Roy, Kelvin Lee ( 2016 )

PD-1455-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 5/27/2016 1:54:16 PM
MAY 31, 2016 Accepted 5/31/2016 8:29:26 AM
ABEL ACOSTA
NO. PD-1455-15 CLERK
********************
IN THE
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
********************
KELVIN LEE ROY, Petitioner
V.
THE STATE OF TEXAS, Appellee
Petition in Cause No. B-140,221-R
From the 163rd District Court of Orange County, Texas
and
Cause No. 09-14-00367-CR
Court of Appeals, Ninth District of Texas
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State’s Brief
********************
John D. Kimbrough
Orange County Attorney
Orange County Courthouse
Orange, Texas 77630
State Bar No. 11425300
Krispen Walker
Assistant County Attorney
Orange County Courthouse
Orange, Texas 77630
State Bar No. 00791870
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Krispen Walker, Attorney for the State of Texas
Orange County Attorney’s Office
801 Division
Orange, Texas 77630
Christine R. Brown-Zeto, Attorney for the Appellant
1107 Green Avenue
Orange, Texas 77630
KELVIN LEE ROY, Appellant
Coffield Unit
2661 FM 2054
Tennessee Colony, Texas 75884
Malachi Daws, Attorney Representing Appellant at Trial
P. O. Box 1806
Vidor, Texas 77670
Dustin Galmor
Attorney for Petitioner on Petition for Discretionary Review
485 Milam
Beaumont, Texas 77701
Trial Judge: Hon. Dennis R. Powell
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TABLE OF CONTENTS
Identity of Parties and Counsel...................................................................................i
Table of Contents......................................................................................................ii
List of Authorities....................................................................................................iii
Statement of the Case…...........................................................................................1
Statement of Facts.................................................................................................... 2
Summary of the State’s Argument...........................................................................6
State’s Reply to Appellant’s Issue Presented............................................................7
Argument and Authorities………………………………………………………….8
Prayer.......................................................................................................................18
Certificate of Compliance – Word Count………………………………………....19
Certificate of Service..............................................................................................19
ii
LIST OF AUTHORITIES
CASES
Bignall v. State, 887 S.W.2d 21, 23 Tex.Crim.App. 1994)………………………...8
Hall v. State, 225 S.W.3d 524 (Tex.Crim.App. 2007, reh’g denied)……………....8
Ross v. State, 861 S.W.2d 870 (Tex.Crim.App. 1993, reh’g granted)………13, 14
Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App. 1993)…………..…16
Roy v. State, No. 09-14-00367-CR (Tex.App. – Beaumont August 26, 2015, pet.
granted)…………………………………………………………………………….6
Schroeder v. State, 123 S.W.3d 398 (Tex.Crim.App. 2003, en banc)……15, 16, 17
Will. v. State, 235 S.W.3d 742, 751 (Tex.Crim.App. 2007)……………10, 11
STATUTES
TEX.PEN.CODE Sec. 6.03(c)….…………………….………………………...10, 11
TEX.PEN.CODE Sec. 8.04…………………………………………………..…….12
TEX.PEN.CODE Sec. 12.32…………………………………………………….…17
TEX.PEN.CODE Sec. 12.33……………………………………………………….17
TEX.PEN.CODE Sec. 19.02(b)(1)……………………………………………..9, 17
TEX.PEN.CODE Sec. 19.02(b)(2)……………………………………...……..1, 6, 9
TEX.PEN.CODE Sec. 19.02(b)(3)………………………………………………….9
TEX.PEN.CODE Sec. 19.04……………………………………………….…10, 17
iii
NO. PD-1455-15
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IN THE
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
********************
TO THE HONORABLE JUDGES OF SAID COURT:
On August 28, 2014, the Appellant, KELVIN LEE ROY, was sentenced to a
term of confinement for seventy-five (75) years in the Texas Department of
Criminal Justice – Institutional Division following a jury trial and sentencing in the
163rd District Court, Orange County, Texas, Dennis Powell, Presiding Judge. It is
from this sentence that Appellant appeals.
STATEMENT OF THE CASE
The Appellant, KELVIN LEE ROY, was charged by indictment with the
murder of Alexandria Bertrand on April 23, 2014. (C.R., 8) The indictment
tracked the language of section 19.02(b)(2) TEX.PEN.CODE. Petitioner requested
that manslaughter be submitted to the jury as a lesser-included offense (R.R. 6, p.
