence provides at best an excuse for the offense, rather than negating mens rea.
318 S.W.3d at 381. It is undisputed that appellant used drugs shortly before he shot
Karla. He admitted to officers that he had used both methamphetamine and
marijuana, and he tested positive for both amphetamines and cannabis, a derivative
of marijuana. The attending emergency room physician who treated appellant
shortly after this offense testified that because appellant’s heart rate, blood
pressure, and respiratory rate were so elevated from the drugs, the physician
administered an abnormally high level of benzodiazepines to bring appellant’s vital
signs back to normal.
9
It is further undisputed that appelant intended to shoot at Karla, even if he
did not appreciate at the time that it was Karla. In his statement, appellant says he
turned around and saw a figure. He told the figure to put its hands up. He directed
the figure to identify itself. And then he fired one round. Unlike Ruffin, in which
specific intent to kill police officers was an element of the offense, a specific intent
to kill Karla is not required in this case.
Under these facts, the evidence is sufficient for the jury to infer appellant’s
intent to kill by his use of a deadly weapon. See Cavazos, 382 S.W.3d at 384; see
also Forest v. State, 989 S.W.2d 365, 368 (Tex. Crim. App. 1999) (holding
testimony that appellant meant to shoot victim “in the butt” established that
appellant intended to cause serious bodily injury and, therefore, established that
appellant was guilty of murder under section 19.02(b)(2)). We therefore overrule
appellant’s first issue.
C. Motion to Suppress
In his second issue, appellant contends the trial court erred in denying his
motion to suppress his recorded statement. Specifically, appellant claims he was
unable to effectively waive his rights because his statement was given while
suffering from PTSD and the duress of hallucinations, illness, and medications.
1. Standard of Review and Governing Law
A trial court’s ruling on a motion to suppress is reviewed for an abuse of
discretion. State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014). We give
almost total deference to the trial court’s determination of historical facts and to the
trial court’s application of law to fact questions that turn upon credibility and
demeanor. Alford v. State, 358 S.W.3d 647, 652 (Tex. Crim. App. 2012). Whether
a statement is voluntary is a mixed question of law and fact that may depend upon
10
credibility and demeanor. Garcia v. State, 15 S.W.3d 533, 535 (Tex. Crim. App.
2000).
The trial court is the sole finder of fact and judge of the credibility of
witnesses and the weight to be given their testimony. Wiede v. State, 214 S.W.3d
17, 24–25 (Tex. Crim. App. 2007). This deferential standard similarly applies
when the trial court’s determinations are based on a video recording admitted into
evidence at a suppression hearing. Montanez v. State, 195 S.W.3d 101, 109 (Tex.
Crim. App. 2006). When the trial court signs findings of fact, as here, we view the
evidence in the light most favorable to the trial court’s ruling and determine
whether the record supports the trial court’s findings. Banda v. State, 317 S.W.3d
903, 907 (Tex. App.—Houston [14th Dist.] 2010, no pet.).
There are three theories whereby a defendant may claim that his statement
was involuntary: (1) failure to comply with article 38.22; (2) failure to comply with
Miranda v. Arizona, 384 U.S. 436 (1966); or (3) violation of due process rights.
Umana v. State, 447 S.W.3d 346, 350 (Tex. App.—Houston [14th Dist.] 2014, pet.
ref’d) (citing Oursbourn v. State, 259 S.W.3d 159, 169–72 (Tex. Crim. App.
2008)). “Under the second and third theories, a confession is involuntary ‘only
when there is police overreaching.’” Id. (quoting Oursbourn, 259 S.W.3d at 169).
Absent police misconduct causally related to the confession, there is
no deprivation of due process of law by a state actor and therefore no
violation of the Due Process Clause. Likewise, Miranda protects
against government coercion to surrender Fifth Amendment rights.
Thus, due-process claims and Miranda claims of involuntariness
involve an objective assessment of police behavior.
Id. (citing Oursbourn, 259 S.W.3d at 170–71).
When a defendant claims his confession was involuntary due to his state of
mind, those claims are “‘to be resolved by state laws governing the admission of
11
evidence.’” Id. (quoting Oursbourn, 259 S.W.3d at 171). In Texas, that state law is
article 38.22, the Texas Confession Statute. Id. While claims of involuntariness
under article 38.22 may certainly be based on police overreaching, they may also
be based on the defendant’s state of mind. Id.
