Lamonn Eugene Blunt v. State ( 2009 )

Affirmed and Memorandum Opinion filed December 3, 2009

In The

Fourteenth Court of Appeals

NO. 14-08-00820-CR

Lamonn Eugene Blunt, Appellant

v.

The State of Texas, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1132233

M E M O R A N D U M    O P I N I O N

Appellant, Lamonn Eugene Blunt, was convicted of capital murder and sentenced to life in prison.  On appeal, he contends that the trial court erred in failing to charge the jury on the lesser-included offense of kidnapping.  Finding no error, we affirm.

Background[1]

On August 31, 2007, appellant and his brother, Dewayne Treadwell, drove from Louisiana to Houston to purchase a large amount of illegal narcotics, approximately 5,000 ecstasy pills.  Treadwell and an acquaintance, Joshua Donahue, traveled in Treadwell’s truck; appellant followed in a separate vehicle.  On the way to Houston, Donahue called his wife, Angela Bolton, and asked her to find a dealer who could supply a large amount of ecstasy pills to appellant and his brother.  Donahue’s wife complied and contacted Aaron Daniels, the complainant, who located a dealer.  The complainant set up a drug transaction between the dealer and appellant and his brother and instructed them to meet the dealer in a Houston parking lot. Appellant, Treadwell, Donahue, and Donahue’s wife drove to the agreed-upon location and met the dealer, who was sitting in a car with other passengers.  Donahue’s wife initiated the exchange by taking appellant’s and Treadwell’s money to the dealer’s vehicle.  The dealer, however, did not complete the exchange: he took the cash, kept the drugs, and drove away.

Thereafter, appellant and Treadwell attempted to recover their stolen money.  Suspecting Donahue and his wife, appellant and Treadwell drove the couple to a dark isolated road and forced them to disrobe. After searching Donahue and his wife and realizing that they did not have the cash, appellant and Treadwell focused their attention on the complainant.  Appellant and Treadwell, along with Donahue and his wife, drove to the complainant’s house.  The complainant exited his house and spoke with appellant and Treadwell.  Treadwell then forced the complainant at gun point into Treadwell’s vehicle.  Treadwell drove the complainant to the same location where Donahue and his wife were forced earlier to disrobe.  Appellant followed in his vehicle.  When Treadwell stopped his truck on the side of the road, he forced the complainant out of the vehicle.  Appellant then retrieved the gun from his brother, threatened the complainant, and struck him with the gun.  The complainant attempted to escape, but appellant chased the complainant and fired shots at him as he fled.  Hours later, appellant and Treadwell returned to Louisiana. 

The complainant’s body was later discovered by a bystander, prompting a police investigation into the complainant’s death.  During the investigation, Bolton and Donahue cooperated with police and described the events on the night of the murder.  Officers later arrested appellant and his brother in Louisiana and discovered the murder weapon in appellant’s home.  Appellant and Treadwell were ultimately charged with the capital murder of the complainant. Appellant pleaded not guilty, and his case was tried to a jury.  Appellant was convicted of capital murder as alleged in the indictment and sentenced to life in prison.  On appeal he raises one issue:  the trial court erred by failing to charge the jury on the lesser-included offense of kidnapping. 

ANALYSIS

            In his sole issue, appellant complains that the trial court should have instructed the jury on the lesser-included offense of kidnapping.  Because appellant made no request in the trial court that the jury be instructed on the lesser-included offense of kidnapping, any charge error is reversible only if egregious harm is shown.  Druery v. State, 225 S.W.3d 491, 504 (Tex. Crim. App. 2007); Sansom v. State, 292 S.W.3d 112, 125 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d).  Errors that result in egregious harm are those affecting the “very basis of the case, those depriving the defendant of a valuable right, or those that vitally affect a defensive theory.”  Druery, 225 S.W.3d at 504 (quotations and citations omitted).  Appellant contends that the trial court’s failure to include the instruction caused him egregious harm because he was convicted of capital murder and received a harsh sentence.  The State, in response, insists that appellant is estopped from raising this complaint because he invited this particular error by objecting “to the trial court’s inclusion of kidnapping in the charge.” 

            The law of invited error estops a party from making an appellate error of an action he induced.  Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999); Huffman v. State, 234 S.W.3d 185, 198 (Tex. App.—San Antonio 2007, pet. dism’d).  Under the rule, “if a party affirmatively seeks action by the trial court, that party cannot later contend that the action was error.”  Druery, 225 S.W.3d at 505–06; Prystash, 3 S.W.3d at 531.  The State relies on the following exchange to support its contention that appellant requested the lesser-included offense of kidnapping be excluded from the charge, thereby estopping him from challenging the trial court’s exclusion on appeal:

The Court:     Okay. We’ve been discussing the charge for an hour now.  And [the State], you’ve had an opportunity to review the Court’s charge.

The State:      Yes, Judge.

The Court:     Any objections or requested additions?

The State:      None.

The Court:     Defense?

.              . .

Defense Counsel:     Your Honor, I object to any submission on the capital murder issues as there was no evidence or even a scintilla of evidence to indicate that my client participated in the kidnapping.

