Omari Tafari Chambers v. the State of Texas ( 2021 )

Affirmed and Memorandum Opinion filed September 2, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00616-CR
OMARI TAFARI CHAMBERS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 1626262
MEMORANDUM OPINION
Appellant Omari Chambers appeals his conviction for manslaughter. After a
jury convicted him, the trial court assessed punishment at fifteen years in prison. In
two issues, appellant contends that the trial court erred in (1) admitting a recording
of his oral statement into evidence when the recording equipment failed to record
approximately the final three minutes of the statement, and (2) refusing to instruct
the jury on the lesser-included offense of negligent homicide. We affirm.
Background
According to several witnesses, including complainant’s girlfriend Ashley
Lane, in the evening of July 22 and early morning of July 23, 2017, complainant
had been drinking and had become intoxicated. Complainant was on the shared
balcony at his apartment complex with his girlfriend and some neighbors. At some
point, appellant rode up to the complex on his bicycle and asked someone on the
balcony where someone else was. Complainant threatened, cursed, and yelled at
appellant. Some witnesses said appellant argued back. Eventually, complainant
went down the staircase toward appellant and got within a couple of feet of him,
still yelling and cursing. At this time, appellant said that he did not want to argue
with or fight complainant and rode away on his bicycle. One witness said that the
two shook hands before appellant left. Complainant continued to be combative
with others on the balcony, and all except complainant and Lane eventually left the
balcony.
A short time later, appellant returned to the apartment complex and a second
confrontation occurred. According to Lane, she had gone inside her apartment to
get her purse, and when she came back outside, she saw appellant about halfway
up the staircase. Complainant, who was unarmed, was standing at the top of the
stairs and kicked his leg out, apparently to keep appellant from coming further up
the stairs. Lane explained that it was not a full kick, that complainant did not fully
extend his leg but appeared to be trying to keep appellant from coming further up
the stairs. Lane also said that she did not see the kick contact appellant. After
complainant kicked out, appellant lunged forward. Lane said that she could not see
what was in appellant’s hand when he lunged forward, but immediately afterwards,
complainant began bleeding from his leg. Appellant went down the stairs and fled
the scene. A couple of witnesses from the neighboring apartment reported hearing
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Lane scream.
Complainant lay on the staircase until EMS transported him to the hospital
where he subsequently died. An autopsy listed the cause of death as a laceration of
the femoral artery of complainant’s left leg.
Appellant was apprehended nearby that same morning while riding his
bicycle. The arresting officer noticed blood on appellant’s hands and on a towel
found near the spot of the arrest. Blood was also later discovered on appellant’s
shoes. The arresting officer took appellant back to the scene where he was
identified by witnesses.
Appellant was interrogated by Pasadena Police Detective Chris MacGregor,
and a video recording of the interrogation was played at trial. The video is slightly
over two hours and forty-four minutes long but ends abruptly before the
interrogation concludes. Early in the video, appellant acknowledged having the
initial confrontation with complainant, explaining that complainant was drunk and
aggressive but no physical contact occurred. For most of the video, appellant
denied returning to the complex or even knowing what happened to complainant.
At around the 2:35 mark, appellant stopped denying MacGregor’s accusations.
Appellant then said “it wasn’t even an argument” and asserted complainant threw
his foot out and was going to kick appellant down the stairs. At around 2:40,
appellant acknowledged stabbing complainant with a small black pocketknife. He
demonstrated the motion that he used to stab complainant and said that the knife
remained in complainant’s leg when appellant left down the stairs. The video
recording abruptly stops at 2:44:17 while appellant is talking about what being in
prison is like.
At a pretrial hearing on appellant’s motion to suppress the video recording,
appellant called Ryan Marshall to testify. Marshall is a business systems analyst
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for the City of Pasadena and provides technical support to the police department
and their Genatech videorecording system. He said that after the system was
installed in 2014 or 2015, they experienced occasional problems with the system
such as poor recording quality, failure to record, and staff training issues. In the
2016-17 period, they were having “consistent problems” with the system, such as
server errors like not having enough memory to save recordings, training problems,
camera and microphone configuration issues, and retention policy problems. He
also acknowledged there had been problems when recordings would stop before
interviews were completed, but he was unaware of any hardware problem causing
the stoppage. Marshall said that during that period, he was being called for
assistance with the system less than ten times a week. He denied, however, that it
was common knowledge within the police department or the technology
department that the system was causing problems.
Marshall explained that the premature stopping of a recording could be due
to hardware or software issues, user intervention, or motion and sound detectors
being misread by the system. Marshall did not specifically recall any problems
related to the video recording at issue in this case.
