Troy Wayne McDade v. State ( 2014 )

Opinion issued July 31, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00478-CR
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TROY WAYNE MCDADE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Case No. 1328311
MEMORANDUM OPINION
A jury convicted appellant Troy Wayne McDade of murder, finding that he
used a deadly weapon, namely a firearm, in the commission of the crime. See TEX.
PENAL CODE ANN. § 19.02 (West 2011). The court assessed punishment at 16 years
in prison, and McDade appealed. In a single issue, he contends that the trial court
erred by refusing to charge the jury on the lesser-included offense of deadly
conduct.
We affirm.
Background
Troy Wayne McDade lived in Hockley around the corner from his
godmother and near other relatives including aunts, uncles, and cousins. Because
his mother was deceased, McDade was especially close to his godmother, and he
regarded his cousins as siblings. Beside his house was a shed in which McDade
kept tools and a shotgun, which he testified he received as collateral for a personal
loan he made to a man who was not identified at trial. McDade testified that the
shed was not fully enclosed; rather, it could be accessed through one corner by
simply lifting a metal flap.
Michael Roy Hester also lived in the neighborhood. His sister and other
witnesses testified that he was an alcoholic with a reputation for violence. He
carried a cane, but the evidence was disputed as to whether he relied on the cane to
enable him to walk or if he carried it to threaten people and neighborhood pets. At
trial several witnesses testified that he was something of a vagrant, staying in
abandoned homes or with friends or relatives, occasionally doing odd jobs for
money, and relying on the generosity of his neighbors for food, clothing, and
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material goods. Nevertheless, Hester was part of the neighborhood community, and
McDade testified that Hester was his friend and someone he had frequently helped.
One Friday night in November 2011, after working a twelve-hour day shift,
McDade and his then-fiancée Samantha Shepard went to a birthday party for
McDade’s uncle. McDade testified that he was there for approximately six or eight
hours, until the early morning, and that he drank approximately three or four beers
during that time. Hester also attended the party, and he became intoxicated,
taunting McDade and others by saying that he was their father. McDade testified
that Hester had been telling him that for years. In the early morning before sunrise,
McDade’s uncle asked him to take Hester home, and McDade and Shepard left the
party with Hester. McDade testified that he did not mind giving Hester a ride
because it was raining and he had no reason to fear Hester at that time.
Shepard drove because she had not been drinking alcohol. McDade sat in the
front passenger seat and Hester sat in the rear passenger seat of Shepard’s truck.
Shepard testified that she heard a heated discussion between the two men but did
not hear specifically what they were talking about.
At the time, Hester was staying in an abandoned house near the house
McDade shared with Shepard. When they arrived at the house where Hester was
staying, he refused to get out of the truck. Shepard drove to the house she shared
with McDade, which was approximately a block away, parked, and went inside
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with a plate of leftovers from the party. Hester continued to refuse to leave the
truck. McDade pulled him from the truck and handed him his cane. McDade
reached inside the rear of the truck to grab another plate of leftover food.
According to McDade, Hester then hit him over the head with either his fist
or an object, causing him to bleed profusely. He testified that Hester was
threatening him verbally and coming toward him. McDade went to his shed, which
was a few feet away, reached under the metal flap, and grabbed the shotgun. He
shot it twice into the air as a warning and told Hester to leave. McDade testified
that blood from his head injury was in his eyes, running down his forehead and
onto his clothes. According to McDade, despite the warning shots into the air,
Hester “kept advancing” toward him, so he “lowered the weapon” and “pulled the
trigger.”
McDade said Shepard came out of the house after the last shot was fired.
Shepard testified that she stepped out of the house just as the third shot was fired,
and she saw Hester fall to the ground. Shepard called 9-1-1, and she spoke to
Hester, who was breathing but unresponsive. He later died. Meanwhile, McDade
called his godmother, hid the shotgun in a field near his house, and then went
inside to wash his hands and care for his still-bleeding wound.
