Phillip Andrew Campbell v. the State of Texas ( 2021 )

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IN THE
TENTH COURT OF APPEALS
No. 10-19-00191-CR
PHILLIP ANDREW CAMPBELL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 413th District Court
Johnson County, Texas
Trial Court No. DC-F201700948
DISSENTING OPINION
Jade died because appellant used his hands to squeeze her neck hard enough and
for enough time to cut off the blood flow to her brain resulting in her death. On this,
there is really no dispute. There is also no dispute that Jade and appellant were
consenting adults that had agreed to engage in what some would call rough sex or erotic
asphyxiation, while others would call it disgusting or aberrant behavior. Even if Jade
agreed to rough sex, there is no question that the conduct actually engaged in far
exceeded the scope of her consent. The autopsy evidence indicated she had been beaten.
After telling her mother she would be home in about 30 minutes, the home to which she
returned is eternal. But neither the jury nor this Court are here to judge the morality of
the conduct in which these adults were engaged. The question for the jury to answer was
whether her death was murder, and if not murder, was it manslaughter, and if not
manslaughter, was it criminally negligent homicide. Our job is to determine if the trial
court made an error that affected the judgment.
The State conceded at oral argument that the jury charge for murder erroneously
included a definition of “intentionally.” The charge included a definition of
“intentionally” with regard to the “nature of conduct” when “result of conduct” was the
only proper mens rea for the conduct at issue, murder. The definition in the charge was
not “tailored” to the offense as required. See Price v. State, 457 S.W.3d 437, 441 (Tex. Crim.
App. 2015) (“A trial court errs when it fails to limit the language in regard to the
applicable culpable mental states to the appropriate conduct element.”). Appellant’s only
objection to the charge, and thus his focused objection, was that the definition of
intentionally should be limited as appropriate for the “result” of conduct as indicted,
murder. The charge was erroneous. Thus, the only question for this Court in this single-
issue appeal is no longer about first determining whether the charge was erroneous.
Rather, the sole question now is whether appellant suffered “some” harm. Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).
Murder is a result of conduct offense. Schroeder v. State, 123 S.W.3d 398, 400 (Tex.
Crim. App. 2003). Appellant choked Jade. Jade died as a result. Did appellant intend
the result? That was one option in the charge available to the jury. There were at least
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five different ways, manner and means, that would allow an affirmative answer to that
question. An affirmative answer to that question found adequate support in the record
on at least three of the manner and means. While the evidence is considered as one of the
factors in the Davis analysis as described in Almanza, see Almanza v. State, 686 S.W.2d 157,
174 (Tex. Crim. App. 1985) (citing Davis v. State, 13 S.W. 994, 995 (1890)), this is not the
traditional sufficiency of the evidence analysis of Jackson v. Virginia. See Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). But the charge included an
admittedly erroneous definition of “intentionally” that allowed the jury to convict the
appellant if he intended to choke Jade. That he intended to choke Jade was not disputed.
But because of the erroneous definition of “intentionally” in the charge, the jury could
find him guilty of murder based on conduct that does not constitute murder.
We must determine if the error in the definition of “intentionally” as included in
the jury charge caused “some” harm. As the Court of Criminal Appeals recently stated
in Jordan v. State, 593 S.W.3d 340 (Tex. Crim. App. 2020):
"Some harm" means actual harm and not merely a theoretical complaint.
Cornet v. State, 417 S.W.3d 446, 449 (Tex. Crim. App. 2013); Sanchez v. State,
376 S.W.3d 767, 775 (Tex. Crim. App. 2012). Reversal is required if the error
was calculated to injure the rights of the defendant. Cornet, 417 S.W.3d at
449 (quoting Almanza, 686 S.W.2d at 171).
To assess harm, we must evaluate the whole record, including the jury
charge, contested issues, weight of the probative evidence, arguments of
counsel, and other relevant information. See Cornet, 417 S.W.3d at 450;
Almanza, 686 S.W.2d at 171. The record in this case demonstrates some
harm because the only contested issue was self-defense, and the failure of
the self-defense instructions to reference "Royal or others" made rejection
of the defense inevitable.
Id. at 347.
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Where I believe I differ from the analysis of my colleagues is whether there is
“actual” not merely “theoretical” harm. I have read many cases that mention the topic.
The articulation of the test is the same for “egregious” harm versus “some” harm in that
both mean “actual” harm and not merely a “theoretical” complaint. But surely, the test
must have some difference as to the actual versus theoretical nature of the harm;
otherwise, how are we to consistently apply a standard for determining the extent of the
harm? There are a lot more cases that discuss “egregious harm,” and finding such harm
is exceedingly rare. I believe that, even under those cases, this case could very well be
egregious harm.
And if this were a civil proceeding, there would be no question about what we had
to do. If the jury is charged on both a proper and an improper theory of liability and the
charge is objected to by the party against whom the question is answered, the error in the
charge is harmful because the party is unable to know, and therefore unable to show on
appeal, that the answer is based on the improper theory. See Crown Life Ins. Co. v. Casteel,
22 S.W.3d 378, 389 (Tex. 2000). The test to overturn a civil judgment for money because
of jury charge error is thus easier to meet than when the result might be an erroneous life
conviction in a criminal case. If just one juror looked at the definition of intentionally and
voted to convict appellant of murder because, at the very least appellant intended to
choke Jade (nature of conduct) and she died as a result, appellant has been convicted on
conduct that is not murder and had no ability to show actual harm. The definition
erroneously given takes from appellant his only viable defense against the charge of
murder.
Campbell v. State Page 4
No party has a duty to show or prove the presence or absence of harm. Warner v.
State, 245 S.W.3d 458, 464 (Tex. Crim. App. 2008) (“To dispel any lack of clarity in our
cases, we affirm that burdens of proof or persuasion have no place in a harm analysis
conducted under Almanza.”); Ovalle v. State, 13 S.W.3d 774, 787 (Tex. Crim. App. 2000);
see also Elizondo v. State, 487 S.W.3d 185, 205 (Tex. Crim. App. 2016) (“Neither Elizondo
nor the State has the burden with regard to showing or proving harm. We must make
our own assessment as to whether harm occurred.”). As the reviewing court, we have an
independent duty to determine if appellant was harmed by the improper definition of
“intentionally” included in the charge. No jury note stating, “Under the definitions in
the charge, do we all have to agree that he intended to cause her death or only that he
intended to choke her” was sent out of the jury room. If that is what it takes for us to
determine that this is “actual” and not “theoretical” harm, then there will be few cases
ever reversed because of charge error. I do not think the test is, or should be, so
demanding. In reading the closing arguments, because the charge allowed a conviction
on merely the intent to choke Jade, appellant’s trial attorney could not argue that, while
appellant intended to choke Jade to heighten the sexual pleasure, he did not intend to kill
her. To dance around this issue, the argument was made that the death was an
“accident.” Well, the jury knew, and the State argued, that this, choking Jade, was no
“accident.”
To paraphrase the last sentence from Jordan quoted above as applicable to the
relevant evaluation in this case:
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The record in this case demonstrates some harm because the only contested
issue was intent, and the failure of the definition of “intentionally” to limit
the relevant conduct to intending the result made the finding of murder all
but inevitable.
The death of this single mother and the circumstances which caused her to be in
this situation are exceedingly tragic. But I would have to hold that based on the law as
applied to this case as tried, defended, and charged, we must reverse the conviction and
remand it for a new trial. Because the Court affirms the trial court’s judgment of
conviction, I respectfully dissent.
TOM GRAY
Chief Justice
Dissenting opinion delivered and filed May 19, 2021
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