Raymond Gene Lazarine v. the State of Texas ( 2021 )

Opinion issued December 2, 2021.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00982-CR
———————————
RAYMOND GENE LAZARINE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Case No. 1411997
MEMORANDUM OPINION
A jury found appellant Raymond Gene Lazarine guilty of murder and assessed
his punishment at seventy-five years’ confinement and a $10,000 fine. In four
issues, Lazarine argues (1) Texas Government Code Section 74.056(a) is
unconstitutional as applied in his case, (2) the jury charge improperly allowed for a
non-unanimous verdict because it did not require the jury to agree on the statutory
definition of murder it believed Lazarine committed, (3) the trial court abused its
discretion by denying his motion for mistrial after the prosecutor called him a
“monster” during her opening statement, and (4) the trial court erred by failing to
inquire as to his ability to pay a fine and court costs before assessing a fine and court
costs against him.
We affirm the trial court’s judgment.
Background
At approximately 11:30 a.m. on December 18, 2013, Raymond Gene Lazarine
(“Lazarine”) shot his wife Deborah Lazarine (“Deborah”) six times, including twice
in the face. Lazarine then called the couple’s adult son, Nathan, and confessed to
shooting Deborah. Nathan immediately drove to his parents’ home where he found
his mother lying dead on the living room floor. Lazarine was arrested right after.
When he saw his father at the police station later that day, Nathan told Lazarine that
“he was a monster and he was going to hell.” Officer M. Holbrook with the Houston
Police Department testified that when she escorted Lazarine to the interview room
at the police station, Lazarine told her, “[T]hat’s my son right there, I killed his
mother, he’s right, I’m a monster, and it’s all a dream.”
At trial, Lazarine’s son, Nathan, testified his father was an alcoholic who
would go to the liquor store down the street every morning at 10 a.m. According to
2
Nathan, Lazarine would get “intoxicated, take whatever kind of pills he could or
whatever he had. And by 12:00, he was very much intoxicated and then usually just
passed out by 2:00 or 3:00 every day.” Nathan also testified Lazarine had been
verbally abusive towards Deborah for most of their marriage. He testified his mother
moved to his house for three months in 2012 because she felt unsafe living with
Lazarine. Nathan testified that Lazarine would call his home and leave “voicemails
. . . saying he was going to kill [Deborah]. You know, he had guns around the house
all the time and would say that.”
Nathan’s sisters, Krysta and Casey, echoed similar sentiments about their
father’s addiction and abusive nature.1 Besides being verbally abusive towards
Deborah, Krysta testified that when she was in high school, she saw Lazarine
holding a gun to her mother’s head, and Casey testified that she saw Lazarine
punching her mother in the head on a separate occasion. Casey testified Lazarine
threatened to kill Deborah if she tried to divorce him, and Krysta testified Lazarine
regularly threatened to shoot Deborah. All three children testified that Lazarine was
controlling and manipulative towards their mother.
Lazarine did not deny shooting and killing Deborah. Rather, his defense at
trial was that he shot Deborah while he was asleep. Lazarine’s expert, Jerald
Simmons (“Simmons”), testified that he diagnosed Lazarine with REM Behavior
1
All three siblings were in their 30s and 40s at the time of trial.
3
Disorder, a sleep disorder where a person physically acts out his dreams, and
Parasomnia Overlap Disorder, which he described as a combination of sleepwalking
and REM Behavior Disorder. Simmons opined that Lazarine’s behavior the day of
the shooting was consistent with his diagnoses, and he testified that it is “possible”
for someone with Lazarine’s disorders to pick up a gun, walk to another room, and
then “shoot somebody six times” without waking. Lazarine’s other expert, Victor
Scarano (“Scarano”), opined that Lazarine was asleep when he shot Deborah and
thus he could not have intended to shoot and kill her. The State’s expert, Mark
Pressman (“Pressman”), disagreed with Simmons and Scarano and testified that
Lazarine’s behavior was inconsistent with either REM Behavior Disorder or
sleepwalking and that neither condition could account for Lazarine’s alleged
behavior—getting out of bed, retrieving a gun, walking down the hall into the living
room, and shooting Deborah six times, while remaining asleep.
The indictment against Lazarine alleged the offense of murder in the
conjunctive under Texas Penal Code Sections 19.02(b)(1) and (2). The indictment
alleged Lazarine “intentionally or knowingly cause[d] the death of Deborah Lazarine
. . . by shooting [Deborah] with a deadly weapon, namely a firearm” and “unlawfully
intend[ed] to cause serious bodily injury to [Deborah] . . . and did cause [Deborah’s
death] by intentionally and knowingly committing an act clearly dangerous to human
life, namely by shooting [Deborah] with a deadly weapon, namely a firearm.”