113) The trial court denied the request, and the jury convicted Petitioner of
murder. He was sentenced to serve 75 years imprisonment. (R.R. 7, p. 71) The
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Court then pronounced sentence. (R.R. 7, pp. 72-3) On appeal, Petitioner
challenged the trial court’s denial of his request for a jury instruction on the
offense of manslaughter. The Court of Appeals held that because Petitioner’s
testimony establishes that he was unaware of the result of his conduct, the trial
court properly denied Petitioner’s request for an instruction on the lesser-included
offense of manslaughter. (Court’s opinion page 10).
STATEMENT OF FACTS
The State agrees with the court of appeals statement of facts, quoted below.
Roy was charged with the death of Alexandria Bertrand, which resulted
from a vehicle collision. According to Taralynn Brown, Roy’s former girlfriend,
Roy was driving her vehicle on the night of the offense so that she could purchase
food. During the drive, Roy passed his exit, repeated words to himself, and lit a
dip cigarette.1 Brown testified that Roy was driving in two lanes and almost struck
the side of the freeway and other vehicles, but Roy refused to pull over. Roy told
Brown, “I’m going to kill both of us.”
Christopher Morgan, Joshua Bryan, and Brittany Monroe testified that they
saw Roy drive past them at a high rate of speed. Morgan and Bryan testified that
Roy overcorrected and nearly struck the curb. Bryan and Monroe heard the engine
revving as it sped past them. Bryan testified that “it was like whoever the driver of
1 Roy testified that a “dip cigarette” is a cigarette dipped in P.C.P.
2
the car was hit the gas, because you could see the rear end of the car actually sit
down[.]” Morgan, Bryan, and Monroe testified that they never saw the vehicle’s
brake lights. Morgan believed Roy had “[n]o intent to stop.” Monroe testified that
it did not appear that Roy was attempting to avoid other vehicles.
Brown testified that Roy continued driving “crazy” and that she begged Roy
to stop, but that Roy accelerated and Brown recalled “flying in the air and
crashing.” April Bertrand testified that she and her daughter, Alexandria, were in
their vehicle, stopped at a red light, when Roy struck Bertrand’s vehicle. Kevin
Huebel testified that he was approaching the red light when Roy flew past him and
collided with Bertrand’s vehicle. Bertrand testified that Alexandria was ejected
from the vehicle. Huebel compared the sound of the accident to an explosion or
bomb. Officer Rodney Johnson described the scene as looking like a war zone or a
bomb explosion.
Victoria Andis, who heard the crash and saw Roy’s vehicle fly toward her
and roll to a stop, testified that Brown was screaming and trying to climb out of the
vehicle’s window. Andis assisted Brown, who told Andis that Roy was driving
crazy, was under the influence, and was trying to kill Brown and himself. Andis
smelled alcohol in the vehicle and saw drugs around the vehicle. Monica Hall, a
registered nurse who stopped to help, testified that Brown told her that Roy was
3
“under the influence.” Officer Chase Alexander testified that Brown told him she
thought Roy was under the influence, but she did not mention Roy trying to kill
her.
Hall and Alexander testified that Roy was unconscious in his vehicle.
Johnson testified that he smelled an odor of alcohol around the vehicle and that
Roy was non-responsive. Officer Jesus Loredo testified that Roy was in and out of
consciousness, was lethargic, and had a “wild-eyed” appearance. He testified that
Roy’s symptoms could be indicative of either being intoxicated or having been in
an accident. Loredo also smelled a strong odor of alcohol coming from the vehicle
and he collected baggies of marihuana and cocaine from the area around the
vehicle. Roy denied ownership of the drugs.
Bertrand testified that, at the hospital, Alexandria was pronounced brain
dead. Dr. John Ralston, a forensic pathologist, explained that Alexandria suffered
from a fracture at the base of her skull, hypermobility, blood in her lungs, bleeding
over her brain, a spinal cord injury, and skin lacerations. He testified that
Alexandria died of blunt force trauma.
Sergeant Richard Howard testified that he saw no pre-impact skid marks at
the scene, which indicated an absence of braking before impact. He testified that
he has seen intoxicated people involved in an accident without ever having applied
4
the brakes. Alexander testified that Roy’s erratic driving was consistent with a
person driving while intoxicated, but was also consistent with a person intending to
cause an accident. According to Howard, Roy’s vehicle became airborne before
striking the back right side of Bertrand’s vehicle. Given that the battery was
thrown from Roy’s vehicle and the vehicle landed quite a distance from the point
of impact, Howard believed the vehicle was traveling at a high rate of speed.