Under Section 6 of the Texas Confession Statute—the “general
voluntariness” provision—a defendant may claim that his or her statement was not
freely and voluntarily made and thus may not be used as inculpatory evidence. See
Oursbourn, 259 S.W.3d at 169. “The voluntariness of a statement is assessed by
considering the totality of the circumstances under which the statement was
obtained.” Paolilla v. State, 342 S.W.3d 783, 792 (Tex. App.—Houston [14th
Dist.] 2011, pet. ref’d). “The totality of the circumstances includes the accused’s
experience, background, and conduct. It also includes the characteristics of the
accused.” Umana, 447 S.W.3d at 351 (citations omitted).
Whether the defendant is mentally ill is only one characteristic to consider
among many others when evaluating the voluntariness of a confession. Id. (citing
Dela v. State, 235 S.W.3d 235, 239–40 (Tex. Crim. App. 2007)). “A confession is
involuntary if the totality of the circumstances demonstrates that the confessor did
not make the decision to confess of his own free will.” Id. (citing Vasquez v. State,
179 S.W.3d 646, 655 (Tex. App.—Austin 2005), aff’d, 225 S.W.3d 541 (Tex.
Crim. App. 2007)).
Although relevant, evidence of intoxication does not necessarily render a
statement involuntary. Paolilla, 342 S.W.3d at 792; see also Oursbourn, 259
S.W.3d at 173 (intoxication is usually not enough by itself to render a statement
inadmissible, but it is a factor to consider). When there is evidence of the
defendant’s use of narcotics, medications, or other mind-altering agents, the
question becomes whether those intoxicants prevented the defendant from making
12
an informed and independent decision. Paolilla, 342 S.W.3d at 792 (citing Jones v.
State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996)).
2. The Trial Court’s Findings and Conclusions
The trial court made the following written amended findings of fact:
 The Defendant failed to present any evidence of coercive or
improper police misconduct nor was he deprived of any basic
necessities.
 The Defendant was properly advised of his legal rights in
conformity with Miranda and article 38.22, section 2(a) of the
Code of Criminal Procedure prior to his videotaped statement.
 The Defendant’s video statement shows at the beginning of the
interview Lt. Paul Kibodeaux told him, “We’re in here because
you asked to talk with us.” The Defendant did not dispute that
statement and was recorded shaking his head affirmatively in
response to the question.
 The Defendant did not appear intoxicated as a result of
ingestion of alcohol, controlled substances, or drugs of any type
at the time of the recorded interview. To the contrary, the
Defendant communicated appropriately with the officers during
the interview. He described the delusions he claimed to have
experienced before, during, and after the offense, but did not
indicate he was experiencing any delusions during the
interview. Further, the Defendant did not appear to experience
and did not display symptoms of any type of withdrawal from
any controlled substances at the time of the interview.
 Finally, at no time during the interview did appellant request an
attorney or ask that the interview be stopped.
13
Based on its findings of fact, the trial court made amended conclusions of law,
summarized below:
 The Defendant was capable of making an independent and
informed decision to speak with investigators regarding the
charged crime at the time of the videotaped interview. He was
competent to understand and waive his legal rights at the time
of the videotaped interview.
 The evidence does not show the Defendant was intoxicated at
the time he made his statements to investigators; in particular,
the evidence fails to show appellant was impacted by any level
of intoxication sufficient to impair his understanding of his
Miranda and statutory rights such that he could not make an
independent, informed, and volitional decision to waive his
rights and make a free and voluntary statement to the officers.
 The Defendant knowingly, intelligently, and voluntarily waived
his legal rights under article 38.22, § 2(a) of the Code of
Criminal Procedure prior to and during his videotaped
interview, and freely and voluntarily gave all statements made
on the video.
3. Analysis
The trial court’s findings are supported by the record. The testimony and
video-recording of appellant’s statement confirm that it was appellant who
requested to speak with investigators. Following this request, the video-taped
statement shows two officers, Sidebottom and Kibodeaux, questioning appellant.