4
Presenting a general verdict form, the trial court gave the following charge to
the jury at the close of the guilt-innocence phase.
Now, if you find from the evidence beyond a reasonable doubt that on
or about the 18th day of December, 2013, in Harris County, Texas, the
defendant, Raymond Gene Lazarine, did then and there unlawfully,
intentionally or knowingly cause the death of Deborah Lazarine, by
shooting Deborah Lazarine with a deadly weapon, namely, a firearm;
or
If you find from the evidence beyond a reasonable doubt that on or
about the 18th day of December, 2013, in Harris County, Texas, the
defendant, Raymond Gene Lazarine, did then and there unlawfully
intend to cause serious bodily injury to Deborah Lazarine, and did cause
the death of Deborah Lazarine by intentionally or knowingly
committing an act clearly dangerous to human life, namely, by shooting
Deborah Lazarine with a deadly weapon, namely, a firearm, then you
will find the defendant guilty of murder, as charged in the indictment.
The jury returned a guilty verdict, finding Lazarine “guilty of murder as changed in
the indictment” and assessed his punishment at seventy-five years’ confinement and
a $10,000 fine.
Texas Government Code Section 74.056
Lazarine’s case was tried before the 184th District Court of Harris County. At
the time of trial, Judge Abigail Anastasio was the elected judge of the 184th District
Court. She did not preside over the trial, however. Judge Belinda Hill, who had
been assigned to serve as visiting judge, presided over the trial instead. In his first
issue, Lazarine argues that Texas Government Code Section 74.056(a), which
authorizes a presiding judge to assign visiting judges to try cases and dispose of
5
accumulated business, is unconstitutional as applied in his case, because it violates
Article V, Section 7 of the Texas Constitution.
A. Standard of Review
The constitutionality of a statute is a question of law we review de novo. Ex
parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013); Smith v. State, No. 01-19-
00442-CR, 2020 WL 6731656, at *4 (Tex. App.—Houston [1st Dist.] Nov. 17, 2020,
pet. ref’d) (mem. op.). A litigant who raises an “as applied” challenge to the
constitutionality of a statute concedes the statute’s general constitutionality and
instead “asserts that the statute is unconstitutional as applied to his particular facts
and circumstances.” State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim.
App. 2011); Smith, 2020 WL 6731656, at *4. We presume the statute is valid, and
that the Legislature has not acted unreasonably or arbitrarily. See Rodriguez v. State,
93 S.W.3d 60, 69 (Tex. Crim. App. 2002); Smith, 2020 WL 6731656, at *4. The
individual challenging the statute has the burden to prove its unconstitutionality.
Rodriguez, 93 S.W.3d at 69; see Schlittler v. State, 488 S.W.3d 306, 313 (Tex. Crim.
App. 2016).
B. Analysis
Judge Susan Brown, the presiding judge of the Eleventh Administrative
Judicial Region, appointed Judge Belinda Hill “to the Criminal District Courts of
Harris County, Texas. . . for the primary purpose of hearing cases and disposing of
6
any accumulated business requested by the court . . . [p]ursuant to Section 74.056,
Texas Government Code.”2 Judge Hill previously served as the judge of the 230th
District Court of Harris County from 1997 until December 2012.
Government Code Section 74.056(a) states:
A presiding judge from time to time shall assign the judges of the
administrative region to hold special or regular terms of court in any
county of the administrative region to try cases and dispose of
accumulated business.
TEX. GOV’T CODE § 74.056. Lazarine does not dispute that Judge Brown’s order of
assignment complies with this section. Rather, he contends the order violates Article
V, Section 7 of the Texas Constitution, which sets out the requirements for judicial
districts and district court judges. Article V, Section 7 of the Texas Constitution
states
The State shall be divided into judicial districts, with each district
having one or more Judges as may be provided by law or by this
Constitution. Each district judge shall be elected by the qualified voters
at a General Election and shall be a citizen of the United States and of
this State, who is licensed to practice law in this State and has been a
2
The assignment states in pertinent part:
Pursuant to Section 74.056, Texas Government Code, I hereby assign the
Honorable Belinda Hill, Senior District Judge, 230th Judicial District Court,
to the Criminal District Courts of Harris County, Texas. This assignment
begins the 28th day of October, 2019 and is for the primary purpose of
hearing cases and disposing of any accumulated business requested by the
court. This assignment shall continue as may be necessary for the assigned
Judge to dispose of any accumulated business and to complete trial of any
case or cases begun during this assignment, and to pass on motions for new
trial and all other matters growing out of accumulated business or cases heard
before the Judge herein assigned, or until terminated by the Presiding Judge.