Roy testified that on the night of the offense, he and Brown were driving to
pay someone for repairing Brown’s car. He testified that Brown brought two cups
of alcohol and that they drank and used marihuana in the vehicle. Brown testified
that she had been drinking that day, but was not intoxicated and did not use
marihuana in the vehicle. She believed that Roy was intoxicated when the offense
occurred. Roy’s blood tested positive for benzodiazepine, phencyclidine (P.C.P),
and T.H.C. and his blood alcohol level was well below the legal limit.
According to Roy, the repairman was not at home, so he lit a dip cigarette
and headed home. When he began to feel dizzy, he told Brown to take the steering
wheel and attempted to pull over, but he passed out. He attributed this to the
combination of drugs, marihuana, dip cigarette, and alcohol. Roy could not recall
speeding down the road or the accident itself. He testified that he did not intend to
speed and was unaware of what was happening when the accident occurred.
5
Roy admitted to having a history of drug use and drug-related criminal
offenses, including a conviction for assault family violence against Brown. He
testified that he smoked marihuana daily, used P.C.P. maybe twice per month, and
consumed alcohol once or twice per month. He admitted knowing the risks of
drinking and driving, as well as smoking marihuana and driving, but he still chose
to drive. Roy denied getting into an argument with Brown, becoming enraged, or
threatening Brown with injury or death. He testified that he acted recklessly, but
had no intent to injury anyone, including Brown, and that he accepted
responsibility for Alexandria’s death.
Roy v. State, No. 09-14-00367-CR (Tex.App. – Beaumont August 26, 2015, pet.
granted).
SUMMARY OF THE STATE’S ARGUMENT
Summary of the State’s reply to Petitioner’s sole issue:
Murder, charged under section 19.02(b)(2) of the Texas Penal Code, is
established by proof that the defendant intended to cause serious bodily injury and
committed an act clearly dangerous to human life that caused an individual’s death,
while manslaughter is established by proof that the defendant recklessly caused an
individual’s death. Although, manslaughter is a lesser-included offense of murder,
the trial court properly refused to include in the jury charge an instruction on the
6
lesser included offense of manslaughter. No evidence was presented during trial to
indicate that Petitioner acted recklessly with the respect to the charged conduct of
intentionally driving his vehicle into the vehicle occupied by Alexandria Bertrand
and causing her death. Petitioner only admits that his conduct of using drugs and
driving was reckless and denies the charged conduct. In addition, evidence that a
murder defendant was unable to remember causing the death of the victim does not
entitle that defendant to a charge on the lesser-included offense of manslaughter.
Finally, there is no evidence in the record that if Petitioner was guilty, he was
guilty only of manslaughter.
Petitioner was properly convicted of murder as charged in the indictment
based on the testimony and evidence presented at trial. The court of appeals did
not err in holding that the trial court properly denied Petitioner’s request for an
instruction on the lesser-included offense of manslaughter.
STATE’S REPLY TO PETITIONER’S ISSUE PRESENTED
State’s Reply to Petitioner’s Issue: Because Petitioner’s testimony established
that he was unaware of the result of his conduct, and because there is no evidence
to show that if Petitioner was guilty, he was guilty only of manslaughter, the court
of appeals did not err holding that Petitioner was not entitled to a charge on the
lesser-included offense of manslaughter.
7
ARGUMENT AND AUTHORITIES
Determining whether a defendant is entitled to the submission of a lesser-
included offense requires a two part analysis. The first part of the analysis,
determining whether an offense is a lesser included offense of the alleged offense,
is a question of law and does not depend on the evidence produced at trial. The
second part of the analysis requires a determination of whether there is evidence
that supports giving the instruction to the jury. “‘A defendant is entitled to an
instruction on a lesser-included offense where the proof for the offense charged
includes the proof necessary to establish the lesser-included offense and there is
some evidence in the record that would permit a jury rationally to find that if the
defendant is guilty, he is guilty only of the lesser-included offense.’” Hall v. State,
225 S.W.3d 524 (Tex.Crim.App. 2007, reh’g denied) (citing Bignall v. State, 887
S.W.2d 21, 23 Tex.Crim.App. 1994). Although anything more than a scintilla of
evidence may be sufficient to entitle a defendant to a lesser charge, the evidence
must establish the lesser-included offense as a “‘valid, rational alternative to the
charged offense.’” Id.
