Prince, Benjamin Jerome ( 2014 )

PD-1515-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/29/2014 3:33:49 PM
Accepted 12/30/2014 10:41:24 AM
ABEL ACOSTA
Cause No. PD-1515-14 CLERK
In the Court of Criminal
Appeals of Texas
Benjamin Jerome Prince,
Petitioner
December 30, 2014
v.
The State of Texas,
Respondent
On Review from Cause No. 08-12-00290-CR
in the Eighth Court of Appeals
El Paso, Texas
(on Transfer from Fort Worth)
State’s Response to Appellant’s Petition for Discretionary Review
Maureen Shelton
Wichita County Criminal District Attorney
Carey Jensen
Asst. Criminal District Attorney
Wichita County, Texas
State Bar No. 24083252
Carey.Jensen@co.wichita.tx.us
900 Seventh Street
Wichita Falls, Texas 76301
(940) 766-8113 phone
(940) 716-8530 fax
Attorney for Respondent State of Texas
Oral Argument Not Requested
To the Court of Criminal Appeals:
Pursuant to Rule 68.9 of the Rules of Appellate Procedure, the State
submits its reply to Appellant’s petition for discretionary review. The State
makes this reply in order to briefly address argument set forth by Appellant
in his petition.
Statement Regarding Oral Argument
Because the record and briefing clearly reflects that there was no
evidence to support any lesser-included jury instructions, the State feels
oral argument is unnecessary.
Argument
The State respectfully requests this Court deny Appellant’s petition
because Appellant failed to show a scintilla of evidence to support a jury
instruction on any lesser-included offenses, as the Eighth Court of Appeals
rightfully concluded.
The Facts
Appellant brutally beat his child victim with a gun that he had just
used to shoot another person.1 When the gun slipped out of his hand and
1
Prince v. State, No. 08-12-00290-CR, slip op. at 3, (Tex. App.—El Paso Oct. 17,
2014), available at
http://www.search.txcourts.gov/SearchMedia.aspx?MediaID=18ad75ce-cae9-44cc-
8881-3902b8bdf562
2
was lost, he continued to beat this child with a hammer until the child was
dead.2
Applicable Law
The State agrees with Appellant that – as indicted – murder is a
lesser-included offense of capital murder, and felony murder is a lesser
included offense of murder. Anything more than a scintilla of evidence may
entitle a defendant to a charge on a lesser offense.3
No evidence of a lesser-included offense
As the El Paso Court of Appeals correctly analyzed, there was no
evidence to support a jury instruction on either of the lesser-included
offenses.
The autopsy revealed that the cause of death was a homicide, based
on the severity of quantity of injuries, and “massive blunt force trauma to
the head.”4 Not only did the child have injuries consistent with being hit
with a gun and a hammer, but injuries consistent with someone standing on
his neck.5
There is absolutely no evidence that Appellant did not know that
standing on a child’s neck, beating the child in the head with a gun, and
2
Id.
3
Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007)
4
Prince, slip op. at 6.
5
Id.
3
then beating the child in the head with a hammer would cause death.
There was no evidence presented that Appellant only intended to wound
the child with this behavior. The inference that a use of a deadly weapon in
a deadly manner can cause death is almost conclusive.6
When briefing the “scintilla” prong of the test, Appellant merely states
that the “totality of the evidence presented at trial legitimately present more
than a scintilla of evidence” to support the lesser-included instructions.7
Appellant only points to the testimony that he acting in a “dissociative”
state, and that the rage directed at the child was meant for the child’s
mother. However, a dissociative state does not render Appellant ignorant
of the fact that beating a child repeatedly over the head with multiple hard
objects would probably cause death.
Because there was no evidence that if Appellant was guilty, he was
guilty of a lesser -included offense, the trial court did not err in denying the
jury instruction, and the court of appeals did not err in overruling Appellant’s
issue on appeal.
6
Adams v. State, 886 S.W.2d 210, 215 (Tex. Crim. App. 1993).
7
Appellant’s Brief at 15.
4
Prayer
The State prays that the Court deny Appellant’s petition for
discretionary review.
Respectfully submitted,
Maureen Shelton
Criminal District Attorney
Wichita County, Texas
/s/Carey Jensen
Carey Jensen
Asst. Criminal District Attorney
Wichita County, Texas
State Bar No. 24083252
Carey.Jensen@co.wichita.tx.us
900 Seventh Street
Wichita Falls, Texas 76301
(940) 766-8113 phone
(940) 766-8177 fax
Certificate of Compliance
I certify that this document contains 557 words. The body text is in
14 point font, and the footnote text is in 12 point font.
/s/Carey Jensen
5
Certificate of Service
I certify that on December 29, 2014, a true and correct copy of the
above document has been forwarded James Rasmussen and Julia Bella
via electronic service to James.Rasmussen@co.wichita.tx.us and
Julia.Bella@co.wichita.tx.us as well as the State Prosecuting Attorney, Lisa
C. McMinn, via electronic service to information@spa.texas.gov.
/s/Carey Jensen
6