Darryl Thomas Reed v. State ( 2014 )

Opinion issued July 24, 2014.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00768-CR
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DARRYL THOMAS REED, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Case No. 1326043
MEMORANDUM OPINION
A jury convicted Darryl Thomas Reed of capital murder, and the trial court
assessed punishment at confinement for life without the possibility of parole. 1 In
1
See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2013) (defining capital
murder as intentional murder in course of committing or attempting to commit
robbery).
his sole issue, Reed contends that the trial court abused its discretion by not
instructing the jury on the lesser-included offense of manslaughter. We affirm.
Background
One night, Reed and several friends decided to order pizza from a local
restaurant and then rob the delivery driver at gunpoint when he arrived. One friend
placed the order and gave the restaurant the delivery address of a vacant house
nearby. When the driver, Phillip Little, arrived at the abandoned house, Reed and
two others approached the car with loaded guns. Pointing guns at the car, one of
them told Little to “give it up, give it up.”
According to Reed, Little quickly shifted gears and tried to drive away,
almost hitting Reed with the car. Reed responded by firing four shots at Little’s
car. One of the four shots went through the car’s rear window, hitting Little in the
back and causing him to slide down into the car seat. Little’s car then swerved off
of the road and crashed into the fence of a nearby house. When the police officers
arrived at the scene, Little was unresponsive. Little was later pronounced dead
upon his arrival at the hospital.
After learning of Little’s death, Reed contacted the police to give his version
of the shooting. In a recorded statement, Reed admitted to shooting Little and
apologized, saying that it was an accident and that he “didn’t mean to kill [Little].”
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Based on his confession, Reed was charged with capital murder. At trial,
before the State rested its case, the trial court gave both parties a proposed jury
charge, which included instructions on capital murder and the lesser-included
offense of felony murder. Reed objected to the proposed charge, and requested an
instruction on manslaughter, based upon Reed’s statement that he had not intended
to kill Little.
While Reed did not testify at trial, the jury heard evidence of his recorded
statement. At the close of evidence, the trial court again reviewed the proposed
jury charge and again Reed requested an instruction on manslaughter. The trial
court denied his request. The final charge instructed the jury on capital murder and
felony murder.
The jury found Reed guilty of capital murder and assessed punishment at life
confinement, without the possibility of parole. Reed timely appealed.
Lesser-included Offense
Reed contends that the trial court should have instructed the jury on the
lesser-included offense of manslaughter because there was “more than a scintilla of
evidence that [he] acted only recklessly” in causing Little’s death and that he did
not shoot Little in furtherance of the attempted robbery. The State responds that
Reed was not entitled to a manslaughter instruction because the same evidence that
would have supported an instruction on manslaughter also supported the court’s
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instruction on another lesser-included offense, felony murder. See TEX. PENAL
CODE ANN. § 19.02(b)(3) (West 2011) (defining felony murder).
A. Standard of review
When a defendant raises a claim of jury-charge error, we apply the
procedure set forth in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
1985). We first determine whether there was error in the charge. Id.; McIntosh v.
State, 297 S.W.3d 536, 542 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). If
the charge was erroneous, we then consider whether the error was harmful.
Almanza, 686 S.W.2d at 172; McIntosh, 297 S.W.3d at 542. An erroneous jury
charge requires reversal when the defendant has properly objected to the charge
and we find “some harm” to his rights. Almanza, 686 S.W.2d at 171; see McIntosh,
297 S.W.3d at 542.
B. Applicable law on lesser-included offense instructions
The Texas Code of Criminal Procedure states that “in 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 2006). A lesser-included offense is one that
(1) is established by proof of the same or less than all the facts
required to establish the commission of the offense charged;
(2) 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;
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(3) differs from the offense charged only in the respect that a less
culpable mental state suffices to establish its commission; or
(4) consists of an attempt to commit the offense charged or an
otherwise included offense.
Id. art. 37.09 (West 2006).
A trial court has a responsibility to instruct the jury on “the law applicable to
the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). Lesser-included
offenses, however, are not considered law applicable to the case; they are
defensive issues, which “frequently depend upon trial strategy and tactics” to
determine if they should be requested. Tolbert v. State, 306 S.W.3d 776, 780 (Tex.
Crim. App. 2010). A trial court has a duty to instruct the jury on lesser-included
offenses only if a party has made a proper request. See id. at 779–80 (noting that
trial courts are “not statutorily required to sua sponte instruct” jury on lesser-
included offenses); cf. Ford v. State, 38 S.W.3d 836, 840 (Tex. App.—Houston
[14th Dist.] 2001, no pet.) (stating trial court may sua sponte instruct jury on
lesser-included offenses, but not statutorily required to do so).
