Rylee Carl Eklund v. State ( 2018 )

NUMBER 13-17-00225-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RYLEE CARL EKLUND, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 207th District Court
of Comal County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Benavides
Memorandum Opinion by Justice Rodriguez
Appellant Rylee Carl Eklund appeals his convictions for murder and aggravated
assault. By twelve issues, appellant challenges the sufficiency of the evidence, the trial
court’s charge, and the constitutional effectiveness of his trial counsel. We affirm.
I. BACKGROUND1
Appellant was indicted on one count of murder and two counts of aggravated
assault. See TEX. PENAL CODE ANN. §§ 19.02(b), 22.02(a)(2) (West, Westlaw through
2017 1st C.S.). The indictments related to the events of July 12, 2014, when appellant
fired a shotgun at three former classmates, killing one and wounding the others. Viewed
in the appropriate light, the evidence at trial establishes the following.
A. The State’s Case
Appellant, who was then nineteen, was friends with Drake Lund and Sawyer
Darwin. In the days preceding the shooting, appellant’s parents were out of town, and
Darwin and Lund visited appellant at his parents’ home. Darwin spent the night there,
and the next morning, Lund went to appellant’s house to show off his new car.
On July 11, appellant texted Darwin about getting psychedelic mushrooms,
marijuana, and ecstasy. Appellant drove to San Antonio to meet a drug dealer that night.
On July 12, appellant invited Darwin to his house to smoke marijuana. Darwin
told appellant that he did not feel like smoking but offered to drink with him, and appellant
agreed. Appellant also invited Lund to his house. Darwin invited along his friend Robert
Bree. Bree understood that they would be drinking and possibly taking psychedelic
mushrooms. Driving his new car, Lund picked up Darwin and Bree and drove to
appellant’s house.
1 This case is before the Court on transfer from the Third Court of Appeals in Austin pursuant to an
order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through
2017 1st C.S.). Because this is a transfer case, we apply the precedent of the Third Court of Appeals to
the extent it differs from our own. See TEX. R. APP. P. 41.3.
2
The boys arrived around 5:00 p.m., while it was daylight. They found the main
gate locked, which Darwin thought was odd. They entered through a side gate, where
they saw appellant’s truck in the driveway. The three knocked on the door of the side
house where appellant usually stayed, but there was no answer. They peered in a
window, but they could not see appellant.
The boys then knocked on the doors of the main residence. Again there was no
answer. They observed that all the lights were off, which they found unusual.
Beginning to worry for appellant’s well-being, the boys continued to knock on doors and
began knocking on windows. They also yelled for appellant, as Darwin described it,
“Rylee, can you hear us? This is Sawyer [Darwin] and Drake [Lund]. Are you there?
Are you okay?” They tried calling appellant twice, to no avail. Several minutes passed.
Eventually, they moved around to the front porch and knocked on the door one
more time. Darwin stood on the front porch, while Lund and Bree stood on the lawn.
While they discussed what to do, appellant fired a 12-gauge shotgun through the
closed window blinds at them. The first shot struck Lund and Darwin; Darwin collapsed
to the ground. Appellant fired two more shots, striking Darwin in the chest and Bree in
the stomach. Bree began to scream and run. Lund soon died as a result of his wounds.
When the shooting stopped, Bree contacted police and applied pressure to
Darwin’s wounds. After a few minutes, appellant emerged from the house crying and
went to Darwin, saying, “Oh, my gosh, Sawyer, what did I do? I’m sorry.” Police arrived,
and Darwin was airlifted to a hospital, where life-saving surgery was performed.
3
Darwin suffered extensive injuries and partial disability to his left arm. Multiple
shotgun pellets remain lodged in his body, including his heart. Pellets also remain in
Bree’s stomach.
B. Appellant’s Testimony and 911 Call
Appellant testified that he was sleeping on the couch in the living room when he
was awakened by the sound of a “gate jingling.” He explained that he looked out the
blinds and saw a car he did not recognize driving up to the side gate of his house.
