Litrey Demond Turner v. State ( 2010 )

Opinion issued July 30, 2010.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-08-00657-CR

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Litrey Demond Turner, Appellant

V.

The State of Texas, Appellee

On Appeal from the 56th District Court

Galveston County, Texas

Trial Court Case No. 07CR0760

MEMORANDUM OPINION

          A jury convicted appellant Litrey Demond Turner of capital murder, and the trial court assessed punishment at life in prison without parole.  See Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003), § 19.03(a)(2) (Vernon Supp. 2009).  Turner was 15 years old at the time of the charged offense, and he was tried as an adult. On appeal, Turner contends that the evidence is legally insufficient to support his conviction for capital murder and that the trial court erred by refusing to instruct the jury on the lesser-included offenses of aggravated robbery and robbery.

          The trial court erroneously denied Turner’s requested jury instruction on the lesser-included offense of robbery. Robbery was a lesser-included offense of capital murder in this case, and there was some evidence in the record that would permit a rational jury to find that Turner was only guilty of robbery and not of capital murder.  We therefore reverse the conviction and remand for a new trial.[1]

Background

          Turner lived with his aunt, Donna Morris, at an apartment complex in Dickinson, Texas.  He met another teenager, Andrew Brown, who also lived at the apartment complex. On a Monday not long after the start of the school year, Kathy Porter, a neighbor in the apartment complex, saw four or five African-American teenage boys standing outside.  She testified that a boy with dreadlocks was passing around a small black handgun, handing it to another boy who was several inches taller. That afternoon, Turner and Brown went to a nearby convenience store called “Storekeepers.”  Storekeepers was owned by two sisters, Bich Lam and complainant Phoung Thi Lam, who worked the night shift before closing the store around 11:00 p.m.

The store’s surveillance video from earlier in the day showed Turner purchasing a drink or snack while Brown, who had dreadlocks, danced in the aisle near the counter.  The black-and-white video showed Turner was several inches taller than Brown.

According to Turner’s statement to the police, he and Brown watched a movie at his house that night and later walked back to Storekeepers shortly before 11:00 p.m.  Turner told the police that he did not know Brown was armed at that time or that he intended to rob the convenience store.  Turner did, however, state that prior to that day he had seen Brown with a gun, which Brown hid behind some steps at the apartment complex.

Michael Davis testified that he saw Brown and a friend standing by the convenience store’s dumpster at approximately 9:30 p.m. that night. Brittany Moore and Trikeith Sanders testified that they saw Turner and Brown outside the convenience store at approximately 10:00 p.m. and that Brown asked if a car parked in front of the store was an unmarked police car.  They both said that when Brown asked the question, Turner was standing with him.

The store’s surveillance video shows Phuong Thi Lam walking in front of the counter to lock up the store.  As she put the key in the lock, the door opened from the outside, and she struggled to close the door but was pulled outside.  She returned inside and again struggled to close and lock the door. The surveillance video shows Lam falling to the floor.

Around 10:45 or 11:00 p.m., Moore and Sanders were walking past the convenience store when Moore noticed the light was on and Lam’s car was still outside. They both saw Lam lying by the door in a pool of blood.  Davis walked by and then called 9-1-1.  Sanders and Davis both testified that they heard Brown’s voice calling Davis’s name from the vicinity of the dumpsters.

Police responded within minutes, and Lam, who had been shot and was bleeding but still had a faint pulse, was transported to an emergency room where she later died. The medical examiner testified at trial that Lam died as a result of a gunshot wound, which caused her to bleed to death.  He said that if she had received prompt medical attention, she may have survived the shooting.

Sgt. J. Jaekel, a patrol supervisor with the City of Dickinson Police Department, responded to the 9-1-1 call.  Shortly after the incident, the police received an anonymous tip that they should look for “a black male with dreadlocks named Young Money who was from Louisiana.”  Brown’s nickname was “Young Money,” and he was from Louisiana.  After speaking with Davis, Moore, and Sanders, Sgt. Jaekel decided that investigators should go to the nearby apartment complex to search for the suspect.  While Sgt. Jaekel was coordinating efforts, Deputy J. Gillane of the Galveston County Sherriff’s Department went to the apartment complex, where he saw two young men. Deputy Gillane watched them go into an apartment.  Almost immediately, he saw one of them leave and go into a different apartment.  When Sgt. Jaekel arrived, Deputy Gillane showed him which apartments the young men had entered, and Sgt. Jaekel arrested Brown in the first apartment and Turner in the second. 