C. Whether the charge was erroneous
Courts apply a two-step analysis when determining whether a trial court
should have granted a request for an instruction on a lesser-included offense: first,
they determine whether the requested offense is a lesser-included offense by
comparing the elements of the two offenses. Young v. State, 428 S.W.3d 172, 175
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(Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (citing Hall v. State, 225 S.W.3d
524 (Tex. Crim. App. 2007). If the requested offense is a lesser-included offense of
the charged offense, then they determine whether any evidence adduced at trial
would support instructing the jury on the lesser-included offense. Id. at 176; see
Hall, 225 S.W.3d at 536 (stating that evidence must support lesser-included
offense as “valid, rational alternative to the charged offense”). The standards for
whether the evidence is legally sufficient to convict a defendant of an offense and
whether the evidence is sufficient to require a lesser-included offense are “quite
different.” Wasylina v. State, 275 S.W.3d 908, 909 (Tex. Crim. App. 2009)
(citation omitted). “The evidence could easily be legally sufficient to support a
conviction for a lesser-included offense but not justify the submission of a lesser-
included-offense instruction because the evidence does not show that the defendant
is guilty only of the lesser-included offense.” Id. at 909–10; see Jimenez v. State,
419 S.W.3d 706, 712 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (applying
Hall and noting that defendant is entitled to instruction on lesser-included offense
only when evidence shows he is guilty only of lesser-included offense).
Reed contends that his recorded statement provided evidence to support a
jury’s conclusion that his actions were “sufficiently detached from the robbery”
and, therefore, “trigger[ed] consideration of manslaughter” as a lesser-included
offense.
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1. Manslaughter is a lesser-included offense of capital murder as
charged
We first consider whether manslaughter is a lesser-included offense of
capital murder. Hall, 225 S.W.3d at 535 (“The first step in the lesser-included
offense analysis [is] determining whether an offense is a lesser-included offense of
the alleged offense . . . .”). A person commits capital murder if he intentionally
commits murder in the course of committing or attempting to commit another
felony, including robbery. TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp.
2013). A person commits manslaughter if he recklessly causes the death of another
person. TEX. PENAL CODE ANN. § 19.04 (West 2011).
Reed was charged with capital murder as follows:
[T]he Defendant, heretofore on or about November 2, 2011, did then
and there unlawfully while in the course of committing and attempting
to commit the robbery of Phillip Little, intentionally cause the death
of Phillip Little by shooting Phillip Little with a deadly weapon,
namely a firearm.
Both parties agree that, as alleged in this case, manslaughter is a lesser-included
offense of capital murder. See Moore v. State, 969 S.W.2d 4, 9–10 (Tex. Crim.
App. 1998) (noting that voluntary manslaughter is lesser-included offense of
capital murder); Gilbert v. State, 196 S.W.3d 163, 165–66 (Tex. App.—Houston
[1st Dist.] 2005, pet. ref’d) (same). Accordingly, we must address whether there
was sufficient evidence to support instructing the jury on that offense. Hall, 225
S.W.3d at 536 (noting that second step of analysis requires courts to ask whether
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“the elements of the lesser offense [are] ‘established by proof of the same or less
than all the facts required to established the commission of the offense charged’?”
(citation omitted)).
2. Whether Reed was entitled to a manslaughter instruction
We consider all of the evidence admitted at trial and determine whether
there is “more than a scintilla of evidence” entitling the defendant to a lesser
charge. Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011); Bridges v.
State, 389 S.W.3d 508, 511–12 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
We may not, however, consider the “credibility of the evidence and whether it
conflicts with other evidence or is controverted.” Goad, 354 S.W.3d at 446–47
(citation omitted); see Bridges, 389 S.W.3d at 512.
Also, “when the evidence relied upon to raise the requested lesser-included
offense establishes a lesser-included offense that is greater than the one requested,
then the defendant is not entitled to his requested submission.” Hudson v. State,
394 S.W.3d 522, 525 (Tex. Crim. App. 2013); see, e.g., Flores v. State, 245
S.W.3d 432, 439 (Tex. Crim. App. 2008) (holding that defendant charged with
murder was not entitled to instruction on deadly conduct when “the evidence on
which the defendant is relying raises another offense that ‘lies between’ the
requested and charged offenses”).
