Aljero Sentese Collins v. State ( 2012 )

Opinion issued May 31, 2012

In The

Court of Appeals

For The

First District of Texas

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NO. 01-11-00155-CR

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aljero sentese collins, Appellant

V.

The State of Texas, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Case No. 1222489

MEMORANDUM OPINION

          A jury found appellant, Aljero Sentese Collins, guilty of the offense of capital murder,[1] and the trial court assessed his punishment at confinement for life.In two issues, appellant contends that the trial court, in its charge to the jury, did not require the jury to find that appellant had the requisite mental state to sustain a conviction for capital murder and erred in not instructing the jury on the lesser-included offense of murder.  

          We affirm.

Background

          A Harris County Grand Jury issued a true bill of indictment, accusing appellant of the felony offense of capital murder and alleging that appellant

unlawfully, while in the course of committing and attempting to commit the BURGLARY OF A BUILDING OWNED BY ELIZABETH THOMAS, intentionally cause[d] the death of [the complainant] DEANNA WILDER WITH A DEADLY WEAPON, NAMELY A FIREARM. 

During trial, LaTonya Thomas, the cousin of the complainant, testified that on June 22, 2009, as she was dropping her children off at the home of her aunt, appellant approached her and asked her if she had seen the complainant, who was his girlfriend.  Although Thomas had just seen the complainant outside the house, Thomas told appellant that she had not seen the complainant because he looked mad.  Thomas then walked up to the house with her children, and appellant followed.  When the front door to the house opened, Thomas saw the complainant sitting in the living room. The complainant looked scared, jumped over a table, and ran into another room.  Thomas tried to close the front door, but appellant used his foot to keep the door open.  Appellant asked to see the complainant, but the aunt closed the door and locked it. Appellant then “kicked the door,” “pulled his gun out,” aimed it at the complainant, and fired it as she ran into a bedroom.  Appellant’s shot almost hit one of the children, and the complainant came out of the bedroom.  Appellant then shot the complainant in the back, and, as Thomas and the complainant tried to wrestle the gun from appellant’s hands, he threw the complainant down onto the floor, stood over her, and shot herin the head, killing her.  

In its charge, the trial court instructed the jury, in pertinent part,

A person commits the offense of murder if he intentionally or knowingly causes the death of an individual.

A person commits the offense of capital murder if he intentionally commits murder, as hereinbefore defined, in course of committing or attempting to commit the offense of burglary of a building.

Burglary of a building is a felony offense.

. . . .

A person commits the offense of burglary of a building if, without the effective consent of the owner, the person:(1) enters a building or any portion of a building not then open to the public, with intent to commit a felony, theft, or an assault; or (2) enters a building and commits or attempts to commit a felony, theft, or an assault.

. . . .

The definition of intentionally relative to the offense of capital murder is as follows: A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to cause the result.

The definition of intentionally relative to the offense of burglary of a building is as follows: A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

. . . .

A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

Before you would be warranted in finding the defendant guilty of capital murder, you must find from the evidence beyond a reasonable doubt not only that on the occasion in question the defendant was in the course of committing or attempting to commit the felony offense of burglary of a building owned by Elizabeth Thomas, as alleged in this charge, but also that the defendant specifically intended to cause the death of [the complainant], by shooting [her] with a deadly weapon, namely a firearm, and unless you so find, then you cannot convict the defendant of the offense of capital murder.

Jury Charge

          In his first issue, appellant argues that the trial court erred in so instructing the jury because “the use of burglary as a predicate offense for the capital murder is constitutionally impermissible when the same felony (the murder) is used to raise criminal trespass to burglary and then used to raise murder to capital murder.”  Appellant further argues that the trial court erred in instructing the jury as it did because the charge “erroneously allowed [him] to be convicted of capital murder” but “denied him due process by failing to [require the jury to] find [the] two specific culpable mental states required under the capital murder statute.”In sum, appellant’s primary complaint is that the jury charge “failed to require a separate intent for burglary and intent for the murder.”