According to appellant, the vehicle was partially obscured by trees, and he could only see
someone in the back seat whom he did not recognize. He testified that he began locking
the doors and closing the blinds in fear. Appellant stated that he saw an unknown
stranger pass by a window, and he retreated to his parents’ master bedroom where the
firearms were kept, fearing that the strangers were burglars. He locked the bedroom
door, shut himself in the closet, and called 911.
In the 911 recording, appellant spoke in a whisper to the operator, describing his
fear that “one or two” strangers were outside his house. The operator dispatched an
officer but explained that the officer was not nearby. Appellant described hearing the
strangers knocking on the door and, later, talking. Roughly ten minutes into the call,
appellant’s line went silent.
Appellant testified that he grabbed a shotgun and left the closet. He stated that
he heard what sounded like a window being opened, broken, or “something being jostled
with.” He explained that he saw three figures out the window, but could not see their
faces. He decided to fire:
4
A. I fired—the direction I tried to fire was away from them, but with
immediate getaway, with the immediate sense of, “You’re not
supposed to be here. Get away.”
Q. But you fired at the three figures, correct?
A. Yes.
Q. Okay. Why did you do that?
A. I felt they were trying to break in.
Q. Describe the—the manner in which you shot them.
A. I shot—I shot three shots in succession: One shot, two shot, three shots.
Q. Okay. Through the window that the figures were in front of?
A. Yes.
Q. Through the window the noise was coming from?
A. Yes.
Q. What did you hear or see after you pulled the trigger?
A. After I pulled the trigger, I heard screaming and yelling, and I looked
through the blinds.
Q. Okay. What did you hear and see at that point?
A. I saw my friends. I saw my friends were shot outside in front—in the
yard.
Appellant testified that if he knew that it was his friends in the front yard, he would
not have fired, and that his intention was to fire three warning shots.
C. Jury Verdict
At the close of the evidence, the jury found appellant guilty as charged on the
murder and aggravated assault counts. The jury assessed punishment at fifteen years’
confinement on the murder count, and at ten and five years on the aggravated assault
5
counts, respectively. The sentences were ordered to run concurrently. This appeal
followed.
II. SUFFICIENCY OF THE EVIDENCE: TRANSFERRED INTENT
By his first through fifth issues, appellant challenges the sufficiency of the evidence
on intent. He draws attention to the fact that the State did not submit jury instructions on
the law of transferred intent. He contends that without a transferred intent instruction,
the State was required to prove that appellant directed his assaultive acts not at unknown
strangers, but specifically at Lund, Darwin, and Bree. He argues that because the
evidence unequivocally establishes that appellant did not know that the perceived
burglars were his friends, the evidence was insufficient to prove intent, which is an
element of both aggravated assault and murder.
A. Transferred Intent
Under the theory of transferred intent, a person can be held criminally responsible
for causing a result if the only difference between what actually occurred and what he
desired, contemplated, or risked is that a different person was injured, harmed, or
otherwise affected. TEX. PENAL CODE ANN. § 6.04(b)(2) (West, Westlaw through 2017
1st C.S.). Transferred intent is raised when there is evidence that a defendant, with the
required culpable mental state, intends to injure or harm a specific person but injures or
harms a different person. Trevino v. State, 228 S.W.3d 729, 737 (Tex. App.—Corpus
Christi 2006, pet. ref’d) (op. on reh’g). The “classic example” of transferred intent is the
act of firing at an intended victim while that person is in a group of other persons; if the
intended person is killed, the offense is murder, but if a different person in the group is
killed, the offense is murder pursuant to the transferred intent rule. Roberts v. State, 273
6
S.W.3d 322, 330 (Tex. Crim. App. 2008). “Thus where A aims at B with a murderous
intent to kill, but because of a bad aim he hits and kills C, A is uniformly held guilty of the
murder of C.” Martinez v. State, 844 S.W.2d 279, 282 (Tex. App.—San Antonio 1992,
pet. ref’d).