Sheryl Mitchell, a neighbor and friend of Turner and Brown, lived in the first apartment they entered.  She testified that the boys were at her apartment earlier in the day and that Brown showed his gun to a female acquaintance and talked to her about robbing someone.  Turner was present at that time.  Mitchell testified that Turner and Brown returned to her apartment that night. Turner left after less than five minutes, but Brown stayed until the police came to the door and arrested him.

Detective J. Lopez obtained consent to search Mitchell’s apartment, Brown’s parents’ apartment, and Morris’s apartment.  These searches took place the night of the shooting or early in the morning of the next day.  Sgt. T. Keele, with the City of Dickinson Police Department, searched Morris’s apartment. In the back bedroom where Turner usually slept, Sgt. Keele found a black purse that had a copy of Lam’s social security card inside.  He did not find a gun.  Detective Lopez and Sgt. Keele also found some dark colored clothing that matched the description of what Turner wore before he entered Morris’s apartment that night.  J. Rojas, a forensic chemist with the Texas Department of Public Safety Crime Lab, testified that he tested the black pants that were found in Turner’s room.  Rojas found one particle on the pants that was consistent with or indicative of gunshot residue, but he conceded on cross-examination that environmental sources can produce similar particles.

City of Dickinson Police Detective W. Price searched Mitchell’s apartment and found no evidence pertaining to the charged offense.  He also searched Brown’s parents’ apartment, where his colleague Sgt. Gottlob found a bullet in one of the closets in Brown’s bedroom.  Sgt. Gottlob testified that he found a .38 caliber cartridge in the closet.  Detective Price and Sgt. Gottlob both testified that they found two framed photographs hanging on the wall: one showing Brown holding a handgun and marijuana and the other showing Brown holding a shotgun, marijuana, and what appeared to be cocaine.  They did not find a gun.  C. Story, a forensic scientist with the Texas Department of Public Safety Crime Lab, analyzed the bullet recovered from Lam and compared it to the cartridge found in Brown’s closet and the photographs taken from his apartment. Story testified that the bullet that he tested could have been fired from the handgun shown in the photograph with Brown.

The day after the police searched her apartment, Morris found a black coin purse in a basket of hair accessories in Turner’s bedroom.  At first she thought the coin purse belonged to her daughters, but she discovered Lam’s driver’s license inside and turned it over to Detective J. Cromie with the City of Dickinson Police Department.  She also found a ski mask or knit cap, a bandana, and a ball cap in Turner’s bedroom, none of which, she said, belonged to Turner. Forensic DNA analysis showed Brown’s DNA on the knit cap.  Testing also found Turner’s DNA on the black coin purse.  Turner’s defense counsel suggested through cross-examination that his DNA was present on the coin purse because it was found near his hairbrush. But J. Watson, who performed the DNA analysis for the Texas Department of Public Safety Crime Lab, testified that it was unlikely that Turner’s DNA got on the coin purse by a random transfer.

Morris also testified that the day after Turner was arrested, Brown’s parents came to her apartment.  She said they searched around and went into her daughters’ bedroom, ostensibly looking for the gun used in the robbery.  After Brown’s parents left, Turner’s sister, Saqouia Turner, who was staying with Morris, found a gun and a cell phone in Morris’s daughter’s bedroom.

Saqouia testified that she found a black gun and a cell phone in her cousins’ bedroom.  Believing that Brown’s parents were trying to frame Turner, she hid the gun and the cell phone in a cardboard box, put the box in a black garbage bag, and threw the bag behind the dumpsters at the apartment complex.  She later helped police search for the gun, reenacting what she did, but the gun was never found.

After Turner’s arrest, Justice of the Peace Kathleen McCumber advised him of his rights, and Detective Lopez later questioned him about the incident. Turner repeatedly denied any involvement in the robbery and murder, and he initially denied any knowledge about it. He repeatedly said, “I didn’t do it.” As Detective Lopez continued the interview, Turner told him that he spent the evening watching a movie with Brown and that he went with Brown to the convenience store that night.  Turner told Detective Lopez: that he was going to the store with Brown to get chips, cookies, and soda; that he did not know that Brown had a gun with him when they went to the store; that the first time he saw Brown’s gun that day was when Brown showed it to Lam during the robbery; and that he did not know Brown was going to rob or shoot the clerk.  Turner said that he stayed near the dumpster because he wanted to return home.  He said that as Lam was locking up the store, he saw Brown point a gun at her, demand her purse, and then shoot her.  Turner said he ran home, took a bath, and changed his clothes.  He also said that he normally kept his ground-floor bedroom window open and that Brown climbed in the window and stashed Lam’s purse in his room.

