Clevert Lee Tyler v. State ( 2018 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-16-00253-CR
____________________
CLEVERT LEE TYLER, Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 12-14509
________________________________________________________ _____________
MEMORANDUM OPINION
A grand jury indicted Clevert Lee Tyler1 (Tyler) for “intentionally and
knowingly caus[ing] the death of . . . [S.V.], hereafter styled the Complainant, by
shooting Complainant with a deadly weapon, to wit: a firearm[.]”2 A jury convicted
1
Clevert Lee Tyler is also known as Cleveland Lee Tyler.
2
We identify the victim and family members by using initials. See Tex. Const.
art. I, § 30(a)(1) (granting crime victims the “right to be treated with fairness and
with respect for the victim’s dignity and privacy throughout the criminal justice
process”).
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Tyler of murder and assessed punishment at life in prison. See Tex. Penal Code Ann.
§ 19.02(b)(1) (West 2011). Tyler timely filed a notice of appeal. In his first two
appellate issues, Tyler challenges the legal sufficiency of the evidence supporting
his conviction. In his third issue, he argues the trial court abused its discretion in
denying his request for a jury instruction on the lesser-included offense of
manslaughter. We affirm.
The Evidence
Angie Conley, a Beaumont 911 dispatch supervisor, testified that on or about
June 12, 2012, she received a call through the 911 system from a person who
identified himself as Tyler, and Conley dispatched officers to 1208 Harrison Street
in reference to the call. A recording of the 911 call was admitted into evidence and
published to the jury. In the recording played for the jury, the caller reported that he
had just killed his girlfriend by shooting her “between the eyes with a 9.”
Officer Matthew Bean with the Beaumont Police Department testified that on
or about the evening of June 12, 2012, he was an officer with the street crimes unit
and was dispatched to 1208 Harrison Street in reference to a shooting. Officer Bean
testified he came into contact with Tyler in the back yard of the residence and
ordered Tyler to the ground for the safety of the officers at the scene. According to
Officer Bean, after Tyler complied and was placed in handcuffs, Officer Bean
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located a pistol on top of the trunk of a vehicle in the driveway area and officers read
Tyler his Miranda rights. Officer Bean testified that Tyler attempted to direct the
officers to the location of the victim’s body, but the officers could not discern the
directions. According to Officer Bean, Tyler accompanied the officers in a patrol car
and guided them to a remote location where the officers located the victim’s
deceased body face-down in the roadway with blood pooled around her head. Officer
Bean testified that he learned from other officers that the victim was S.V.
S.V.’s twenty-five-year-old daughter, J.A., testified that she went to her
mother’s home in Beaumont on the morning of June 12, 2012, and that at that time
her mother lived about a block away from Tyler, whom her mother had been dating
for almost a month. According to J.A., she had stopped by her mother’s home
because her mother was concerned about text messages sent by Tyler. J.A. testified
that on that morning her mother seemed nervous and scared of Tyler, and J.A.
advised her mother before leaving that she should leave Tyler alone. J.A. testified
that after she got home from work that evening, she went to her grandmother’s home
and received a disturbing call from her sister regarding their mother. According to
J.A., she and her grandmother went to S.V.’s home and saw police cars at Tyler’s
home. J.A. testified she was concerned and went to talk to the police, who asked her
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to go back home and wait. J.A. testified that she learned from law enforcement later
that night that her mother had been a victim of a possible homicide.
S.B., Tyler’s niece, testified that Tyler was living with her grandmother at
1208 Harrison Street on or about June 12, 2012, and that S.B. had been at the house
all day. According to S.B., Tyler and his girlfriend, S.V., were at the house that day
for a couple of hours, and Tyler had told S.B. that he thought S.V. was cheating on
him. S.B. testified that she witnessed them talking outside and Tyler was being
“stern[]” and “[g]etting that point across.” S.B. testified that Tyler seemed “[k]ind
of aggravated[,]” and S.V. seemed “[t]imid.” S.B. testified that Tyler had a gun in
his pants that day, and although she did not remember him pulling the gun out, she
acknowledged at trial that in her statement to law enforcement she had reported that
Tyler waived a gun in S.V.’s face and then put it back in his pants. According to
S.B., Tyler then started drinking beer with a smirk on his face. According to S.B.’s
statement, before Tyler and S.V. left, Tyler asked S.V. to go into the bathroom, S.V.
looked scared, they argued in the bathroom, S.V. left the bathroom and looked like
she was crying, S.V. left the house, Tyler stayed in the bathroom a little longer, and
then Tyler also left the house. S.B. acknowledged at trial that at the time Tyler felt
like S.B. was taking S.V.’s “side[,]” that Tyler told S.B. that she should be on “his
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side[]” because they were family, and S.B. told Tyler that “right is right and wrong
is wrong[.]”
Stacie Gardener testified that on June 12, 2012, she was a crime scene
technician with the Beaumont Police Department and was dispatched to 1208
Harrison in regards to a victim of a shooting. Video recordings and photos taken by
law enforcement of 1208 Harrison after the 911 call and the scene where the body
was located were admitted into evidence. She testified that there was a 9mm gun on
the trunk of a vehicle “in a driveway that was kind of far back from the house[.]”