Kibodeaux read appellant his Miranda rights and asked, “Do you understand these
rights?” Appellant nodded his head and though not entirely audible, appears to say,
“Yes sir.” Moreover, when asked what appellant wanted to discuss, he responded
by describing what took place before being arrested.
14
This court addressed an argument similar to appellant’s in Umana, where the
defendant argued he suffered from mental illness during his statement and thus did
not provide the statement voluntarily. 447 S.W.3d at 349. In Umana, the defendant
was convicted of aggravated sexual assault. Id. About sixteen hours after the
assault, the defendant waived his rights and gave a video-recorded statement to
police. Id. Days later, a judge ordered a psychological review of the defendant, as
he reported hearing voices and had a prior diagnosis of bipolar disease and
schizophrenia. Id. Five months after the offense, the defendant was found to be
incompetent to stand trial and was admitted to North Texas State Hospital for
psychiatric treatment. Id. Four months later, the defendant was again evaluated and
found competent to stand trial. Id. The trial court denied the defendant’s motion to
suppress the statement. Id. We held that ruling was not an abuse of discretion,
relying upon the video-taped statement as evidence of the appellant’s state of mind
at the time he provided that statement. Id. at 357.
Here, too the video-recorded statement shows that appellant appears to
understand what is being said to him, that he “knew what was going on,” “seemed
to understand what the officer was asking him,” and “did not appear to be
hallucinating or out of touch with reality during the video.” See id. (quotations
omitted). Appellant made the statement approximately twelve hours after he shot
Karla and after receiving emergency treatment to restore his vital signs to normal.
Furthermore, like the defendant in Umana, appellant was able to communicate and
speak in sentences that made sense. See id.
Specifically, when Kibodeaux asked what appellant wanted to talk about,
appellant proceeded to say that while he did not know what happened back at his
residence, he knew he shot somebody. Then appellant paused and said that he told
Sue, Karla, and Sarah to go to the back bedroom and stay on the floor so he would
15
know where everyone was and “they didn’t do it.” At that point, appellant
expressed how down he had been feeling. One of the officers began speaking, but
appellant stopped him, saying “let me follow it from here.”
From this point, appellant described being down over time, doing drugs, and
getting further and further away from God. He warned the officers that his story
was “gonna sound stupid” even though he knew the officers hear “all kinds of wild
stories.” Appellant described that he had argued and fought with the devil, that the
devil had tried to take over his body, that he heard voices, and that he had no
control over his body. After explaining that the devil was angry with him, he
described the events of the night culminating in him—armed with a gun—turning
to see a figure, telling the figure to put its hands up, and then directing the figure to
identify itself. Appellant then said he fired one round.
Appellant cried intermittently when describing the “bits and pieces” that he
could remember. He expressed remorse for killing Karla. But there is no indication
in the seventy-two-minute interview that appellant was continuing to “fight with
the devil” during the interview or was otherwise not in control. And, unlike
Umana, appellant was never declared incompetent to stand trial.
Under the totality of the circumstances, the evidence amply supports the trial
court’s finding that appellant voluntarily waived his rights before giving his
statement. Accordingly, we hold the trial court did not abuse its discretion in
denying appellant’s motion to suppress. Appellant’s second issue is overruled.2
D. Exclusion of Expert Testimony
2
Appellant also appears to complain that the issue of voluntariness should have been
submitted to the jury under article 38.22 section 6 of the Texas Code of Criminal Procedure
because a reasonable jury could have concluded his statement was not voluntarily made. But the
jury was given the instruction appellant complains was missing. Because the jury was instructed
under article 38.22 section 6, this portion of appellant’s issue is without merit.
16
In his third issue, appellant contends the trial court violated his due process
right to present a defense by excluding expert testimony regarding alleged mental
illnesses he was suffering from at the time of the offense. Specifically, appellant
argues that the testimony was admissible to show the impaired condition of his
mind at the time of the offense and tended to negate the requisite culpable mental
state. Appellant argues the testimony was admissible under article 38.36(a) of the
Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 38.36(a). We
review a trial court’s decision to exclude evidence of mental illness for an abuse of
discretion. Jackson, 160 S.W.3d at 575. We will not reverse the trial court’s ruling
unless it falls outside the zone of reasonable disagreement. Resendiz v. State, 112
S.W.3d 541, 544 (Tex. Crim. App. 2003).