            In the above exchange, defense counsel was objecting to the inclusion of an instruction on capital murder, not kidnapping, because he believed that there was insufficient evidence on the underlying capital offense of kidnapping.  Contrary to the State’s argument, appellant did not object to the inclusion of the lesser-included offense of kidnapping.  Rather, appellant argued that the jury should not have been instructed on capital murder, namely, “[a] person commits the offense of capital murder if he intentionally commits murder, as hereinbefore defined, in the course of committing or attempting to commit the offense of kidnapping,” because there was insufficient evidence on the lesser offense of kidnapping to support the greater offense of capital murder.  We reject the State’s interpretation of appellant’s objection challenging the charge below in the trial court, and find that appellant did not invite error.  

            Nevertheless, we conclude that the trial court’s failure to include a kidnapping instruction was not error.  An instruction on a lesser-included offense is proper when:  (1) the lesser-included offense is included within the proof necessary to establish the offense charged; 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 offense.  Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005); Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993); see also Tex. Code Crim. Proc. art. 37.09(1).  Kidnapping is necessarily a lesser-included offense of the capital murder charge against appellant.  See Tex. Penal Code § 19.03(a)(2).  Therefore, the issue is whether there is some evidence that appellant is not guilty of capital murder and guilty only of kidnapping.  A person commits the offense of kidnapping if he intentionally or knowingly abducts another person.  Id. § 20.03(a). The term “abduct” means to restrain a person with the intent to prevent his liberation by: (1) secreting or holding him in a place where he is not likely to be found; or (2) using or threatening to use deadly force.  Id. § 20.01(2).   

            Appellant argues that his second statement to police provides some evidence that he did not intend, and indeed did not, shoot the complainant.  Appellant argues that by presenting evidence contradicting his intent to kill the complainant, he has presented some evidence that he is guilty of only kidnapping.  Ironically, the very statement that appellant contends shows him to be guilty of only kidnapping, actually disputes his involvement in the complainant’s kidnapping. By his own statement, appellant adamantly denied any role or participation in the kidnapping and was a mere observer.  Specifically, appellant stated in his second statement to the police:

            After we were sure that [Donahue] and his [wife] did not have the money, we went to [the complainant’s] house and we got him to come outside.  I stayed in my car, and [my brother] made [the complainant] get into his Tahoe.  I really do not know if [my brother] used the gun to get him to get in or not, but I saw them all get back into the Tahoe . . . . [Donahue], his [wife], my brother . . . and [the complainant] were all in the Tahoe, I was the only one in my car.  I did not have the gun . . . it was in my brother’s Tahoe.

            Echoing his statement, appellant presented a trial defense denying any involvement in the kidnapping.  Appellant challenged Donahue and his wife’s testimony identifying appellant as the shooter.  Moreover, appellant objected to the inclusion of a capital murder instruction, contending there was insufficient evidence of his participation in the kidnapping.  “When [a] defendant denies commission of any offense and, therefore, presents no evidence establishing commission of a lesser-included offense, he is not entitled to a charge on the lesser offense.”  Johnson v. State, 84 S.W.3d 726, 731 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (quoting Fraga v. State, 940 S.W.2d 736, 738 (Tex. App.—San Antonio 1997, pet. ref’d)).  Here, appellant denied the commission of any offense.  Moreover, appellant’s second statement to police denying intent to murder does not translate to or reflect intent solely to kidnap the complainant.  In accordance with his statement denying he kidnapped the complainant and his defensive theory at trial, appellant presented no evidence suggesting that, if he was guilty of anything, it was of only the lesser offense of kidnapping.  See id.   

            Furthermore, we must evaluate the evidence in the context of the entire record in reviewing whether appellant is entitled to the lesser-included instruction.  Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998).   The record supports appellant’s guilt of capital murder.  Specifically, Donahue and his wife identified appellant as the shooter at trial, and the murder weapon was recovered from appellant’s house.  In his brief, appellant also acknowledges that “the evidence, viewed in the light most favorable to the verdict, was legally and factually sufficient to support a conviction for capital murder.”  While it is true that appellant denied any intent to kill the complainant in his second statement to police, the statement is not evidence that he is guilty of only kidnapping.  The key word here is “only.”  See id. (requiring that the evidence could acquit the defendant of the greater offense while convicting him of the lesser included offense); see also Johnson, 84 S.W.3d at 730.  The State proved and appellant concedes that there is sufficient evidence of capital murder.  Therefore, appellant has failed to identify some evidence that he is not guilty of capital murder and guilty of only kidnapping. 

            In light of appellant’s denial of committing any offense and the evidence of guilt on capital murder, a rational juror could not have found that, if appellant was guilty of any offense, he was guilty of only kidnapping.  Therefore, the trial court did not err in denying appellant’s requested charge on the lesser-included offense of kidnapping.  Appellant’s sole issue is overruled. We affirm the trial court’s judgment.

                                                                        /s/        Adele Hedges

                                                                                    Chief Justice

Panel consists of Chief Justice Hedges and Justices Seymore and Sullivan.

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1] Because the sufficiency of the evidence is not challenged, we recite only the facts necessary for disposition of the instant appeal.