In the instant case, Petitioner requested a jury instruction on the lesser-
included offense of manslaughter. (R.R. 6, p. 113)
8
In order to receive a jury instruction on the lesser-included offense of
manslaughter, Petitioner must show, as a first step, that manslaughter is, in fact, a
lesser-included offense of murder as charged. The first step of the test is satisfied.
Manslaughter is a lesser-included offense of murder as charged. Because the first
step has been satisfied, the Court must look to the evidence adduced at trial to
determine whether the second step of the analysis provides for the inclusion of a
lesser-included offense instruction.
A person can commit the offense of murder in three different ways. A
person commits the offense of murder if he: (1) intentionally or knowingly causes
the death of an individual; (2) intends to cause serious bodily injury and commits
an act clearly dangerous to human life; or (3) commits or attempts to commit a
felony, other than manslaughter, and in the course of and in furtherance of the
commission or attempt, or in immediate flight from the commission or attempt, he
commits or attempts to commit an act clearly dangerous to human life that causes
the death of an individual. (TEX.PEN.CODE Section 19.02(b)(1),(2), and (3)).
In the case at bar, Petitioner was charged under TEX.PEN.CODE Section
19.02(b)(2), specifically that Petitioner “did then and there intend to cause serious
bodily injury to an individual, Taralynn Brown, and did then and there
intentionally commit an act which was clearly dangerous to human life, to wit:
9
driving a vehicle in which the said Taralynn Brown was a passenger into another
vehicle causing the vehicles to collide which said act caused the death of
Alexandria Bertrand.” (C.R., p. 8).
A person commits the offense of manslaughter, if the person recklessly
causes the death of an individual. (TEX.PEN.CODE Section 19.04). A person acts
recklessly, or is reckless, with respect to circumstances surrounding his conduct or
the result of his conduct when he is aware of but consciously disregards a
substantial and unjustifiable risk that the circumstances exist or the result will
occur. The risk must be of such a nature and degree that its disregard constitutes 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.PEN.CODE Section 6.03(c)).
“[A]t the heart of reckless conduct is conscious disregard of the risk created
by the actor‘s conduct. As has often been noted, ‘[m]ere lack of foresight,
stupidity, irresponsibility, thoughtlessness, ordinary carelessness, however serious
the consequences may happen to be, ‘do not suffice to constitute either culpable
negligence or criminal recklessness. Recklessness requires the defendant to
actually foresee the risk involved and to consciously decide to ignore it.” Williams
v. State, 235 S.W.3d 742, 751 (Tex.Crim.App. 2007).
10
“In sum, in addressing the culpable mental state of recklessness under
Section 6.03(c), the factfinder (and a reviewing court) must examine the
defendant’s conduct to determine whether
(1) the alleged act or omission, viewed objectively at the time of its
commission, created a ‘substantial and unjustifiable’ risk of the type of harm that
occurred;
(2) that risk was of such a magnitude that disregard of it constituted a gross
deviation from the standard of care that a reasonable person would have exercised
in the same situation (i.e., it involved an ‘extreme degree of risk, considering the
probability and magnitude of the potential harm to others’),
(3) the defendant was consciously aware of that ‘substantial and
unjustifiable risk’ at the time of the conduct; and
(4) the defendant consciously disregarded that risk.
Williams at 755.
In light of this four part test, it is clear, that viewed objectively at the time of
the commission of the offense, Petitioner’s actions created a substantial and
unjustifiable risk of the type of harm that occurred and that the risk was of such a
magnitude that disregard of it constituted a gross deviation from the standard of
care that a reasonable person would have exercised in the same situation.
Petitioner, however, according to his own testimony, fails to meet the requirement
that he was consciously aware of that substantial and unjustifiable risk at the time
of the conduct and that he consciously disregarded that risk.
11
Petitioner argues that he was intoxicated and the crash occurred as a result of
his intoxication. Voluntary intoxication does not constitute a defense to the
commission of crime. (TEX.PEN.CODE Section 8.04). The jury was properly
instructed as to this law. (C.R., p. 122)
In this case, because Petitioner testified that he believed that he lost
consciousness, that he had no recollection of speeding down Main Street, of the
crash, of being taken by ambulance to the hospital, or of being treated at the
hospital, the evidence fails to establish that Petitioner acted with the required
culpable mental state of recklessness to include the lesser-included offense of
manslaughter as a valid, rational alternative to murder. (R.R. 6, p. 57)
Accordingly, the trial court properly denied Petitioner’s request for an instruction
on the lesser-included offense of manslaughter and the court of appeals did not err
in affirming Petitioner’s conviction for murder.