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Here, in addition to capital murder, the trial court also instructed the jury on
felony murder. A person commits felony murder if he commits or attempts to
commit a felony, other than manslaughter, and in the course of and in furtherance
of the commission or attempt, or in immediate flight from the commission or
attempt, commits or attempts to commit an act clearly dangerous to human life that
causes the death of another person. TEX. PENAL CODE ANN. § 19.02(b)(3) (West
2011). The evidence suggests two possible underlying offenses to support the
jury’s conclusion that Reed committed felony murder: robbery and deadly conduct.
See Washington v. State, 417 S.W.3d 713, 721 (Tex. App.—Houston [14th Dist.]
2013, pet. ref’d) (noting deadly conduct is underlying felony for felony murder);
Ortiz v. State, 144 S.W.3d 225, 232–33 (Tex. App.—Houston [14th Dist.] 2004,
pet. ref’d) (noting deadly conduct is lesser-included offense of murder when there
was some evidence that defendant recklessly shot firearm and fatally injured
another person).
A person commits felony deadly conduct when he recklessly engages in
conduct that places another in imminent danger of serious bodily injury by
knowingly discharging a firearm at or in the direction of one or more individuals or
a vehicle, with reckless disregard for whether the vehicle is occupied. TEX. PENAL
CODE ANN. § 22.05(a)–(b) (West 2011); see id. § 19.02(b)(3); Washington, 417
S.W.3d at 721.
9
Reed denied that he intended to kill Little, but he admitted that he fired at
Little’s vehicle, knowing that Little was driving it. This evidence is sufficient for a
jury to conclude that Reed committed the underlying offense of deadly conduct.
See TEX. PENAL CODE ANN. § 22.05 (b), (c) (West 2011) (stating that person
commits deadly conduct by knowingly discharging firearm at or in direction of
occupied vehicle and that recklessness and danger are presumed if actor knowingly
points firearm at or in direction of another whether or not actor believed firearm to
be loaded). Thus the intermediate offense of felony murder based on deadly
conduct foreclosed an instruction on the even lesser-included offense of
manslaughter that Reed requested.
In support of his contention that the evidence supported an instruction on
manslaughter, Reed distinguishes his circumstances from those in Gadsden v.
State, 915 S.W.2d 620, 622–23 (Tex. App.—El Paso 1996, no pet.) (holding trial
court did not err by not instructing jury on involuntary manslaughter when jury
could not have convicted defendant only of that crime) and Fernandez v. State, No.
14–04–00144–CR, 2005 WL 2076492 (Tex. App.—Houston [14th Dist.] Aug. 30,
2005, pet. ref’d) (mem. op., not designated for publication) (holding that trial court
was not required to instruct jury on manslaughter when there was sufficient
evidence that defendant had committed intermediate lesser-included offense of
felony murder). Specifically, Reed contends that, unlike Fernandez and Gadsden,
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he fired his weapon in a “reckless” response to Little almost hitting him with his
car—and not in furtherance of committing a robbery. However, robbery was one of
two available felonies to support a felony murder charge, and we have already
concluded that there was sufficient evidence for the jury to conclude that Reed
engaged in deadly conduct to support a felony murder instruction.2
Accordingly, we conclude that that the trial court did not err by refusing to
instruct the jury on manslaughter.3
We overrule Reed’s sole issue.
2
The evidence that Reed shot at Little while in immediate flight from the attempted
robbery could also support a jury’s conclusion that he had committed felony
murder based. See TEX. PENAL CODE ANN. § 19.02(b)(3) (defining felony murder
as committing or attempting to “commit a felony, other than manslaughter, and in
the course of and in furtherance of the commission or attempt, or in immediate
flight from the commission or attempt, commit[ting] or attempt[ing] to commit an
act clearly dangerous to human life that causes the death of an individual.”
(emphasis added)).
3
We do not reach the issue of harm because we conclude that Reed was not entitled
to an instruction on manslaughter. Even assuming that Reed was entitled to the
manslaughter instruction, the omission of that instruction was harmless because
the jury rejected the lesser-included intermediate offense of felony murder and
found sufficient evidence to convict him of the charged offense of capital murder.
See, e.g., Masterson v. State, 155 S.W.3d 167, 171–72 (Tex. Crim. App. 2005)
(holding that any error caused by not instructing jury on criminally negligent
homicide was harmless when defendant was convicted of charged offense of
capital murder and jury rejected the lesser-included intermediate offense of
manslaughter); Flores v. State, 215 S.W.3d 520, 530 (Tex. App.—Beaumont
2007), aff’d, 245 S.W.3d 432 (Tex. Crim. App. 2008) (holding that any error in
not instructing jury on felony murder was harmless when trial court instructed jury
on manslaughter and injury to child and jury found defendant guilty of greater
charged offense).
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Conclusion
We affirm.
Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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