Appellant also called MacGregor to testify. He testified that he knows how
to work the Genatech system and was the person who started it for appellant’s
interview and the system was working at that time. MacGregor explained that
when he went to download the video, he discovered that the last few minutes of the
interview had not been recorded. To his knowledge, neither he nor anyone else
turned the system off prematurely. He explained that he would have heard the
toggle switch if someone else had done it. He acknowledged that this was not the
first time that he had had an issue like this with the Genatech system, but he
described the issues as “pretty infrequent.” MacGregor estimated that two to four
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minutes of the interview had been cut off, saying, “It was at the very end when we
were just discussing the knife issue . . . the type of knife and then where he had
disposed of it.” MacGregor also said that they have resolved the issues with the
system and have not been having any issues lately. On cross-examination,
MacGregor agreed that the interview was going well for the investigation and there
would have been no reason for him to turn off the recording while appellant was
making incriminating statements.
In the order denying the motion to suppress, the trial court found that the
Genatech system was capable of making an accurate recording at the time of
appellant’s interview but did not always do so. The court also found that there was
no evidence that the portion of the interview that did record was altered or
otherwise inaccurate or that the unrecorded portion contained evidence that would
alter the impact of the recording such as a recantation. The trial court noted that the
recording contained no interruptions or restarts, just a small missing segment at the
end of the interview.
Appellant objected again when the video was offered into evidence during
trial, and the trial court overruled that objection. At the conclusion of trial, the jury
was instructed on murder, the lesser-included offense of manslaughter, and self-
defense, but the trial court denied appellant’s request for an instruction on the
lesser-included offense of criminally negligent homicide. The jury convicted
appellant of manslaughter. After appellant pleaded true to a previous conviction for
the felony offense of attempted robbery, the trial court assessed punishment at
fifteen years in prison.
The Incomplete Recording
In his first issue, appellant challenges the trial court’s admission of the
video-recorded interrogation into evidence. Specifically, appellant contends that
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the video was inadmissible because it was made using equipment that was
incapable of making an accurate recording and it was incomplete.
Governing law. Appellant’s issue implicates Texas Code of Criminal
Procedure article 38.22, section 3(a)(3). Section 3(a) states in full:
Sec. 3. (a) No oral or sign language statement of an accused made as a
result of custodial interrogation shall be admissible against the
accused in a criminal proceeding unless:
(1) an electronic recording, which may include motion picture, video
tape, or other visual recording, is made of the statement;
(2) prior to the statement but during the recording the accused is given
the warning in Subsection (a) of Section 2 above and the accused
knowingly, intelligently, and voluntarily waives any rights set out in
the warning;
(3) the recording device was capable of making an accurate
recording, the operator was competent, and the recording is
accurate and has not been altered;
(4) all voices on the recording are identified; and
(5) not later than the 20th day before the date of the proceeding, the
attorney representing the defendant is provided with a true, complete,
and accurate copy of all recordings of the defendant made under this
article.
Tex. Code Crim. Proc. art. 38.22, § 3(a) (emphasis added).
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). As
long as the court’s ruling is within the zone of reasonable disagreement, we will
not disturb the ruling. Id. We afford almost total deference to a trial court’s
determination of historical facts that the record supports, especially when the trial
court’s findings are based on an evaluation of credibility and demeanor. Guzman v.
State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Mixed questions of law and fact,
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also known as application of law to fact questions, are reviewed de novo unless the
resolution of those ultimate questions turns on credibility and demeanor. Id. Video
evidence is viewed in the light most favorable to the trial court’s ruling, but if the
video evidence does not support the trial court’s conclusions regarding the video,
we must disregard those conclusions. See Tucker v. State, 369 S.W.3d 179, 185
(Tex. Crim. App. 2012).
Section 3(e) of article 38.22 provides that courts must strictly construe
subsection (a) and may not interpret subsection (a) as making admissible a
statement unless all requirements of the subsection have been satisfied by the State,
with two inapplicable exceptions. Tex. Code Crim. Proc. art. 38.22 § 3(e). In other
words, section 3(e) requires strict compliance with all portions of section 3(a). See
Woods v. State, 152 S.W.3d 105, 116 (Tex. Crim. App. 2004); Davidson v. State,
25 S.W.3d 183, 186 (Tex. Crim. App. 2000). Accordingly, all of section 3(a)(3)’s
requirements, that “[1] the recording device was capable of making an accurate
recording, [2] the operator was competent, and [3] the recording is accurate and
has not been altered,” must be met for a recorded statement to be admissible. Tex.