The evidence is clear that Petitioner was not entitled to an instruction on the
lesser-included offense of manslaughter in this case because no evidence exists in
the record that would permit a jury rationally to find that if Petitioner was guilty,
he was guilty only of the lesser-included offense of manslaughter. Petitioner
admitted that he was, in fact, driving the vehicle that ultimately collided into the
vehicle occupied by Alexandria Bertrand and caused her death. He admitted that
12
he had been using P.C.P. while driving. Petitioner admitted that he knew the risks
of using drugs and driving but still decided to do the drugs and drive. Petitioner
denied, however, driving his vehicle into the minivan occupied by Alexandria
Bertrand, alleging that he was “passed out at the time.” (R.R. 6, p. 71)
Petitioner, however, was not charged with the offense of intoxication
manslaughter, he was charged with intentionally driving his vehicle into another
vehicle and thereby killing Alexandria Bertrand. He offered no testimony that he
was aware of the risk of intentionally driving his vehicle into another vehicle and
that he then consciously disregarded that risk. Instead, he denied the offense with
which he was charged, intentionally driving his vehicle into another vehicle.
Although Petitioner stated, upon questioning by his counsel, that he considered his
actions of using drugs and driving that night to be reckless, which any reasonable
person would agree, he never testified with respect to any belief that he his conduct
of driving into another vehicle was reckless. Petitioner’s testimony, therefore,
does not rise to the level required to permit a jury rationally to find that Petitioner
was guilty only of the lesser-included offense of manslaughter.
Upon rehearing, this Court in Ross v. State, 861 S.W.2d 870 (Tex.Crim.App.
1993, reh’g granted), which had originally held that the Appellant, who was
charged with and found guilty of capital murder, was entitled to a lesser-included
13
instruction of manslaughter, determined that it was possible that the “appellant’s
actions constituted an act clearly dangerous to human life, which resulted in the
victim’s death indicating appellant may have only been guilty of felony-murder, as
distinguished from involuntary manslaughter.” Ross at 877.
In Ross, the appellant admitted to committing a robbery, during which he
held a gun to the victim. In his confession, which was introduced by the State, the
appellant stated “‘[w]hen I shoved the man the gun went off and struck the man in
the head”’ which he argued made the evidence insufficient to find him guilty of
intentionally causing the death of the victim. Id. at 872, 873. This Court found,
however, that “a rational trier of fact could have found beyond a reasonable doubt
that appellant intentionally caused the death of the deceased. While the isolated
statement by appellant in his confession may lend support to his argument that the
shooting was accidental, that was not the only evidence the jury reviewed.” Id. at
873.
In the case at bar, in addition to Petitioner’s isolated statement that he
considered actions not charged in the indictment to be reckless, the jury reviewed
ample evidence of the charged conduct. The jury heard testimony of Petitioner’s
intent to cause serious bodily injury and his intent to commit an act clearly
dangerous to human life including Brown’s testimony that Petitioner was driving
14
in two lanes and almost struck the side of the freeway and other vehicles and that
he told Brown, “I’m going to kill both of us.” The jury also considered the
testimony of Christopher Morgan, Joshua Bryan, and Brittany Monroe who
testified that they saw Petitioner drive past them at a high rate of speed; that
Petitioner overcorrected and nearly struck the curb; that they heard the engine
revving as it sped past them; that “it was like whoever the driver of the car was hit
the gas, because you could see the rear end of the car actually sit down[.]”; that
that they never saw the vehicle’s brake lights; and that Morgan believed Petitioner
had “[n]o intent to stop.” The jury also considered the testimony of Victoria
Andis, who testified that Brown told her that Petitioner was driving crazy, was
under the influence, and was trying to kill Brown and himself. Therefore, no
evidence exists which would enable a jury to rationally convict Petitioner of the
lesser-included offense of manslaughter only.
Petitioner further argues that the court of appeals in this case has decided an
important question of State law which should be settled by this Court of Criminal
Appeals. This Court, however, has already addressed this very issue.