At trial, Turner presented no evidence, instead resting on the presumption of his innocence.  The trial court denied his request for jury instructions on the lesser-included offenses of robbery and aggravated robbery, but the court included an instruction on the lesser-included offense of felony murder.  The jury found him guilty of capital murder.

Legal Sufficiency OF THE EVIDENCE

          In his fourth issue, Turner contends that the evidence was legally insufficient to support his conviction because the State failed to prove that he was a primary actor to the offense.[2]  Turner’s entire argument on this point is based upon the premise that the jury charge did not authorize the jury to convict him under the law of parties. Turner thus argues that the jury could have convicted him only on sufficient proof that he was the primary actor.

          Contrary to his arguments on appeal, the jury charge also authorized the jury to convict Turner of capital murder or felony murder on a conspiracy theory, as contemplated by Section 7.02(b) of the Penal Code.  As discussed below, the evidence was sufficient to convict Turner of capital murder under this theory of responsibility.

A.   Standard of Review

We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005).  The standard is the same for both direct and circumstantial evidence cases.  King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).  The trier of fact is the sole judge of the weight and credibility of the evidence.  Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000), overruled on other groundsby Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009).  We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact.  See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).  We must resolve any inconsistencies in the evidence in favor of the verdict.  Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). 

We measure the sufficiency of the evidence against the elements of the offense as defined by a hypothetically correct jury charge.  Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).  A hypothetically correct jury charge “sets out the law, is authorized by the [charging instrument], does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.”  Id.  This standard ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State’s proof of the crime.  Id. 

Under the law of parties, if Turner conspired with Brown to rob the store,[3] Turner could be held criminally liable for capital murder committed by Brown,[4] even if Turner had no intent to commit capital murder, if Brown committed the murder in an attempt to carry out the conspiracy to commit robbery and if Brown’s actions should have been anticipated by Turner as a result of the carrying out of the conspiracy.[5]  Thus the jury did not have to find that Turner personally caused Lam’s death to convict him of capital murder.

B.   Analysis

          In his statement to the police, Turner said that while he stood by a nearby dumpster, Brown shot Lam.  Turner also said that Brown later stored the purse and the other items stolen from Lam in Turner’s room.  Evidence that Turner and Brown conspired to commit an armed robbery at the convenience store includes: (1) the surveillance video that showed they were in the store earlier in the day; (2) testimony from Kathy Porter that she saw an African-American teenage boy with dreadlocks passing around a small black handgun, handing it to another boy who was several inches taller; (3) testimony from Sheryl Mitchell that, in Turner’s presence, Brown showed his gun to a female acquaintance and talked to her about robbing someone; and (4) testimony from Brittany Moore and Trikeith Sanders that they saw Turner and Brown outside the convenience store at approximately 10:00 p.m. and that Brown asked if a car parked in front of the store was an unmarked police car.  Furthermore, Turner told Detective Lopez that he knew that Brown owned a gun because Turner had seen the gun before the day of the offense.  From this evidence a jury could have reasonably inferred that Turner and Brown were co-conspirators, that they planned to rob the Storekeepers convenience store at closing time, and that Turner should have anticipated that Brown would shoot Lam with his gun.

          Turner argues that because the jury charge erroneously failed to apply the law of parties, the evidence was legally insufficient to support the jury’s verdict.  In so doing, Turner relies on authority that has been overruled. Appellate courts review the sufficiency of the evidence based on a hypothetically correct jury charge, not the charge actually given.  See Malik, 953 S.W.2d at 240.  To the extent Turner complains about the phrasing of the law of parties instructions given to the jury, that is not pertinent to our legal sufficiency review.  See id.

We conclude that a rational jury could have found beyond a reasonable doubt that Turner was guilty of capital murder as party to the offense.  See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Vodochodsky, 158 S.W.3d at 509.  We hold that the evidence was legally sufficient to support the conviction, and we overrule Turner’s fourth issue.

LeSSER-INCLUDED OFFENSES

          In his second issue, Turner contends that the trial court erred by not charging the jury on the lesser-included offenses of robbery and aggravated robbery.  Turner requested that the jury be instructed on these offenses, and his request was sufficient to preserve error.  Carmen v. State, 276 S.W.3d 538, 541 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d).  Turner argues on appeal that the requested lesser-included offenses had to be included in the instructions to the jury because the jury could have concluded that there was not sufficient evidence to establish that he should have reasonably anticipated a murder committed in furtherance of a conspiracy to commit robbery or aggravated robbery.