Code Crim. Proc. art. 38.22 § 3(a)(3). Appellant argues that the recording device in
this case was incapable of making an accurate recording and that the incomplete
nature of the recording means that the recording was inaccurate and altered.
Misplaced reliance. Appellant bases much of his argument on an
unpublished plurality opinion from the Court of Criminal Appeals, which held that
a videorecording of a defendant’s interview with police was inadmissible under
article 38.22, section 3(a)(3) where approximately 30 minutes in the middle of the
interview was missing, there was evidence that multiple relevant statements went
unrecorded, and the State used the missing minutes to undermine the defendant’s
trial testimony. Flores v. State, No. PD-1189-15, 2018 WL 2327162, at *1-3, 5, 8
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(Tex. Crim. App. May 23, 2018) (plurality op.) (not designated for publication).
Unpublished opinions of the Court of Criminal Appeals “have no precedential
value and must not be cited as authority by counsel or by a court.” Tex. R. App. P.
77.3 (emphasis added). Accordingly, the holding in Flores and the reasoning in the
plurality opinion do not control our analysis in this case. See Munoz v. State, No.
08-19-00072-CR, 2020 WL 6375333, at *4 n.1 (Tex. App.—El Paso Oct. 30,
2020, pet. ref’d) (not designated for publication) (explaining appellant’s reliance
on Flores was misplaced).
Capable of recording. Appellant first briefly argues that the videorecording
in this case did not meet the requirements of subsection 3(a)(3) because the
Genatech system used to make the recording was incapable of making an accurate
recording. Appellant bases this argument on the testimony from Detective
MacGregor and IT analyst Marshall regarding problems the system was
experiencing during the relevant period. Marshall described the problems as
“occasional” and “consistent” and said he was being called for assistance less than
ten times a week during that time. However, he described a range of problems
being encountered with the system, not all of which would necessarily result in an
inaccurate recording. MacGregor described the problem of the system prematurely
stopping as “pretty infrequent.” Although this evidence clearly indicates there were
problems with the Genatech system, such problems do not appear to have risen to
the level of rendering the system incapable of making an accurate recording. In
fact, a logical conclusion from the evidence would be that the system usually
recorded properly. Accordingly, the trial court did not abuse its discretion in
concluding that the system was capable of making an accurate recording at the
time of appellant’s interview, and we defer to that conclusion. See Guzman, 955
S.W.2d at 89.
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Accurate and unaltered. Appellant next argues that the recording was
altered or inaccurate because the recording stopped before the interview was
completed. MacGregor estimated that the last two to four minutes of the interview
went unrecorded. The State points out that the last two minutes and fifty-one
seconds of the video shows a static, frozen image and suggests that this was the
amount of time between when the system stopped recording and MacGregor turned
off the system. There is no explanation in the record, however, regarding this static
image, but regardless, the only evidence indicates two to four minutes were not
recorded. MacGregor indicated that during this last small portion of the interview,
they “were just discussing the knife issue . . . the type of knife and then where he
had disposed of it.” The last of the recorded part of the interview corroborates this
to a degree as it shows them discussing the knife shortly before the recording ends.
Nothing on the video or otherwise in evidence suggests that anything
exculpatory was said during the unrecorded portion of the interview. As described
above, appellant had already admitted to stabbing complainant earlier in the
recorded portion, and appellant had made statements setting up his claim of
self-defense. Moreover, nothing in evidence suggests that the failure to record was
intentional; to the contrary, the evidence shows it to be accidental. The recording
system periodically had problems including untimely, uncontrolled stopping.
Accordingly, “the evidence supports the position that the [video] was accurate and
had not been impermissibly ‘altered’ in the sense contemplated by Article 38.22[,]
§ 3(a)(3).” Maldonado v. State, 998 S.W.2d 239, 245 (Tex. Crim. App. 1999)
(affirming admission of video that contained gaps of a few seconds in the
conversation because the evidence supported the conclusion that the anomalies
occurred accidentally and obscured nothing of value in the dialogue); see also
Denison v. State, No. 01-17-00658-CR, 2019 WL 1186662, at *5-7 (Tex. App.—
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Houston [1st Dist.] Mar. 14, 2019, no pet.) (mem. op., not designated for
publication) (affirming admission of video when parts were inaudibly muffled but
record supported trial court’s conclusion that the cause was “appellant’s ‘soft-
spoken’ speech”); Baez v. State, No. 14-07-00426-CR, 2008 WL 4915682, at *3
(Tex. App.—Houston [14th Dist.] Nov. 18, 2008, pet. ref’d) (mem. op., not
designated for publication) (affirming admission of video under Maldonado and
subsection 3(a)(3) despite low audio quality and “electronic hum” that rendered
parts inaudible); Vasquez v. State, No. 07-01-00232-CR, 2002 WL 737369, at *7–8
(Tex. App.—Amarillo Apr. 26, 2002, pet. ref’d) (not designated for publication)
(affirming admission of video when recording equipment inadvertently stopped
recording part of the conversation but no evidence indicated the missing portion
contradicted or negated the recorded confession).