However, the “bad-aim” scenario “is to be distinguished from an entirely different
unintended-victim case—the mistaken-identity situation—which is governed by a quite
separate set of legal rules.” Id. “Thus in the semi-darkness A shoots, with intent to kill,
at a vague form he supposes to be his enemy B but who is actually another person C; his
well-aimed bullet kills C.” Id. “Here too A is guilty of murdering C, to the same extent
he would have been guilty of murdering B had he made no mistake.” Id. “A intended to
kill the person at whom he aimed, so there is even less difficulty in holding him guilty than
in the bad-aim situation.” Id.
The present case does not involve the law of transferred intent. See id. It was
not the State’s theory that appellant was aiming at someone other than the victims and
simply missed his intended target. See id. The State instead introduced evidence that
appellant fired at three individuals on his porch; the fact that these persons were his well-
meaning friends rather than shadowy strangers is immaterial. See id. Therefore, the
law of transferred intent does not apply. See id.
B. Sufficiency of the Evidence
Appellant testified that he did not intend to fire at the perceived strangers, but
instead intended to fire warning shots in an effort to scare them off. He argues that in
light of this testimony, the evidence is insufficient to show that he intended to assault or
kill his friends. When reviewing the sufficiency of the evidence, we view the evidence in
7
the light most favorable to the verdict and determine whether, based on the evidence and
reasonable inferences therefrom, a rational juror could have found the essential elements
of the crime beyond a reasonable doubt. Queeman v. State, 520 S.W.3d 616, 622 (Tex.
Crim. App. 2017). We must presume that the jury resolved any conflicting inferences in
favor of the verdict. Id.
The specific intent to kill may be inferred from the use of a deadly weapon, unless
in the manner of its use it is reasonably apparent that death or serious bodily injury could
not result. Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012); Medina v.
State, 7 S.W.3d 633, 637 (Tex. Crim. App. 1999) (en banc). “If a deadly weapon is used
in [a] deadly manner, the inference is almost conclusive that he intended to kill.” Godsey
v. State, 719 S.W.2d 578, 581 (Tex. Crim. App. 1986) (en banc). “Naturally, the most
obvious cases, and the easiest ones in which to prove a specific intent to kill, are those
cases in which a firearm was used and was fired or attempted to have been fired at a
person.” Id.
Here, appellant fired three shots through the window directly at the individuals who
stood on his front porch, striking all three. A rational jury could have inferred the
necessary intent from this evidence beyond a reasonable doubt, see id., and it could have
disbelieved appellant’s testimony to the contrary. See Queeman, 520 S.W.3d at 622.
We find the evidence sufficient to show the element of intent. See id.
C. Conclusion
Appellant’s first through fifth issues are overruled.
8
III. UNREQUESTED INSTRUCTIONS
By his sixth through tenth issues, appellant protests the trial court’s failure to
instruct the jury on five defensive issues: “apparent danger, the castle doctrine
provisions, use of deadly force to protect property, a view of the events through the eyes
of Appellant alone, [and] mistake of fact.” Appellant concedes that he did not request
instructions on these issues. He contends, however, that the trial court erred by not
instructing the jury on these issues sua sponte.
Texas Code of Criminal Procedure article 36.14 directs the trial judge to deliver to
the jury a written charge distinctly setting forth the law applicable to the case. Mendez
v. State, 545 S.W.3d 548, 551–52 (Tex. Crim. App. 2018) (quoting TEX. CODE CRIM. PROC.
ANN. art. 36.14 (West, Westlaw through 2017 1st C.S.)). This charge should include, at
a minimum, “all of the law applicable to the criminal offense that is set out in the indictment
or information,” as well as “general admonishments, including . . . the presumption of
innocence, proof beyond a reasonable doubt, unanimity of the verdict, and so forth.” Id.
at 552. These matters are always “law applicable to the case.” Id. A judge is obligated
to instruct on these issues sua sponte, even without prompting from counsel. Id.