7
practicing lawyer or a Judge of a Court in this State, or both combined,
for four (4) years next preceding his election, who has resided in the
district in which he was elected for two (2) years next preceding his
election, and who shall reside in his district during his term of office
and hold his office for the period of four (4) years, and who shall receive
for his services an annual salary to be fixed by the Legislature. The
Court shall conduct its proceedings at the county seat of the county in
which the case is pending, except as otherwise provided by law. He
shall hold the regular terms of his Court at the County Seat of each
County in his district in such manner as may be prescribed by law. The
Legislature shall have power by General or Special Laws to make such
provisions concerning the terms or sessions of each Court as it may
deem necessary.
The Legislature shall also provide for the holding of District Court
when the Judge thereof is absent, or is from any cause disabled or
disqualified from presiding.
TEX. CONST. art. V, § 7. Focusing on the last sentence, Lazarine argues Article V,
Section 7 “creates an absolute prohibition on the assignment of visiting judges
outside of situations in which the elected district judge is absent, disabled, or
disqualified.” He thus contends that as applied to him, Government Code Section
74.056(a) violates Article V, Section 7 because it permitted Judge Hill to preside
over his trial, even though nothing in the record suggested Judge Abigail Anastasio,
the elected judge of the 184th District Court, was absent, disabled, or disqualified at
the time of his trial.
This Court recently rejected this same argument under very similar
circumstances in Smith v. State, No. 01-19-00442-CR, 2020 WL 6731656, at *4
8
(Tex. App.—Houston [1st Dist.] Nov. 17, 2020, pet. ref’d) (mem. op.).3 In Smith, a
visiting judge previously assigned to a district court under Government Code Section
74.056(a) presided over Smith’s case. Like Lazarine, Smith argued Section
74.056(a) was unconstitutional because the statute, as applied, permitted the visiting
judge to preside over his case, even though there was no evidence the elected judge
of the district court was unable to preside over Smith’s case due to her absence,
disability, or disqualification. Smith, 2020 WL 6731656, at *5. After analyzing
Article V, Section 7 and its interpretive commentary explaining the purpose of the
constitutional provision, we held that
Both the plain language of [Article V, Section 7’s] text and its apparent
purpose indicate that the provision was intended to ensure that when a
district judge is absent, disabled, or disqualified, court can be held
without significant delay or interruption. Nothing in the provision’s
text, or otherwise, indicates that the legislature lacks authority to enact
legislation permitting eligible and qualified judges to be assigned to
district courts even when the elected judge of the district court is not
absent, disabled, or disqualified.
Smith, 2020 WL 6731656, at *6 (citing Dean v. Dean, 214 S.W. 505, 507 (Tex. Civ.
App.—1919, no writ)); see also Wiggins v. State, 622 S.W.3d 556, 560 (Tex. App.—
Houston [14th Dist.] 2021, pet. ref’d) (following Smith’s reasoning and holding
Wiggins had not met his burden to show that Government Code Section 74.056(a)
3
We issued our opinion in Smith v. State, No. 01-19-00442-CR, 2020 WL 6731656(Tex. App.—Houston [1st Dist.] Nov. 17, 2020, pet. ref’d) (mem. op.) after the
parties filed their briefs in this appeal.
9
was unconstitutional as applied). Based on our interpretation of Article V, Section
7, we held Smith had not met his burden to show that Government Code Section
74.056(a) was unconstitutional as applied.
The same is true here. Pursuant to Smith, we hold Lazarine has not met his
burden to show that Government Code Section 74.056(a) is unconstitutional as
applied to him.
We overrule Lazarine’s first issue.
Jury Unanimity
In his second issue, Lazarine argues the trial court erred by submitting a jury
charge that alleged two separate statutory offenses of murder under Penal Code
Section 19.02(b)(1) and (2). He argues the jury charge, as submitted, allowed the
jury to return a non-unanimous verdict of guilty because it did not require the jury
to agree on the statutory definition of murder it believed Lazarine committed.