The trial court was free to believe MacGregor’s testimony regarding the
cause and content of the unrecorded portion at the end of the interview, and we
must defer to the trial court’s determination because it concerns an assessment of
credibility. See Guzman, 955 S.W.2d at 89. The trial court did not abuse its
discretion in refusing to suppress the recorded statement. See Maldonado, 998
S.W.2d at 245-46. We therefore overrule appellant’s first issue.
Lesser-Included Offense Instruction
In his second issue, appellant contends that the trial court erred in refusing to
instruct the jury on the lesser-included offense of criminally negligent homicide.
Appellant was charged with murder, and the trial court instructed the jury on the
elements of murder, the lesser-included offense of manslaughter, and self-defense.
The trial court denied appellant’s additional request for an instruction on criminally
negligent homicide.
Governing law. We review a trial court’s refusal to instruct the jury on a
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lesser-included offense for an abuse of discretion. See Threadgill v. State, 146
S.W.3d 654, 666 (Tex. Crim. App. 2004); Chaves v. State, No. 01-19-00524-CR,
2021 WL 2231246, at *7 (Tex. App.—Houston [1st Dist.] June 3, 2021, no pet. h.).
In considering whether a lesser-included offense instruction should have been
given, we analyze whether the elements of the lesser-included offense are included
within the proof necessary to establish the elements of the charged offense and
whether there is evidence in the record that could allow a jury to rationally find the
defendant guilty of only the lesser-included offense. See State v. Meru, 414 S.W.3d
159, 161 (Tex. Crim. App. 2013).
The latter step requires an examination of all the evidence admitted at trial,
not just the evidence presented by the defendant. Bullock v. State, 509 S.W.3d 921,
925 (Tex. Crim. App. 2016). Although anything more than a scintilla of evidence
may be sufficient to entitle a defendant to a lesser-included offense instruction, the
evidence must establish the lesser-included offense as a valid, rational alternative
to the charged offense. Id. It is not enough that the jury may disbelieve crucial
evidence pertaining to the greater offense. Skinner v. State, 956 S.W.2d 532, 543
(Tex. Crim. App. 1997). Rather, there must be some evidence directly germane to
a lesser-included offense for the factfinder to consider before an instruction on a
lesser-included offense is warranted. Id. Mere speculation is not sufficient to meet
this threshold. Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012).
Lesser-included offense. It is well established that criminally negligent
homicide is a lesser-included offense of murder and of manslaughter. Tex. Code
Crim. Proc. art. 37.09 (definition of lesser included offense); compare Tex. Penal
Code §§ 19.02 (murder) with .05 (criminally negligent homicide) and .04
(manslaughter); see, e.g., Gonzalez v. State, 616 S.W.3d 585, 594 (Tex. Crim. App.
2020) (criminally negligent homicide); Britain v. State, 412 S.W.3d 518, 520 (Tex.
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Crim. App. 2013) (manslaughter). We therefore turn to the second step and
consider whether there is evidence in the record that could allow a jury to find the
defendant guilty of only criminally negligent homicide. See Meru, 414 S.W.3d at
161.