A.   Law of Lesser-Included Offenses

To determine whether a defendant is entitled to an instruction on a lesser-included offense, the court conducts a two-pronged test.  See Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007).  As recently reiterated by the Court of Criminal Appeals in Ex parte Watson,[6] the first part of the test requires the court to use the “cognate pleadings” approach to determine whether an offense is a lesser-included offense of another offense.  The first prong is satisfied if the indictment for the greater-inclusive offense either:

1) alleges all of the elements of the lesser-included offense, or 2) alleges elements plus facts (including descriptive averments, such as non-statutory manner and means, that are alleged for purposes of providing notice) from which all of the elements of the lesser-included offense may be deduced. Both statutory elements and any descriptive averments alleged in the indictment for the greater-inclusive offense should be compared to the statutory elements of the lesser offense. If a descriptive averment in the indictment for the greater offense is identical to an element of the lesser offense, or if an element of the lesser offense may be deduced from a descriptive averment in the indictment for the greater-inclusive offense, this should be factored into the lesser-included-offense analysis in asking whether all of the elements of the lesser offense are contained within the allegations of the greater offense.

Watson, 306 S.W.3d 259, 273 (footnote omitted).  This inquiry is a question of law.  Hall, 225 S.W.3d at 535.

The second step asks whether there is evidence that supports giving the lesser-included-offense instruction to the jury.  Id. at 536.  A defendant is entitled to a requested instruction on a lesser-included offense when the proof for the charged offense subsumes the proof required to establish the lesser-included offense and some evidence in the record would permit a rational jury to find that if the defendant is guilty, he is guilty only of the lesser-included offense.  Id.

B.   Jury Charge Analysis

The State does not dispute that, in this case, robbery and aggravated robbery are lesser-included offenses of capital murder.  See Tex. Penal Code Ann. § 19.03 (Vernon Supp. 2009), §§ 29.02, 29.03(a)(1), (2) (Vernon 2003).  The first prong of the Hall analysis is satisfied. 

The second prong is also met.  “In applying this prong of the test, the appellate court must examine the entire record instead of plucking certain evidence from the record and examining it in a vacuum.”  Enriquez v. State, 21 S.W.3d 277, 278 (Tex. Crim. App. 2000).  Anything more than a scintilla of evidence may be sufficient to entitle a defendant to a jury instruction on a lesser-included offense.  Hall, 225 S.W.3d at 536 (citing Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994)).  “It is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense.  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.”  Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997) (citing Bignall, 887 S.W.2d at 24).  “We are required to ‘view the evidence in the light most favorable to appellant and give him the benefit of reasonable inferences from it, without regard to whether the evidence is credible, controverted, or in conflict with other evidence.’”  Ray v. State, 106 S.W.3d 299, 302 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (quoting Upchurch v. State, 23 S.W.3d 536, 540 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)); accord Banda v. State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1994).  “Regardless of its strength or weakness, if any evidence raises the issue that the defendant was guilty only of the lesser offense, then the charge must be given.” O’Brien, 89 S.W.3d 753, 755 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (citing Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992)).

The evidence relied upon by Turner to support charging the jury on the lesser-included offenses of robbery and aggravated robbery comes from the statement he gave to the police shortly after he was arrested on suspicion of participation in Lam’s murder.  Viewing the evidence in the light most favorable to Turner, the evidence shows that he conceded that he accompanied Brown from the apartment complex to the immediate vicinity of the store and was standing nearby when Brown approached Lam, demanded her purse, shot her with a black .38 handgun, and took her purse.  After seeing Brown shoot Lam, Turner fled the scene. He was followed by Brown and both returned to the apartment complex.

After stating that he and Brown “were walking to the store,” Turner was asked, “Did he say he was going to rob her?”  Brown answered, “No.”  Turner was asked specifically, “Did you know he had a gun on him?”  He responded, “No, I don’t.” 