The police brought both Shepard and McDade to the police station for
questioning. Both initially fabricated accounts of the events of that evening. But
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upon further questioning, Shepard told the police what McDade had done.
Similary, McDade initially denied any involvement but later admitted shooting and
killing Hester both in his statement to police and in his testimony at trial.
At trial, the State presented forensic DNA evidence that showed samples of
blood on the jeans McDade was wearing at the time of the shooting matched his
own DNA, and one bloodstain matched Hester’s. The medical examiner described
Hester as thin, weighing 147 pounds at 5 feet 8 inches tall. He was heavily
intoxicated at the time of the shooting, with a blood alcohol content of 0.30. He
suffered from natural diseases including cirrhosis of the liver and pulmonary
emphysema, which would not have been fatal. More notably, the medical examiner
testified that her findings regarding the gunshot wound were consistent with Hester
being shot with a shotgun from a distance of two-and-a-half to four feet away. She
said he died from the gunshot wound and that any person would have died from the
gunshot wound in this case, regardless of his underlying health.
The court admitted the videorecording of McDade’s statements to police,
and it was played for the jury. McDade initially described the events of the night,
including his whereabouts before he went to his uncle’s party. He first said that he
dropped off Hester after the party, went home, and later heard gunshots outside his
house. He said he saw Hester lying on the ground and told Shepard to call 9-1-1.
He denied owning a shotgun and insisted that he did not fire a gun that night.
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One of the officers made reference to a gunshot residue test performed on
McDade’s hands and told him that he knew he had lied about something. He said
he knew that Hester had said some things that angered McDade. The officer said
he had no doubt that McDade had shot Hester, but he did not think McDade had
planned to do so. At that point, McDade’s story changed. He admitted that he
owned a shotgun, which he said he kept outside because items had been stolen
from his truck. McDade told the officer that Hester hit him on the head. After that,
while bleeding from the wound, he grabbed the shotgun from his shed and fired a
couple of warning shots while trying to evade Hester who was still approaching.
He said:
I shot him like three times I think it was.
....
I did do it. I’m not denying it. I feel real bad.
....
I did it. I did it. I didn’t mean to do it.
....
I ain’t denying it. I did it.
At trial, McDade’s testimony varied in some respects from the recorded
statement he gave to the police. He testified that on the way home from the party,
Hester had repeatedly asked him for money and a ride to another location where he
could buy crack cocaine. McDade said he refused the requests. He said that Hester
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hit him on the head and that the wound bled profusely. He testified that he did not
want Hester to die and did not intend to kill him:
My intention wasn’t to shoot him. I was just trying to scare him away
for—just for him to leave, and I didn’t want to be hit because he had
draw[n] blood, and I didn’t know what he had on his mind for him to
pull something like that.
....
My purpose wasn’t to shoot Michael Roy Hester. I just actually
wanted to scare him. I was stern [sic], I was scared, and I really was
trying to, I guess, keep that away from my mind because I realized
that, you know, I had no choice. I was only protecting myself because
I felt if—I felt threatened, you know, and I thought he would do
something else to me so . . . I didn’t want to shoot him. I—I wasn’t
doing it on purpose. . . . I was only protecting myself because I felt
threatened.
But he admitted that he in fact shot and killed Hester:
State: I’ll ask you again: Are you telling this jury that you did
in fact kill Michael Hester?
McDade: Yes, ma’am.
State: And, I mean, you’re saying it’s self-defense so you have
to at least start with the point . . . that you did it; right?
McDade: Yes, ma’am.
....
State: Now, I mean, you pulled the trigger; didn’t you?
McDade: Yes, ma’am.
State: It didn’t just fall and discharge? We’re not talking about
an accident; right?
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McDade: No, ma’am, it didn’t fall.
State: Okay. So the gun goes off because you pull the trigger
and shoot him; right?
McDade: Yes, ma’am.
At the charge conference, McDade’s attorney requested an instruction on
deadly conduct, specifically, “if he knowingly discharges a firearm at or in the
direction of one or more individuals.” The trial court denied the request, saying, “I
just don’t think—because of his testimony, I don’t think it fits the mold of what
we’re talking about. I think it’s either murder or self-defense, one or the other.”