A. Standard of Review and Applicable Law
Article V, Section 13 of the Texas Constitution and Texas law requires jury
verdicts to be unanimous in felony cases. TEX. CONST. art. V, § 13; see O’Brien v.
State, 544 S.W.3d 376, 382 (Tex. Crim. App. 2018); Young v. State, 341 S.W.3d
417, 422 (Tex. Crim. App. 2011). The jury “must agree that the defendant
committed one specific crime, but this does not mean that the jury must unanimously
find that the defendant committed that crime in one specific way or even with one
10
specific act.” O’Brien, 544 S.W.3d at 382; see also Young, 341 S.W.3d at 422(holding jury must agree about occurrence of single criminal offense but need not
be unanimous about specific manner and means of how offense was committed).
Although a jury must agree unanimously on each essential element of a crime to
convict, “the requirement of jury unanimity is not violated by a jury charge that
presents the jury with the option of choosing among various alternative manner and
means of committing the same statutorily defined offense.” O’Brien, 544 S.W.3d at
382. When alternate theories of committing the same offense are submitted to the
jury in the disjunctive, it is appropriate for the jury to return a general verdict if the
evidence is sufficient to support a finding under any of the submitted theories.
Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) (en banc); Aguirre
v. State, 732 S.W.2d 320, 326 (Tex. Crim. App. 1987).
In analyzing a jury unanimity challenge, appellate courts examine the statute
defining the offense to determine whether the Legislature created “multiple, separate
offenses, or a single offense” with multiple or alternate methods or means of
commission. Pizzo v. State, 235 S.W.3d 711, 714 (Tex. Crim. App. 2007); see also
O’Brien, 544 S.W.3d at 384 (holding the inquiry “is primarily a question of
legislative intent”). We conduct a statutory analysis “that seeks to ascertain the focus
or gravamen of the offense.” Id. at 383. To summarize
If the gravamen of the crime is the “result of the conduct,” the jury must
be unanimous about the specific result required by the statute but not
11
the specific conduct. If the gravamen of the crime is the “nature of the
conduct,” the jury must be unanimous about the specific criminal act
committed. And if the gravamen of the crime is a “circumstances
surrounding the conduct,” unanimity is required about the existence of
the particular circumstance of the offense.
Id.4
Lazarine was convicted of murder, a result-oriented offense. See Young, 341
S.W.3d at 423 (stating “murder is a ‘result of conduct’ offense”). The Texas Penal
Code provision relevant to our analysis is Section 19.02(b). It provides that:
(b) A person commits [murder] if he:
(1) intentionally or knowingly causes the death of an individual;
(2) intends to cause serious bodily injury and commits an act
clearly dangerous to human life that causes the death of an
individual; or
(3) 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, he commits or attempts to commit an
4
The Texas Court of Criminal Appeals has explained the three general categories of
criminal offenses:
First, “result of conduct” offenses concern the product of certain conduct.
For example, murder is a “result of conduct” offense because it punishes the
intentional killing of another regardless of the specific manner . . . of causing
the person’s death. . . With the second category, “nature of conduct” offenses,
it is the act or conduct that is punished, regardless of any result that might
occur. . . Finally, “circumstances of conduct” offenses prohibit otherwise
innocent behavior that becomes criminal only under specific circumstances.
Young v. State, 341 S.W.3d 417, 423 (Tex. Crim. App. 2011).
12
act clearly dangerous to human life that causes the death of an
individual.
TEX. PENAL CODE § 19.02(b). To convict a defendant for a result-oriented offense
like murder, the jury must be unanimous about (1) the defendant (2) causing the
proscribed result (3) against the complainant (4) on a specific occasion. See
Jefferson v. State, 189 S.W.3d 305, 315–16 (Tex. Crim. App. 2006) (Cochran, J.,
concurring).
The indictment against Lazarine alleged the offense of murder in the
conjunctive under Sections 19.02(b)(1) and (2) of the Texas Penal Code. The
indictment alleged that “on or about December 18, 2013” Lazarine “unlawfully,
intentionally and knowingly cause[d] the death of Deborah Lazarine . . . by shooting
[Deborah] with a deadly weapon, namely a firearm” and “further” that “on or about
December 18, 2013” Lazarine “unlawfully intend[ed] to cause serious bodily injury
to Deborah Lazarine . . . and did cause the death of [Deborah] by intentionally and
knowingly committing an act clearly dangerous to human life, namely by shooting
[Deborah] with a deadly weapon, namely a firearm.”