The State argues that, under the second prong of Hall, Turner was not entitled to jury instructions on robbery or aggravated robbery because there was no evidence that Turner was guilty of only the lesser-included offenses.  See Solomon v. State, 49 S.W.3d 356, 368–69 (Tex. Crim. App. 2001).  The evidence supporting a lesser-included charge must be directly germane to the lesser-included offense.  Id. at 369.[7]  As applied to a request to instruct the jury about robbery or aggravated robbery as lesser-included offenses with respect to capital murder, the foregoing principles dictate that the second prong of Hall is met only if there is evidence in the record showing either (1) there was no murder, (2) the murder was not committed in furtherance of a conspiracy, or (3) the murder should not have been anticipated.  Id.

As noted by the State, there is no dispute that a murder took place.  Turner does not argue that the murder was not committed in furtherance of a conspiracy to rob the convenience store.  Therefore, the only possible theory that could support Turner’s request for the lesser-included charges is that evidence in the record would support a rational jury’s conclusion that there was insufficient evidence to establish that he should have reasonably anticipated that Brown would kill Lam in the course of robbing the store, as would be necessary to find Turner guilty of capital murder as a co-conspirator.  See id.; Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 2003) (providing liability for felony committed by co-conspirator in furtherance of the conspiracy’s unlawful purpose if the felony “should have been anticipated as a result of the carrying out of the conspiracy”).  Like the capital murder instruction, the lesser instruction on felony murder given in this case also required the jury to find that Turner reasonably anticipated that Brown would commit murder in furtherance of the conspiracy.

We must determine whether there is any evidence in the record, credible or not, from which a reasonable jury could have found that Turner failed to anticipate the murder.  In his statement to the police, Turner said that he did not know Brown had a gun at the time of the robbery,[8] and that he first saw it that night when Brown pulled the gun on Lam and demanded her purse.  At oral argument, the Court asked counsel for the State whether a reasonable jury could have convicted Turner of robbery and acquitted him of felony murder and capital murder.  The State conceded, “Conceivably, conceivably.”

We agree.  Without regard to Turner’s credibility, we conclude that his statements that he did not know Brown had a gun and that he did not see the gun until Brown pointed it at Lam constitute some evidence that, if believed by the jury, could have supported a conclusion that although Turner was guilty of conspiracy to rob the store, he nevertheless did not reasonably anticipate that Brown would commit murder in furtherance of the conspiracy.  See Jones v. State, 921 S.W.2d 361, 364 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d) (“A jury, as the trier of fact, is entitled to believe all or part of the conflicting testimony proffered and introduced by either side.  The jury can selectively believe all or part of the evidence admitted at trial.”).  Accordingly, we conclude that the trial court should have instructed the jury on the lesser-included offense of robbery, and we hold that the court erred by not doing so. Because the trial court erred by failing to instruct on robbery, we need not decide whether the trial court also should have instructed on aggravated robbery.

C.   Harm Analysis

“The erroneous refusal to give a requested instruction on a lesser-included offense is charge error subject to an Almanza harm analysis.”  O’Brien, 89 S.W.3d at 756 (citing Saunders, 840 S.W.2d at 392); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on rehearing). We must reverse if the trial court’s error caused the accused “some” or “any” harm.  Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986); Almanza, 686 S.W.2d at 171; O’Brien, 89 S.W.3d at 756.  When the trial court’s failure to submit the requested lesser-included-offense instruction has “left the jury with the sole option either to convict the defendant of the greater offense or to acquit him,” a finding of harm is automatic.  Saunders v. State, 913 S.W.2d 564, 571 (Tex. Crim. App. 1995); accord Robalin v. State, 224 S.W.3d 470, 477 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

In Saunders, the Court of Criminal Appeals held that harm may not be automatic when the trial court instructed the jury on one lesser-included offense that was raised by the evidence but denied the defendant’s request to instruct the jury on a different lesser-included offense.  Saunders, 913 S.W.2d at 571.  In such a circumstance, the submission of the lesser-included offense would provide the jury with a compromise between conviction for the greater offense and acquittal.  Id.  Thus, a jury’s decision to convict the defendant for the greater offense could negate a finding of “some” harm.  Id.

The trial court instructed the jury on capital murder, for which the punishment was statutorily mandated to be imprisonment for life or life without parole, and on felony murder, a first degree felony for which the statutory punishment range is 5 to 99 years’ confinement.  See Tex. Penal Code Ann. § 12.31 (Vernon Supp. 2009) (capital murder); id. § 12.32 (Vernon Supp. 2009) (punishment range for first-degree felony), id. § 19.02(b)(3), (c) (Vernon 2003) (defining felony murder and stating it is first-degree felony).  By contrast, robbery is a felony of the second degree, for which the punishment range is 2 to 20 years’ confinement.  Tex. Penal Code Ann. § 12.33 (Vernon Supp. 2009) (statutory punishment range for second-degree felony); id. § 29.02(b) (Vernon 2003) (robbery).  Turner was sentenced to life imprisonment for capital murder; had he been found guilty of the lesser offense of robbery, he could have been sentenced to confinement for a maximum of 20 years.