As we noted previously, appellant’s evidence is not pertinent to a defense
because appellant did not assert an insanity defense. Instead, appellant necessarily
offered the evidence to negate the culpable mental state for murder. Thus, the
excluded evidence must negate culpable mental state or show that appellant’s
mental illness prevented him from forming (a) the intent to cause the death of an
individual or (b) the intent to cause an individual serious bodily injury where his
act causes the death of that individual. Stated differently, the excluded evidence
must do more than provide an excuse or justification for appellant forming such
intent; it must show that appellant was prevented from forming the intent.
Appellant argues that the “proffer presented by Appellant of the doctors’
testimony directly negated the mens rea element required to convict Appellant of
murder.” Murder is a “result-of-conduct” crime, which the Penal Code defines in
terms of the result of the perpetrator’s actions. See Young v. State, 341 S.W.3d 417,
423 (Tex. Crim. App. 2011) (observing that “result of conduct” offenses concern
the product of certain conduct). A person commits murder by (1) intentionally or
17
knowingly causing the death of an individual or (2) with intent to cause serious
bodily injury, committing an act clearly dangerous to human life that causes the
death of an individual. Tex. Penal Code § 19.02(b)(1), (2).
Appellant made an oral proffer of the testimony of the three expert witnesses
he sought to introduce.3 The Texas Court of Criminal Appeals has authorized such
an offer of proof by “counsel’s concise statement [including] a reasonably specific
summary of the evidence offered and [stating] the relevance of the evidence unless
the relevance is apparent.” Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App.
1998) (per curiam) (interpreting Tex. R. Crim. Evid 103(b)); see also Holmes v.
State, 323 S.W.3d 163, 168 (Tex. Crim. App. 2009) (applying Warner to Tex. R.
Evid. 103(b)).
Appellant’s offer of proof on the opinions of Dr. Axelrad, a forensic
psychiatrist, included that “Brandon was experiencing significant psychotic
symptoms on or around the time of the commission of the offense against the
victim in this matter.” Appellant stated Dr. Axelrad would have testified that
“Brandon does not recall providing the statement to the police officers”; that
“Brandon did tell him that he was using Kush and a little methamphetamine 15 to
30 minutes before the commission of the offense”; and that “Brandon did recall the
gun being discharged but he did not have an actual recollection of pulling the
3
In his brief, appellant argues that “the doctors’ reports stated that, due to his mental
diseases, Appellant was incapable of forming the intent to kill Veta Conrad or incapable of
acting with knowledge of his conduct and its consequences.” Appellant did not offer any
doctors’ reports at the time of the offer of proof. As such, the content of those reports cannot
form a basis for showing the trial court abused its discretion in excluding the evidence in the
guilt/innocence phase. Appellant did offer Dr. Axelrad’s and Dr. Fuller’s reports when those
witnesses testified in the punishment phase, but the trial court excluded them as hearsay.
Appellant brings forward no issue about the exclusion of the reports or any restriction on any
opportunity to make the reports part of the guilt/innocence offer of proof. We note that although
the reports were excluded as evidence, they appear in our reporter’s record but do not contain
any opinion about appellant’s inability to form intent, as suggested.
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trigger on the gun which resulted in the death of the victim Veta Karla Conrad.”
Finally, Dr. Axelrad’s testimony would, according to the proffer, confirm that
Axelrad’s review of the records of the Brazoria County Detention Center revealed
they were “consistent with Dr. Axelrad’s psychiatric evaluation and the attending
mental health professionals that arrived at a diagnosis of a major depressive
disorder and post-traumatic stress disorder.” Finally, the proffer revealed
[w]ith regard to the mental health status examination, Dr. Axelrad
found significant evidence of marked anxiety and depression during
the course of his clinical psychiatric interviews, that -- that it would be
apparent from the -- after interviewing Mr. Williams at the time of the
offense, he was suffering from post-traumatic stress disorder,
unspecified depressive disorder, cannabis abuse disorder, severe
alcohol use disorder moderate [sic] at the time of the commission of
the offense against Ms. Conrad.
The proffer contained nothing from Dr. Axelrad about appellant’s ability or
inability to form the intent to kill Karla or his capacity to act with knowledge of his
conduct and its consequences.