The evidence. Criminally negligent homicide includes all the elements of
manslaughter except for manslaughter’s higher culpable mental state. Britain, 412
S.W.3d at 520. To be convicted of manslaughter, an accused must be found to have
been reckless—meaning, with respect to circumstances surrounding the actor’s
conduct or the result of that conduct, to be aware of but consciously disregard a
substantial and unjustifiable risk of death that was of such a nature and degree that
its disregard constituted a gross deviation from the standard of care that an
ordinary person would exercise under all the circumstances as viewed from the
actor’s standpoint. Tex. Penal Code §§ 1.07 (43), 6.03(c) (definition of reckless);
see also Masterson v. State, 155 S.W.3d 167, 172 (Tex. Crim. App. 2005). To be
convicted of criminally negligent homicide, an accused must be found to have
acted with criminal negligence—meaning, with respect to circumstances
surrounding the actor’s conduct or the result of that conduct, that the actor ought to
have been aware of a substantial and unjustifiable risk of death that was of such a
nature and degree that the failure to perceive it constituted a gross deviation from
the standard of care that an ordinary person would exercise under all the
circumstances as viewed from the actor’s standpoint. Tex. Penal Code §§ 1.07
(15), 6.03(d) (definition of criminal negligence). In short, in order for appellant to
be entitled to an instruction on criminally negligent homicide in addition to the
manslaughter instruction, there needs to be evidence in the record indicating
appellant was not aware of the risk associated with his conduct. See Haley v. State,
396 S.W.3d 756, 769 (Tex. App.—Houston [14th Dist.] 2013, no pet.); see also
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Mendieta v. State, 706 S.W.2d 651, 652 (Tex. Crim. App. 1986). Such evidence,
like for all mental states, is typically drawn through inference from the
circumstances and not from direct evidence. See Haley, 396 S.W.3d at 769.
Appellant asserts that he “may have been unreasonable in not perceiving the
risk which his conduct created” because he was holding a knife while the decedent
was kicking down at him and may not have perceived that this action could result
in decedent getting stabbed in the leg and dying as a result. In support, appellant
cites Hunter v. State, 647 S.W.2d 657 (Tex. Crim. App. 1983), and Bodeker v.
State, 629 S.W.2d 65 (Tex. App.—Dallas, 1981, pet. ref’d). Both cases are
distinguishable, however, and Bodeker is of questionable precedential value.
In Hunter, the Court of Criminal Appeals held that criminal negligence was
raised when the evidence showed that the gun the defendant was holding had
discharged as he swung it toward the back seat of a car to “hush” the decedent. 647
S.W. 2d at 657-59. The defendant in Hunter testified that he did not intend to fire
the gun, had not cocked the gun, had never fired the gun before, did not know if it
would even fire, and did not know why the gun discharged. Id. at 659. The Court
concluded that this testimony was sufficient to raise “an issue as to whether
appellant was negligent in not perceiving the risk which his conduct created.” Id.Here, appellant did not testify and does not point to any evidence suggesting he did
not know that brandishing a knife toward someone could result in the person being
stabbed and dying. Moreover, the knife appellant was wielding in this instance was
not capable of accidentally discharging as the defendant claimed the gun did in
Hunter. See Lewis v. State, 866 S.W.2d 272, 276 (Tex. App.—Houston [1st Dist.]
1993, pet. ref’d) (distinguishing Hunter in a case involving a knife).
In Bodeker, the court of appeals concluded that criminal negligence was
raised when testimony indicated the deceased was pushed through a doorway by a
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group of people during a struggle and into a paring knife held by the defendant.
629 S.W.2d at 66. The Court of Criminal Appeals criticized the Bodeker opinion in
Mendieta for failing “to detail the evidence which showed that the defendant ought
to have, but did not, perceive a substantial and unjustifiable risk in his conduct.”
706 S.W.2d at 652-53. In Mendieta itself, the Court of Criminal Appeals
concluded that the defendant’s testimony that he pulled out a knife and began
swinging it to keep the decedent away from him actually showed an awareness of
the risk he was creating, even though the defendant also said he did not mean to
stab the decedent and the stabbing occurred when the decedent came at the
defendant. Id. at 653; see also Bergeron v. State, 981 S.W.2d 748, 751-53 (Tex.
Houston [1st Dist.] 1998, pet. ref’d) (holding evidence defendant merely tried to
ward off complainant when he drew knife and stabbed complainant did not
indicate appellant failed to perceive risk complainant might be seriously injured or
killed as a result of defendant’s use of the knife); Wong v. State, 745 S.W.2d 563,
565 (Tex. App.—Waco 1988, no pet.) (holding defendant’s testimony that he
grabbed a knife only to deter others from advancing did not show he was unaware
of the risk created by his conduct).
Conclusion. This case is more similar to Mendieta, Bergeron, and Wong
than it is to Hunter and Bodeker. Although appellant did not testify, his statements
in the video recording that he wielded the knife to prevent decedent from kicking
him down the stairs did not suggest that appellant was unaware of the risk created
by his actions. Appellant does not cite any other evidence as suggesting he was
unaware of the risk he was causing. Accordingly, appellant was not entitled to a
charge instruction on the lesser-included offense of criminally negligent homicide.
See Meru, 414 S.W.3d at 161. We overrule appellant’s second issue.
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We affirm the trial court’s judgment.
/s/ Frances Bourliot
Justice
Panel consists of Justices Wise, Bourliot, and Spain.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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