The crux of Turner’s argument is that his statement to the police that he did not know that Brown had a gun with him is some evidence that he did not reasonably anticipate the possibility of Lam’s murder.  Here the capital murder elements in the jury charge and the felony-murder elements in the jury charge each included elements that required the jury to find that Turner should have anticipated that the murder of Lam would occur as a result of the carrying out of the conspiracy to rob her.  The jury was not offered the possibility of convicting on any charge that did not include as an element Turner’s reasonable anticipation of a murder committed by Brown.  Thus, although the trial court instructed the jury on one lesser-included offense, on the facts of this case, felony murder was not a compromise in regard to the issue of anticipation.  This case, therefore, is not an exception to the rule of automatic harm.  Contra Saunders, 913 S.W.2d at 571.

Accordingly, we hold that the trial court’s failure to give Turner’s requested instructions on the lesser-included offense of robbery caused Turner some harm, and we sustain his second issue.

Conclusion

          Because the trial court’s erroneous denial of Turner’s requested instruction on the lesser-included offense of robbery caused him some harm, we reverse the judgment in this case and remand the case to the trial court for a new trial.

                                                                   Michael Massengale

                                                                   Justice

Panel consists of Justices Jennings, Alcala, and Massengale.

Do not publish.   Tex. R. App. P. 47.2(b).

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[1]        In light of our disposition of this appeal, it is unnecessary for us to address Turner’s other issues, which include his contentions that the trial court erred by denying the motion to suppress his recorded statement because the magistrate did not ask him if he wished to waive his right to remain silent (issue one) and that the trial court gave an erroneous jury instruction regarding the law of parties (issue three).

[2]           We need not resolve Turner’s first issue, relating to his request to suppress evidence of his statement to the police, in order to analyze the sufficiency of the evidence to support a conviction for capital murder.  “If the sufficiency of the evidence is challenged following a jury trial, appellate courts consider all of the evidence presented whether properly or improperly admitted.”  Green v. State, 893 S.W.2d 536, 540 (Tex. Crim. App. 1995).

[3]          A person commits robbery if, while unlawfully appropriating property with the intent to deprive the owner of the property, he intentionally, knowingly, or recklessly causes bodily injury to another or intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.  See Tex. Penal Code Ann. § 29.02 (Vernon 2003).

[4]           A person commits the offense of capital murder if he intentionally or knowingly causes the death of an individual while in the course of committing or attempting to commit certain delineated felonies, including robbery.  See id. § 19.02(b)(1) (Vernon 2003), § 19.03(a)(2) (Vernon Supp. 2009).

[5]           Id. § 7.02(b) (Vernon 2003); Love v. State, 199 S.W.3d 447, 452 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).

[6]          306 S.W.3d 259 (Tex. Crim. App. 2009) (per curiam op. on reh’g).

[7]           Though not argued by the State, we are aware of authority to the effect that when a defendant denies having committed any crime and there is no other evidence in the record from which a jury could find that the defendant committed only the lesser offense, then the defendant is not entitled to a lesser-included offense instruction.  See, e.g., Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001); Smith v. State, 187 S.W.3d 186, 196 (Tex. App.—Fort Worth 2006, pet. ref’d); Johnson v. State, 84 S.W.3d 726, 730 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).  Read in its entirety, Turner’s statement to the police did not deny knowledge of the offense or deny that he was present.  Rather, he admitted going to the store with Brown, remaining nearby while Brown robbed and killed the clerk, and then rejoining Brown at Turner’s apartment where he took possession of the purse stolen from the clerk.

[8]           Knowledge that a co-conspirator would use a gun during the course of a robbery can show that the defendant should have anticipated that a death could result from the robbery.  See Love, 199 S.W.3d at 453; see also Longoria v. State, 154 S.W.3d 747, 757 n.7 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d) (citing Tippitt v. State, 41 S.W.3d 316, 324–25 (Tex. App.—Fort Worth 2001, no pet.) (listing cases holding that proof of knowledge that gun would be used in robbery supported finding that resulting murder should have been anticipated), overruled on other grounds by Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007)).