A person commits the offense of capital murder if he intentionally commits a murder “in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat.” Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2011). A person commits the offense of murder if he intentionally or knowingly causes the death of an individual. Id. § 19.02(b)(1) (Vernon 2011). A person commits the offense of burglary if he “without the effective consent of the owner ...enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.” Id. § 30.02(a)(3) (Vernon 2011).

Here, the trial court’s instructions required the jury to find that appellant intentionally caused the death of the complainant and did so in the course of committing or attempting to commit the offense of burglary.  The charge tracked the language of the indictment, and it required the jury to find each element of the offense identified in the relevant statues.  See Tex. Penal Code Ann.§§19.02(b)(1), 19.03(a)(2), 30.02(a)(3).  The Texas Court of Criminal Appeals has rejected arguments identical to those presented by appellant.  See Homan v. State, 19 S.W.3d 847 (Tex.Crim. App. 2000) (rejecting argument that State had improperly used intentional murder of complainant to transform illegal entry of habitation into burglary and then used same intentional murder coupled with burglary to establish offense of capital murder);Matamoros v. State, 901 S.W.2d 470, 474 (Tex.Crim.App.1995) (holding that, where evidence showed appellant entered complainant’s home without permission and subsequently murdered her, intent necessary to establish felony of burglary was shown by ultimate murder).  Accordingly, we hold that the trial court did not err in instructing the jury on the capital-murder offense. 

We overrule appellant’s first issue.

Lesser-Included Offense

          In his second issue, appellant argues that the trial court erred in not instructing the jury on the lesser-included offense of murder because there is “some evidence that he did not burglarize the house.”

We use a two-step analysis to determine whether a defendant is entitled to a lesser-included offense instruction. Hall v. State, 225 S.W.3d 524, 528 (Tex.Crim.App.2007); Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex.Crim.App.1993). First, 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 (4) it consists of an attempt to commit the offense charged or an otherwise included offense. Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2011). We compare the elements of the offense as they are alleged in the indictment or information with the elements of the potential lesser-included offense. Hall, 225 S.W.3d at 535–36.

Second, some evidence must exist in the record that would permit a rational jury to find that the defendant is guilty only of the lesser offense, if he is guilty at all. Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741 (Tex.Crim.App.2005); Rousseau, 855 S.W.2d at 672–73. There must be some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser-included offense. Moore v. State, 969 S.W.2d 4, 8 (Tex.Crim.App.1998). We may not consider whether the evidence is credible, controverted, or in conflict with other evidence. Id. Anything more than a scintilla of evidence entitles a defendant to a lesser charge. Hall, 225 S.W.3d at 536.

Because the State concedes that murder is a lesser-included offense of capital murder, we address only the second prong by examining whether the evidence would allow a rational jury to find that, if appellant was guilty, he was guilty only of murder. See id. The indictment alleged that appellant, in the course of committing burglary, intentionally caused the death of the complainant. For appellant to be guilty only of murder, the jury would have to find that he shot the complainant without committing burglary. See Tex. Penal Code Ann. § 19.03(a) (2) (defining capital murder to include murder “in the course of committing ... burglary”). Although appellant asserts that there was some evidence that he had “merely pushed” open the door of the home rather than kicked it, appellant does not provide a record reference to any testimony from which a fact finder could have determined that appellant did not commit a burglary in the course of shooting the complainant. Thus, there is no evidence in the record from which a rational jury could have convicted appellant only of murder and not of capital murder. Accordingly, we hold that the trial court did not err in denying appellant’s request to instruct the jury on the lesser-included offense of murder.

We overrule appellant’s second issue.

Conclusion

          We affirm the judgment of the trial court. 

                                                                   Terry Jennings

                                                                   Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

Do not publish.  Tex. R. App. P. 47.2(b).

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[1]           See Tex. Penal Code Ann.§ 19.03 (Vernon Supp. 2011).