But not every defense-benefitting instruction is “law applicable to the case,” such
that its exclusion from the charge is necessarily erroneous. Id. For instance, article
36.14 imposes no “duty on trial courts to sua sponte instruct the jury on unrequested
defensive issues” such as mistake of fact. Id. (quoting Posey v. State, 966 S.W.2d 57,
62 (Tex. Crim. App. 1998) (en banc)); see Bennet v. State, 235 S.W.3d 241, 243 (Tex.
Crim. App. 2007) (holding that the trial court had no duty to charge the jury on
unrequested defense-of-property instruction); see also Payne v. State, No. 05-11-00871-
9
CR, 2012 WL 4801520, at *9 (Tex. App.—Dallas Oct. 10, 2012, pet. ref’d) (mem. op., not
designated for publication) (same as to other unrequested modifications of a self-defense
instruction).
Here, appellant complains of the exclusion of five defensive issues from the
charge, but he concedes that he never requested these instructions in the trial court. If
the defendant fails to object to the absence of instructions on defensive issues in the jury
charge, the trial court has committed no error at all; a trial court does not err by failing to
instruct the jury on an issue that was, by virtue of appellant’s silence, simply inapplicable
to the case. See Mendez, 545 S.W.3d at 552. The trial court committed no error by
excluding these unrequested defensive issues from the charge. See id.
We overrule appellant’s sixth through tenth issues.
IV. COMMENT ON THE EVIDENCE
By his eleventh issue, appellant protests the trial court’s decision to instruct the
jury that voluntary intoxication is no defense to the crime charged. He argues that this
instruction constituted an impermissible comment on the weight of the evidence.
A. Standard of Review and Applicable Law
Our review of an alleged jury charge error involves a two-step process. Kirsch v.
State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). Initially, we determine whether error
occurred, and we then determine whether sufficient harm resulted from the error to
require reversal. Id.
The jury is the exclusive judge of the facts proved and of the weight to be given to
the testimony. Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). In
delivering the charge, a trial court should not express any opinion as to the weight of the
10
evidence. Id. (citing TEX. CODE CRIM. PROC. ANN. art. 36.14). With only limited
exceptions, the trial court may not include an instruction that focuses the jury’s attention
on a specific type of evidence that may support a finding of an element of an offense.
Kirsch, 357 S.W.3d at 651. Even an instruction which is facially neutral and legally
accurate may nevertheless constitute an improper comment on the weight of the evidence
if it singles out a particular piece of evidence for special attention. Id.; Bartlett, 270
S.W.3d at 152.
B. Application
Appellant protests that the voluntary intoxication instruction was an impermissible
comment on the weight of the evidence. He asserts that this instruction informed the
jury of the trial court’s view that appellant was intoxicated, without any direct proof of
intoxication.
The penal code provides that voluntary intoxication does not constitute a defense
to the commission of crime. See TEX. PENAL CODE ANN. § 8.04(a) (West, Westlaw
through 2017 1st C.S.).2 A defendant need not rely upon intoxication as a defense in
order for the charge to feature a section 8.04(a) instruction. Sakil v. State, 287 S.W.3d
23, 26 n.8 (Tex. Crim. App. 2009) (citing Taylor v. State, 885 S.W.2d 154, 158 (Tex. Crim.
App. 1994)). Rather, a section 8.04(a) instruction on voluntary intoxication is appropriate
“if there is evidence from any source that might lead a jury to conclude that the
defendant’s intoxication somehow excused his actions.” Id.; Taylor, 885 S.W.2d at 158.
2 “Intoxication” is defined as a disturbance of mental or physical capacity resulting from the
introduction of any substance into the body. TEX. PENAL CODE ANN. § 8.04(d) (West, Westlaw through
2017 1st C.S.).
11
Relying on Taylor, the transfer court for this case has concluded that a voluntary
intoxication instruction is not an improper comment on the weight of the evidence.