The jury was charged on murder and self-defense. The court’s charge
instructed the jury to find McDade “guilty of murder, as charged in the indictment”
if it found that McDade either (1) “unlawfully, intentionally or knowingly cause[d]
the death of Michael Hester, by shooting Michael Hester with a deadly weapon,
namely, a firearm,” or (2) “unlawfully intend[ed] to cause serious bodily injury to
Michael Hester, and did cause the death of Michael Hester by intentionally or
knowingly committing an act clearly dangerous to human life, namely, shooting
Michael Hester with a deadly weapon, namely, a firearm.” The jury found McDade
guilty.1 The trial court later sentenced him to 16 years in prison, which is within
1
The court’s charge set forth the law of self-defense, and it instructed the jury
to acquit or find McDade not guilty if it found that his actions were justified
or if it had a reasonable doubt as to whether McDade was acting in self-
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the statutory range of punishment for a first-degree felony of 5 to 99 years or life in
prison.
Analysis
In a single issue on appeal, McDade argues that the trial court erred by
failing to instruct the jury on the lesser-included offense of deadly conduct.
Specifically, he argues that his testimony that he did not intend to kill Hester and
that he was feeling the effects of a blow to his head at the time of the shooting
demonstrate that he acted recklessly not intentionally.
The Texas Code of Criminal Procedure provides, “[i]n a prosecution for an
offense with lesser included offenses, the jury may find the defendant not guilty of
the greater offense, but guilty of any lesser included offense.” TEX. CODE CRIM.
PROC. ANN. art. 37.08 (West 2014).
An offense is a lesser-included offense if:
(1) it is established by proof of the same or less than all the
facts required to establish the commission of the offense
charged;
(2) it differs from the offense charged only in the respect that a
less serious injury or risk of injury to the same person, property,
or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a
less culpable mental state suffices to establish its commission;
or
defense. This portion of the charge is not contested on appeal. The jury
rejected the self-defense argument.
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(4) it consists of an attempt to commit the offense charged or an
otherwise included offense.
Id. art. 37.09.
We employ a two-pronged test to determine whether a defendant is entitled
to an instruction on a lesser-included offense. Cavazos v. State, 382 S.W.3d 377,
382 (Tex. Crim. App. 2012); Sweed v. State, 351 S.W.3d 63, 67 (Tex. Crim. App.
2011); Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007). The first
step is a question of law, in which the court compares the elements alleged in the
indictment with the elements of the lesser offense to determine “if the proof
necessary to establish the charged offense also includes the lesser offense.”
Cavazos, 382 S.W.3d at 382. “The second step of the lesser-included-offense
analysis is to determine if there is some evidence from which a rational jury could
acquit the defendant of the greater offense while convicting him of the lesser-
included offense.” Sweed, 351 S.W.3d at 67–68. Because this fact question
depends on the evidence presented at trial, we review the entire record in making
this determination on appeal. See id.; Hayward v. State, 158 S.W.3d 476, 478–79
(Tex. Crim. App. 2005). 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)). “Although this threshold showing is low, ‘it is not enough that the
jury may disbelieve crucial evidence pertaining to the greater offense, but rather,
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there must be some evidence directly germane to the lesser-included offense for
the finder of fact to consider before an instruction on a lesser-included offense is
warranted.’” Sweed, 351 S.W.3d at 67–68 (quoting Skinner v. State, 956 S.W.2d
532, 543 (Tex. Crim. App. 1997)). “[T]he standard may be satisfied if some
evidence refutes or negates other evidence establishing the greater offense or if the
evidence presented is subject to different interpretations.” Sweed, 351 S.W.3d at
68.