Gardener testified that Tyler said that between the time he shot S.V. and when the
gunshot residue kit had been administered on him he had driven a car, smoked a
cigarette, and drank a beer.
Officer Christopher Daniels with the Beaumont Police Department testified
that he responded to 1208 Harrison Street and read Tyler his Miranda warnings.
Daniels testified that his patrol car video system recorded Tyler being transported to
where Tyler said the body was located. According to Officer Daniels, Tyler said that
he “murdered somebody[,]” he and S.V. had had an argument, and he shot her
between the eyes. The patrol car video recording was admitted and played for the
jury. Officer Daniels testified that he retrieved a spent 9mm casing from near S.V.’s
body.
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Officer Robert Riley, who was a police officer with the Beaumont Police
Department in 2012, testified that he arrived at 1208 Harrison Street after Tyler had
been read his Miranda warnings. According to Officer Riley, Tyler said he had
murdered his girlfriend by shooting her and that he could take the officers to where
the body was located, which was about three-fourths of a mile away. Officer Riley
testified that Tyler was taken to the Beaumont Police Department to speak to
detectives and that he appeared calm during the recorded interview. According to
Officer Riley’s report, Tyler stated that when he realized he had pulled the trigger
he blacked out and went into shock.
Detective Charla Phillips with the Beaumont Police Department testified that
she arrived on the scene at about ten o’clock at night on June 12, 2012, she was
advised to go to the station, and she learned that Tyler wanted to speak with
detectives. Detective Phillips testified that Tyler was given his Miranda warnings,
stated that he understood the warnings, signed the warnings, and voluntarily agreed
to an interview by Detective Phillips and Detective Pratt. According to Detective
Phillips, Tyler told them that he murdered S.V. Detective Pratt testified that Tyler
appeared to be honest and calm during the interview. According to Detective Pratt,
Tyler stated that S.V. dropped to her knees and raised her hands prior to him pulling
the trigger.
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Juan Rojas, a trace evidence examiner with the Texas Department of Public
Safety Crime Lab, testified that he tested the gunshot residue kit in this case collected
from Tyler, and the kit tested positive for gunshot residue. Sue Kelly, a crime scene
technician for the Beaumont Police Department, testified that she attended the
autopsy of S.V. and took photographs. According to Kelly, the photographs she took
show that S.V. had a wound to her forehead, and the doctor performing the autopsy
removed a bullet from S.V.’s head and gave it to Kelly for evidentiary purposes.
Deputy Bradley Bruns with the Harris County Sheriff’s Department testified that in
2012 he was a firearms and tool mark examiner, he examined the 9mm firearm and
the shell casing recovered in this case, and that, in his opinion, the shell casing was
fired from the 9mm firearm submitted for testing.
Tyler testified that he was diagnosed with schizophrenia, has problems with
his memory and has blackouts, hears voices, and “experience[s] extreme paranoid
thoughts.” According to Tyler, he did not remember all of the events on the day of
S.V.’s death, but that he remembered that he intended “to scare her and not to shoot
her and all of a sudden the gun just went off.” He testified he did not remember
pulling the trigger and he explained he was “deeply remorseful.”
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Legal Sufficiency
In issues one and two, Tyler argues the evidence was legally insufficient to
prove that he knowingly and intentionally committed the alleged offense of murder.
Specifically, Tyler contends that the evidence the State presented arguably could
support a conviction for causing S.V.’s death recklessly or by criminal negligence,
but not that Tyler had the requisite mens rea or that he intentionally or knowingly
caused S.V.’s death.
In reviewing the legal sufficiency of the evidence, we review all the evidence
in the light most favorable to the verdict to determine whether any rational fact finder
could have found the essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007). The fact finder is the ultimate authority on the credibility
of witnesses and the weight to be given their testimony. See Penagraph v. State, 623
S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981). We give deference to the fact
finder’s responsibility to fairly resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Hooper, 214 S.W.3d at 13. If the record contains conflicting inferences, we must
presume that the fact finder resolved such facts in favor of the verdict and defer to
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that resolution. Brooks v. State, 323 S.W.3d 893, 899 n.13 (Tex. Crim. App. 2010);
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
We also “‘determine whether the necessary inferences are reasonable based
upon the combined and cumulative force of all the evidence when viewed in the light
most favorable to the verdict.’” Clayton, 235 S.W.3d at 778 (quoting Hooper, 214
S.W.3d at 16-17). “Direct and circumstantial evidence are treated equally:
‘Circumstantial evidence is as probative as direct evidence in establishing the guilt
of an actor, and circumstantial evidence alone can be sufficient to establish guilt.’”
Id. (quoting Hooper, 214 S.W.3d at 13).