Zuliani v. State, 52 S.W.3d 825, 831–32 (Tex. App.—Austin 2001), rev’d on other
grounds, 97 S.W.3d 589 (Tex. Crim. App. 2003). Instead, the court held that the ultimate
question is whether the issue of intoxication is raised by the evidence; if so, a voluntary
intoxication instruction is properly given. See Zuliani, 52 S.W.3d at 832.3
There was evidence from multiple sources that raised the issue of appellant’s
intoxication. Appellant’s parents were out of town the weekend of the shooting, and
Darwin testified that he slept over and drank margaritas with appellant days before. Text
messages revealed that on the day before the shooting, appellant talked with Darwin
about obtaining psychedelic mushrooms, marijuana, and ecstasy from a dealer, and
appellant admitted that he met with the dealer in San Antonio later that day.
On the day of the shooting, appellant invited Darwin over to smoke marijuana, and
Darwin agreed to come drink alcohol with him. Bree testified that he tagged along with
Lund and Darwin with the understanding that they would possibly be ingesting
psychedelic mushrooms at appellant’s place. Bree brought along an anti-anxiety
medication in case anyone experienced issues while using mushrooms.
Appellant testified that when the victims arrived on the afternoon of July 12, he was
sleeping on the couch. He looked out the window and grew afraid because he did not
recognize Lund’s car, despite the fact that Lund had shown the car to appellant just days
3 Other Texas courts have reached similar conclusions. See Woodman v. State, 491 S.W.3d 424,
429 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d); Haynes v. State, 85 S.W.3d 855, 857–58 (Tex.
App.—Waco 2002, pet. ref’d); Garza v. State, 829 S.W.2d 291, 295 (Tex. App.—Dallas 1992, pet. ref’d);
see also Esquivel v. State, No. 04-06-00695-CR, 2007 WL 3171322, at *10–11 (Tex. App.—San Antonio
Oct. 31, 2007, pet. ref’d) (mem. op., not designated for publication).
12
before. Appellant did not recognize two of his closest friends, and he instead grew so
fearful of them that he closed all the blinds, locked the doors, hid in a closet, and called
911. He then shot three times out of the window blinds at the unknown individuals who
were knocking on his front door. Following the shooting, a marijuana pipe, lighter, and
baggie of marijuana were recovered from appellant’s person, and bottles of liquor were
found in the main house. A marijuana grinder was recovered from appellant’s side
house.
This evidence raised the question of whether appellant was intoxicated, see
Zuliani, 52 S.W.3d at 831–32, and the trial court’s simple recitation of the penal code
provisions concerning voluntary intoxication did not convey any opinion as to the weight
of this evidence. See Bartlett, 270 S.W.3d at 150. Instead, the trial court did nothing
more than provide the jury with the law relevant to the situation. See Garza, 829 S.W.2d
at 295. “At worst, the instruction was superfluous”; if the jury believed appellant was not
intoxicated, then the jury could simply ignore the instruction. See Zuliani, 52 S.W.3d at
832. If the jury believed he was intoxicated, the instruction correctly guided them to
ignore the intoxication. See id. The court’s statement of the applicable law was not a
comment on the weight of the evidence. See id.
We overrule appellant’s eleventh issue.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
By his twelfth issue, appellant contends that he received ineffective assistance of
counsel. Appellant argues that trial counsel’s representation fell below the standard of
constitutional adequacy when he failed to request certain defensive instructions and
performed a poor cross-examination of Darwin and Bree.
13
A. Standard of Review and Applicable Law
The Sixth Amendment guarantees a criminal defendant the effective assistance of
counsel. Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App. 2017); see U.S. CONST.
amend. VI. To prevail on an ineffective-assistance-of-counsel claim, an applicant must
prove (1) that his trial counsel’s performance was deficient and (2) that he was prejudiced
by the deficiency. Strickland v. Washington, 466 U.S. 668, 687 (1984). “The
benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct
so undermined the proper functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.” Id. at 686. The defendant bears the burden
of proving by a preponderance of the evidence that counsel was ineffective. Prine v.