The indictment in this murder case alleged that McDade “intentionally and
knowingly caused the death of MICHAEL HESTER . . . by SHOOTING
[HESTER] WITH A DEADLY WEAPON, NAMELY, A FIREARM,” and in the
alternative that he “did then and there unlawfully intend to cause serious bodily
injury to MICHAEL HESTER . . . and did cause the death of [HESTER] by
intentionally and knowingly committing an act clearly dangerous to human life,
namely, BY SHOOTING THE COMPLAINANT WITH A DEADLY WEAPON,
NAMELY, A FIREARM.” The offense of deadly conduct can be committed in
two ways that are relevant to this case. See TEX. PENAL CODE ANN. § 22.05 (West
2011). In the first way, a person commits the offense of deadly conduct if he
“recklessly engages in conduct that places another in imminent danger of serious
bodily injury.” Id. § 22.05(a). This is a Class A misdemeanor. Id. § 22.05(e). In the
second way, a person commits the offense of deadly conduct if he “knowingly
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discharges a firearm at or in the direction of . . . one or more individuals.” Id.
§ 22.05(b). This is a third-degree felony. Id. § 22.05(e).
At trial, McDade requested a jury instruction as to felony deadly conduct,
but on appeal he argues only about his entitlement to an instruction as to
misdemeanor deadly conduct. Misdemeanor deadly conduct has a less culpable
mens rea—recklessness—than murder. However, the proof that McDade caused
Hester’s death by shooting him with a firearm would necessarily constitute proof
that he engaged in conduct that placed Hester in danger of serious bodily injury.
See id. § 22.05(a); Ford v. State, 38 S.W.3d 836, 845 (Tex. App.—Houston [14th
Dist.] 2001, pet. ref’d). Accordingly, we conclude that misdemeanor deadly
conduct is a lesser-included offense of murder and that the first step of our inquiry
into whether a jury instruction was warranted is satisfied.2 See TEX. CODE CRIM.
PROC. ANN. art. 37.08 (West 2011); Cavazos, 382 S.W.3d at 382; see also Daniels
v. State, 313 S.W.3d 429, 432 (Tex. App.—Waco 2010, pet. ref’d); Ortiz v. State,
144 S.W.3d 225, 232–34 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).
We next consider the second step of our inquiry: whether there is a scintilla
of evidence that McDade is guilty, if at all, of only misdemeanor deadly conduct
and not murder. See Sweed, 351 S.W.3d at 67–68. McDade argues that his
2
Although not argued on appeal, the same proof needed to show that McDade
caused Hester’s death by shooting him with a firearm would necessarily
constitute proof that he knowingly discharged a firearm at or in the direction
a person. See TEX. PENAL CODE ANN. § 22.05.
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testimony that he did not intend to shoot Hester and that he was feeling the effect
of his head wound when he fired the shotgun show that his actions were merely
reckless. However, McDade’s theory of the case was that he acted in self-defense.
He admitted shooting Hester in his police interview, which was played for the jury,
and in his trial testimony. The prosecutor emphasized this by asking him,
“[Y]ou’re saying it’s self-defense so you have to at least start with the point . . .
that you did it; right?” to which McDade answered, “Yes, ma’am.” But “one
cannot accidentally or recklessly act in self-defense.” See Martinez v. State, 16
S.W.3d 845, 848 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d); see also
Alonzo v. State, 353 S.W.3d 778, 782 (Tex. Crim. App. 2011). Intentional conduct
is implicit in claim of self-defense. See Martinez, 16 S.W.3d at 848; see also
Alonzo, 353 S.W.3d at 782. Thus, McDade’s testimony alone would not be
sufficient to show that he was guilty only of deadly conduct. Rather, for the jury to
find that he committed only deadly conduct it would have to disbelieve the
evidence that he acted intentionally, which supports both the greater offense and
his self-defense argument. This would not satisfy the second prong of our inquiry
or entitle McDade to a jury instruction on deadly conduct as a reckless act. See
Sweed, 351 S.W.3d at 67–68. Accordingly, we hold that the trial court did not err
by not instructing the jury on the lesser-included offense of misdemeanor deadly
conduct. We overrule McDade’s sole issue.
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Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Justices Jennings, Bland, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
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