As previously discussed, the jury is the sole judge of the witnesses’ credibility
and the weight to be given to their testimony. Jackson, 443 U.S. at 318-19; see also
Hooper, 214 S.W.3d at 13. Viewing the evidence in the light most favorable to the
verdict, the jury could have reasonably concluded, beyond a reasonable doubt, that
Tyler committed the offense of murder. See Tex. Penal Code Ann. § 19.02(b)(1);
Jackson, 443 U.S. at 318-19; Hooper, 214 S.W.3d at 13; see also Brooks, 323
S.W.3d at 899; Clayton, 235 S.W.3d at 778. We overrule issues one and two.
Request for Jury Instruction
In his third issue, Tyler contends the trial court abused its discretion by
denying Tyler’s request for a jury instruction for the lesser-included offense of
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manslaughter. According to Tyler, he was entitled to the lesser-included offense
instruction because there was some evidence that he recklessly, not intentionally or
knowingly, caused S.V.’s death, and that “[i]t was up to the jury to determine the
strength and believability of this evidence[.]”
“[A] lesser-included offense instruction shall be included in the jury charge
if: (1) ‘the requested charge is for a lesser-included offense of the charged offense;
and (2) there is some evidence that, if the defendant is guilty, he is guilty only of the
lesser offense.’” Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006)
(quoting Hayward v. State, 158 S.W.3d 476, 478 (Tex. Crim. App. 2005)).
To determine whether the requested charge is for a lesser-included offense of
the charged offense, we examine the pleadings and make this determination as a
question of law. Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007). Because
manslaughter is a lesser-included offense of murder, the first prong of the test is
satisfied. See Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012);
Cardenas v. State, 30 S.W.3d 384, 392 (Tex. Crim. App. 2000); see also Tex. Code
Crim. Proc. art. 37.09(3) (West 2006). In order to satisfy the second prong of the
test, there must be some evidence that would allow a rational jury to find that if Tyler
was guilty, he was guilty only of manslaughter. See Guzman, 188 S.W.3d at 188-89.
In this step, anything more than a scintilla of evidence may be sufficient to entitle a
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defendant to a lesser-included charge. Hall, 225 S.W.3d at 536. “[T]he evidence
must establish the lesser-included offense as ‘a valid, rational alternative to the
charged offense.’” Id. (quoting Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim.
App. 1999)).
On appeal, Tyler does not point this Court to any specific evidence in support
of his argument. Manslaughter would require a finding that Tyler recklessly caused
S.V.’s death. See Tex. Penal Code Ann. § 19.04 (West 2011). In determining
whether there is evidence to support a charge on recklessness, a statement that a
defendant did not intend to kill the victim “cannot be plucked out of the record and
examined in a vacuum.” Godsey v. State, 719 S.W.2d 578, 584 (Tex. Crim. App.
1986).
To raise manslaughter, Tyler must have presented affirmative evidence that
he recklessly caused S.V.’s death, specifically that he was aware of, but consciously
disregarded, a substantial and unjustifiable risk that the result—a death—would
occur. See Roy v. State, 509 S.W.3d 315, 317-18 (Tex. Crim. App. 2017). Tyler
testified that he only intended to scare S.V. According to Tyler, he blacked out when
he pulled the trigger, and he does not remember what happened. This evidence,
however, does not demonstrate that Tyler recklessly caused the death of S.V. See
Tex. Penal Code Ann. § 6.03(c) (West 2011) (defining “recklessly”); Schroeder v.
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State, 123 S.W.3d 398, 400-01 (Tex. Crim. App. 2003) (Appellant who testified that
he remembered the events leading up to the shooting but suddenly “blacked out” and
had no recollection of actually shooting the victim could not have been aware of
having caused the victim’s death at the time of the shooting; the trial court did not
err by not submitting to the jury a manslaughter charge as a lesser-included offense
because “[e]vidence of a defendant’s inability to remember causing the death of the
victim does not entitle the defendant to a charge on the lesser-included offense of
manslaughter[.]”).
Tyler’s niece testified that Tyler and S.V. had argued that day and that Tyler
was upset with S.V. because he believed she was “cheating on him[.]” In his
statement to law enforcement, Tyler admitted that he drove S.V. to a remote location,
he intended to scare her, that he pointed the gun at her, that she got on her knees and
put her hands up, and that he shot S.V. in the head. In light of the other evidence
showing that Tyler acted intentionally and knowingly, and considering the entire
record, we conclude that the evidence does not show that, if Tyler is guilty, he is
guilty only of acting recklessly. See Cavazos, 382 S.W.3d at 385 (“Pulling out a gun,
pointing it at someone, pulling the trigger twice, fleeing the scene . . . , and later
telling a friend ‘I didn’t mean to shoot anyone’ does not rationally support an
inference that Appellant acted recklessly at the moment he fired the shots. The
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evidence here does not support a finding of recklessness and does not rise to level
that would convince a rational jury to find that if Appellant is guilty, he is guilty of
only the lesser-included offense.”); see also Cardenas, 30 S.W.3d at 393.
Under the circumstances of this case, we cannot say that the trial court
improperly denied Tyler’s request for a jury instruction on the lesser-included
offense of manslaughter. We overrule issue three. We affirm the trial court’s
judgment.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on July 31, 2017
Opinion Delivered March 7, 2018
Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.
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