In Schroeder v. State, 123 S.W.3d 398 (Tex.Crim.App. 2003, en banc), the
defendant was charged with the murder of his wife by shooting her with a firearm.
The defendant testified that during an argument, he and his wife began to struggle
15
over a gun, that they hit the floor, and then he “blacked out” and didn’t remember
shooting his wife. Schroeder at 399. Although the trial court charged the jury on
the defensive issues of self-defense and accident, it denied the defendant’s request
for an instruction on the lesser-included offense of manslaughter. Id. at 400. On
appeal, the court of appeals relied on the two-prong test set forth in Rousseau v.
State, 855 S.W.2d 666, 672-73 (Tex.Crim.App. 1993) which provides that a charge
on a lesser-included offense is required where (1) the lesser-included offense is
included within the proof necessary to establish the charged offense, and (2) there
is some evidence in the record that would permit a jury to rationally find that, if the
defendant is guilty, he is guilty only of the lesser included offense. In Schroeder,
both the State and the Appellant agreed that the first prong had been met, so the
court of appeals was charged only with determining whether the second prong had
been met. The Court of Criminal Appeals held that the court of appeals, although
it correctly identified the issue – whether the record shows some evidence that
would have allowed a jury to rationally find that the appellant, if guilty of any
offense, was guilty only of manslaughter – it was incorrect to hold that there was
evidence that the appellant had acted recklessly with respect to causing the
victim’s death and, therefore, was entitled to a manslaughter charge. Schroeder at
400.
16
In Schroeder, as in the case at bar, the appellant testified that “although he
remembered the events leading up to the shooting, he suddenly ‘blacked out’ and
had no recollection of actually shooting the victim. Therefore, by his own
admission, he was not aware of having caused the victim’s death at the time of the
shooting.” Schroeder at 401. Almost identical to the facts in Schroeder, Petitioner
testified that he believed that he lost consciousness, that he had no recollection of
speeding down Main Street, of the crash, of being taken by ambulance to the
hospital, or of being treated at the hospital. (R.R. 6, p. 57) Appellant denied
driving his vehicle into the minivan occupied by Alexandria Bertrand, alleging that
he “was passed out at the time.” (R.R. 6, p. 71) Therefore, there is no evidence
that would permit a jury to rationally find that at the time of the crash, Petitioner
was aware of but consciously disregarded a substantial and unjustifiable risk that
the victim would die as a result of his conduct. A person cannot possibly
“consciously disregard” a risk of which he is unaware.
Petitioner further argues that he was substantially harmed by the trial court’s
decision not to instruct the jury on the lesser-included offense of manslaughter.
The range of punishment for murder is confinement for 5 to 99 years or life.
TEX.PEN.CODE §§ 19.02, 12.32. The range of punishment for manslaughter is
confinement for 2 to 20 years. TEX.PEN.CODE §§ 19.04, 12.33.
17
The sentenced assessed by the jury, 75 years confinement for murder,
evidences the jury’s strong belief that Petitioner acted with intent to cause serious
bodily injury to Brown and intentionally committed an act clearly dangerous to
human life (murder) and did not act recklessly (manslaughter). The record is
absolutely void of evidence that Petitioner was substantially harmed by the trial
court’s decision not to include a lesser-included charge of manslaughter, even if he
was entitled to it, because the jury would almost certainly have rejected that option
as evidenced by their punishment verdict.
PRAYER
The State prays that this Court overrule Petitioner’s issue presented for
review and affirm the judgment of the Ninth Court of Appeals.
Respectfully submitted,
/s/Krispen Walker__
Krispen Walker
Assistant County Attorney
Orange County Courthouse
Orange, Texas 77630
(409) 883-6764
State Bar No. 00791870
18
Certificate of Compliance Word Count
I hereby certify pursuant to T.R.A.P 9.4 (i)(3) that the total word count for this
brief is 4418 words as determined by Microsoft Word.
/s/Krispen Walker
KRISPEN WALKER
ASSISTANTCOUNTY ATTORNEY
CERTIFICATE OF SERVICE
This is to hereby certify that a true and correct copy of the above and
foregoing instrument has been forwarded to the State Prosecuting Attorney, P. O.
Box 12405, Austin, Texas, and to Appellant’s counsel of record, Dustin Galmor,
485 Milam, Beaumont, Texas 77701, on this the 27th day of May, 2016.
/s/Krispen Walker___
KRISPEN WALKER
19