Donnie Leroy Kachel v. State ( 2013 )

IN THE
TENTH COURT OF APPEALS
No. 10-11-00337-CR
DONNIE LEROY KACHEL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2011-198-C1
DISSENTING OPINION
I respectfully dissent from the majority’s opinion because I believe that the trial
court erred in denying Appellant Donnie Leroy Kachel’s request for an instruction on
the lesser-included offense of indecent exposure and that Kachel was harmed by such
error.
A defendant’s own testimony that he committed no offense, or testimony that
otherwise shows that no offense occurred at all, is not adequate to raise the issue of a
lesser-included offense. Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001);
Pollard v. State, 392 S.W.3d 785, 803 (Tex. App.—Waco 2012, pet. ref’d). On the other
hand, the defendant’s denial of the commission of the charged offense does not
automatically prohibit the inclusion of a requested jury instruction on a lesser-included
offense. See Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994). The Court of
Criminal Appeals in Bignall expressly rejected such a rule:
The court of appeals held that Appellant’s evidence indicated he was not
guilty of any offense, and therefore, an instruction on theft was
unnecessary. . . . Under such an interpretation, anytime a defendant
denies the commission of an offense, a charge on a lesser included offense
will not be warranted. This is clearly not the law of this state.
Id. (emphasis added). Instead, citing Aguilar v. State, 682 S.W.2d 556 (Tex. Crim. App.
1985), the Bignall court reiterated that the correct test is as follows: “If a defendant
either presents evidence that he committed no offense or presents no evidence, and there
is no evidence otherwise showing that he is guilty only of a lesser included offense, then a
charge on a lesser included offense is not required.” Bignall, 887 S.W.2d at 24.
In this case, there is more than a mere denial of the commission of the offense.
Here, in the portion of Kachel’s videotaped interview that was admitted into evidence,
Kachel denied committing any offense when he denied that he ever exposed himself.
But in the interview, Kachel went further and also denied knowing that a child was
present at all. In the interview, Kachel specifically said that he saw a woman pull into a
driveway and get out of her car. When Don Marshall, the investigator with the
McLennan County District Attorney’s office, then asked Kachel if he saw anyone else
with the woman, Kachel repeatedly denied seeing anyone else with her. The jury was
free to believe these statements that Kachel did not see a child present and disbelieve
Kachel v. State Page 2
the rest of what he said. See Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998)
(“[A] jury is permitted to believe or disbelieve any part of a witness’[s] testimony,
including a defendant. . . . [A] lesser included offense can be raised by any evidence from
any source so long as a rational trier of fact could conclude from that evidence that a
defendant is guilty only of that lesser included offense.” (emphasis added)). And if the
jury believed Kachel’s statements that he did not see a child present and yet believed
Katerina Jones’s testimony that Kachel was walking around naked in the street while
touching his genitals, the jury could rationally find that Kachel is guilty only of indecent
exposure and not indecency with a child by exposure. See TEX. PENAL CODE ANN. §§
21.08(a), 21.11(a)(2)(A) (West 2011); Briceno v. State, 580 S.W.2d 842, 844 (Tex. Crim.
App. 1979). The trial court thus erred in denying Kachel’s request for an instruction on
the lesser-included offense of indecent exposure. See Hall v. State, 225 S.W.3d 524, 536
(Tex. Crim. App. 2007); Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005);
Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993).
The trial court’s erroneous refusal to give a requested instruction on a lesser-
included offense is charge error subject to an Almanza harm analysis. Saunders v. State,
840 S.W.2d 390, 392 (Tex. Crim. App. 1992); see Almanza v. State, 686 S.W.2d 157, 171
(Tex. Crim. App. 1985) (op. on reh’g). Under Almanza, when error in the jury charge is
properly preserved, as is the case here, reversal is required if the charge error resulted
in some harm to the defendant, “some” meaning “any.” Arline v. State, 721 S.W.2d 348,
351 (Tex. Crim. App. 1986); Almanza, 686 S.W.2d at 171. If the charge error involves the
absence of a lesser-included offense instruction that leaves the jury with the sole option
Kachel v. State Page 3
to convict the appellant of the charged offense or to acquit him, “a finding of harm is
essentially automatic because the jury was denied the opportunity to convict the
defendant of the lesser offense.” O’Brien v. State, 89 S.W.3d 753, 756 (Tex. App.—
Houston [1st Dist.] 2002, pet. ref’d) (citing Saunders v. State, 913 S.W.2d 564, 571 (Tex.
Crim. App. 1995)).
In cases such as this, there is a distinct possibility that the jury, believing
the defendant to have committed some crime, but given only the option to
convict him of the greater offense, may have chosen to find him guilty of
that greater offense, rather than to acquit him altogether, even though it
had a reasonable doubt that he really committed the greater offense.
Id. (citing Saunders, 913 S.W.2d at 571 (citing Beck v. Alabama, 447 U.S. 625, 634, 100 S. Ct.
2382, 2399, 65 L. Ed. 2d 392 (1980))).
The trial court in this case instructed the jury solely on the charged offense of
indecency with a child by exposure. The jury, therefore, had two options: find Kachel
guilty of indecency with a child by exposure or acquit him. The jury chose to convict
Kachel of indecency with a child by exposure and assessed his punishment, enhanced
by two previous felony convictions, at sixty years’ confinement. I believe that because
the trial court denied the jury the opportunity to convict Kachel solely of the lesser-
included offense of indecent exposure (a Class B misdemeanor), which it reasonably
could have done based on the evidence presented at trial, its erroneous failure to submit
the lesser-included instruction created “some” harm. See Robalin v. State, 224 S.W.3d
470, 477 (Tex. App.—Houston [1st Dist.] 2007, no pet.); O’Brien, 89 S.W.3d at 756-57.
For these reasons, I respectfully dissent from the majority opinion, would reverse
the trial court’s judgment, and would remand this case to the trial court for a new trial.
Kachel v. State Page 4
REX D. DAVIS
Justice
Dissenting opinion delivered and filed October 24, 2013
Do not publish
Kachel v. State Page 5