Appellant’s offer of proof on the opinions of Dr. Fuller, also a forensic
psychiatric, was that, using the DSM-4 criteria, appellant’s score “is suggestive of
PTSD.” The proffer contained nothing from Dr. Fuller about appellant’s ability or
inability to form the intent to kill Karla or his capacity to act with knowledge of his
conduct and its consequences.
Appellant’s offer of proof on the opinions of Dr. Harrison, a
neuropsychologist, was that appellant has severe motor problems, movement tics,
vocalization, and nail-biting, and that appellant had childhood attachment
problems, pathological concerns, and preoccupations with his safety and that of his
mother. Dr. Harrison concluded that appellant had ADHD and possible Tourette’s
Syndrome, PTSD, an adjustment disorder, and a drug-induced psychotic disorder.
19
The proffer contained nothing from Dr. Harrison about appellant’s ability or
inability to form the intent to kill Karla or his capacity to act with knowledge of his
conduct and its consequences.
The proffered expert testimony neither addressed nor negated the mens rea
element required to convict appellant of murder. As such, it was not relevant and
the trial court did not abuse its discretion in excluding the evidence during
guilt/innocence. Ruffin, 270 S.W.3d at 587–88. Accordingly, appellant’s third
issue is overruled.
E. Lesser-Included Offense Instructions
In his fourth issue, appellant contends that the trial court erred by denying
his request for lesser-included offense instructions. He argues he was entitled to a
charge on lesser-included offenses, including voluntary manslaughter, criminally
negligent homicide, aggravated assault, and deadly conduct.
We review alleged charge error by considering two questions: (1) whether
error existed in the charge; and (2) whether sufficient harm resulted from the error
to compel reversal. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005).
The determination of whether a lesser-included offense instruction requested by a
defendant should be given to the jury requires a two-step analysis: “First, the court
determines if the proof necessary to establish the charged offense also includes the
lesser offense.” Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012).
Second, “[i]f this threshold is met, the court must then consider whether the
evidence shows that if the Appellant is guilty, he is guilty only of the lesser
offense.” Id. (emphasis added). The first step is a question of law and does not
depend on the evidence produced at trial. Rice v. State, 333 S.W.3d 140, 144 (Tex.
Crim. App. 2011). “The credibility of the evidence, and whether it conflicts with
other evidence, must not be considered in deciding whether the charge on the
20
lesser-included offense should be given.” Dobbins v. State, 228 S.W.3d 761, 768
(Tex. App.—Houston [14th Dist.] 2007, pet dism’d) (citing Saunders v. State, 840
S.W.2d 390, 391 (Tex. Crim. App. 1992)). However, an appellant is not entitled to
an instruction on a lesser-included offense merely because the jury could have
disbelieved certain evidence; instead, there must be some evidence “directly
germane to the lesser-included offense.” Sweed v. State, 351 S.W.3d 63, 68 (Tex.
Crim. App. 2011).
The State does not dispute that all of the lesser-included offenses referenced
fall within the offense of murder in this case. Thus, we need only analyze the
second prong. However, appellant has provided the court no citations to any
portion of the record containing evidence germane to the four requested lesser-
included offenses. Appellant’s argument on the second prong, in toto, follows:
“This Court can only conclude the record contains a mountain of evidence that
Appellant was only guilty of either lesser-included offense, and not guilty of
murder.”
Appellant cites no authorities relevant to the particular instructions and
provides no substantive analysis concerning these instructions. See Tex. R. App. P.
38.1(i) (brief must contain “a clear and concise argument for the contentions made,
with appropriate citations to authorities”). Appellant provides neither legal citation
nor argument concerning the standard for establishing harm under Almanza v.
State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g).
Under these circumstances, appellant’s brief is inadequate, and we overrule
his fourth issue on this basis. See Rhoades v. State, 934 S.W.2d 113, 119 (Tex.
Crim. App. 1996) (overruling inadequately briefed issue because it is “incumbent
upon counsel to cite specific legal authority and to provide legal argument based
upon that authority”).
21
III. CONCLUSION
Having overruled each of appellant’s issues, we affirm the trial court’s
judgment.
/s/ Sharon McCally
Justice
Panel consists of Justices Christopher, McCally, and Busby.
Publish — Tex. R. App. P. 47.2(b).
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