State, 537 S.W.3d 113, 116 (Tex. Crim. App. 2017).
Under the first prong of Strickland, counsel’s performance is deficient if it falls
below an objective standard of reasonableness. Strickland, 466 U.S. at 688–89. In
order to satisfy this prong, the defendant must overcome the strong presumption that
counsel’s conduct fell within the wide range of reasonable professional assistance and
that the conduct constituted sound trial strategy. Prine, 537 S.W.3d at 117. To defeat
this presumption, any allegation of ineffectiveness must be firmly founded in the record
and the record must affirmatively demonstrate the alleged ineffectiveness. Id. Trial
counsel should generally be given an opportunity to explain his actions before being found
ineffective. Id. When, as in this case, the record is silent regarding trial counsel’s
strategy, this court can find ineffective assistance of counsel only if the challenged
conduct was “so outrageous that no competent attorney would have engaged in it.” Id.
The record on direct appeal is generally insufficient to satisfy this burden. Id.
14
B. Application
Appellant first protests that trial counsel was deficient in cross-examining certain
witnesses. He argues that trial counsel pursued the wrong strategy by launching an
anemic attempt to show that they were behaving like would-be burglars, thereby justifying
appellant’s fear and defensive actions.
However, appellant proposes no other approach that would have better addressed
the complained-of testimony on cross-examination. More importantly, the record is
devoid of any testimony which could overcome the presumption of reasonable assistance,
and we decline to second-guess counsel’s approach with the benefit of hindsight. See
id. (rejecting an ineffective assistance claim concerning defects in cross-examination
where record was silent about counsel’s strategic thinking).
Appellant also complains that counsel was inadequate because he failed to
request the inclusion of certain defensive issues in the jury charge, including “apparent
danger,”4 use of deadly force in defense of property, mistake of fact, “castle doctrine,” 5
and “a view of the events through the eyes of Appellant alone.” 6 However, the record
fails to disclose why trial counsel did not seek these instructions. Nothing appears of
record rebutting the presumption that counsel’s actions were based on sound trial
4 Appellant draws the phrase “apparent danger” from Hamel v. State, 916 S.W.2d 491, 493 (Tex.
Crim. App. 1996) (“A person has the right to defend himself from apparent danger to the same extent as
he would if the danger were real.”). He produces no authority supporting the use of this phrase in jury
instructions.
5
Appellant uses this term to refer to the rules discussed in penal code 9.32. See TEX. PENAL
CODE ANN. § 9.32(b)–(d) (West, Westlaw through 2017 1st C.S.).
6 Citing Wilson v. State, 145 S.W.2d 890, 893 (Tex. Crim. App. 1940), appellant proposes that in
self-defense cases, a defendant is entitled to special instructions on the defendant’s perspective if there is
evidence that the defendant was in danger of unlawful attack from multiple assailants.
15
strategy, and the failure to request these defensive instructions was not so outrageous
that no competent attorney would have engaged in it. See, e.g., Thompson v. State, 445
S.W.3d 408, 411 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (finding failure to
request defense-of-property instruction was not outrageous where there was meager
evidence raising that defense, in part because the property belonged to a third person);
Chatman v. State, No. 13-10-00190-CR, 2011 WL 1442338, at *5 (Tex. App.—Corpus
Christi Apr. 14, 2011, no pet.) (mem. op., not designated for publication) (finding evidence
insufficient to rebut presumption of reasonable assistance where record was silent as to
counsel’s reasons for not requesting a mistake-of-fact instruction). In the face of an
undeveloped record, we cannot say that appellant carried his burden to satisfy the first
prong of Strickland. See 466 U.S. at 688–89; Prine, 537 S.W.3d at 117.
We overrule appellant’s twelfth and final issue.
VI. CONCLUSION
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
18th day of October, 2018.
16