Although the indictment alleged the offense of murder in the conjunctive, the
trial court instructed the jury in the disjunctive. Presenting a general verdict form,
the trial court gave the following charge to the jury at the close of the guilt-innocence
phase:
13
The defendant, Raymond Gene Lazarine, stands charged by indictment
with the offense of murder, alleged to have been committed on or about
the 18th day of December, 2013, in Harris County, Texas.
...
Now, if you find from the evidence beyond a reasonable doubt that on
or about the 18th day of December, 2013, in Harris County, Texas, the
defendant, Raymond Gene Lazarine, did then and there unlawfully,
intentionally or knowingly cause the death of Debrah Lazarine, by
shooting Debrah Lazarine with a deadly weapon, namely, a firearm; or
If you find from the evidence beyond a reasonable doubt that on or
about the 18th day of December, 2013, in Harris County, Texas, the
defendant, Raymond Gene Lazarine, did then and there unlawfully
intend to cause serious bodily injury to Debrah Lazarine, and did cause
the death of Debrah Lazarine by intentionally or knowingly committing
an act clearly dangerous to human life, namely, by shooting Debrah
Lazarine with a deadly weapon, namely, a firearm, then you will find
the defendant guilty of murder, as charged in the indictment.
The jury returned a guilty verdict, finding Lazarine “guilty of murder, as charged in
the indictment.”
B. Analysis
The question presented by Lazarine is whether the jury charge merely charged
alternate theories of committing the same offense or whether the jury charge
included two separate offenses charged in the disjunctive. Based on the “grammar
test” espoused by Judge Cochran in her concurring opinion in Jefferson v. State, 189
S.W.3d 305, 315–16 (Tex. Crim. App. 2006) (Cochran, J., concurring), Lazarine
argues Section 19.02(b)(1) and (2) of the Texas Penal Code are “two separate
offenses” and thus instructing the jury to return a guilty verdict “if it found [he]
14
committed either of two separate criminal offenses” violated his constitutional
guarantee of jury unanimity. We disagree.
This Court’s opinion in Braughton v. State, 522 S.W.3d 714 (Tex. App.—
Houston [1st Dist.] 2017), aff’d, 569 S.W.3d 592 (Tex. Crim. App. 2018) is
instructive. In that case, Braughton argued the evidence was legally insufficient to
support his murder conviction because there was no evidence establishing he
possessed the required mental state to commit murder. Braughton, 522 S.W.3d at
727. In analyzing the issue, this Court stated:
A person has the requisite mens rea for the offense of murder when he
“intentionally or knowingly causes the death of an individual” or
“intends to cause serious bodily injury and commits an act clearly
dangerous to human life that causes the death of an individual.” TEX.
PENAL CODE § 19.02(b)(1)–(2). A person acts “intentionally” with
respect to the nature or result of his conduct “when it is his conscious
objective or desire to engage in the conduct or cause the result.”
Id. § 6.03(a). A person acts “knowingly” “with respect to a result of
his conduct when he is aware that his conduct is reasonably certain to
cause the result.” Id. § 6.03(b). When, as in this case, the charge
presents two legal theories of murder—knowingly causing death or
intending to cause serious bodily injury and committing an act clearly
dangerous to human life that causes death—the theories are alternative
manners and means of committing the offense of murder, rather than
distinct offenses. See Aguirre v. State, 732 S.W.2d 320, 326 (Tex.
Crim. App. 1982) (en banc) (op. on rehearing).
Id. at 727–28.
Lazarine argues Braughton is not binding because the defendant never argued
his conviction was improper based on a lack of jury unanimity and therefore, our
statement that Section 19.02(b)(1) and (2) are theories of “alternative manners and
15
means of committing the offense of murder, rather than distinct offenses” is dicta.
He further argues this Court did not use Judge Cochran’s eighth-grade grammar test
to determine whether murder under Section 19.02(b)(1) and (2) are the same offense,
but instead relied on the Court of Criminal Appeals’ opinion in Aguirre v. State, 732
S.W.2d 320, 326 (Tex. Crim. App. 1982) (en banc) for this proposition. In Aguirre,
the Court held that an indictment alleging theories of both intentional and knowing
murder and felony murder did not allege different offenses, but only different ways
of committing the same offense. Id. Lazarine contends that the Braughton Court’s
reliance on Aguirre was misplaced because Aguirre was issued almost thirty years
before Braughton and well before Judge Cochran first articulated her eighth-grade
grammar test in Jefferson. Lazarine’s arguments are unpersuasive.
Even if the language in Braughton is dicta, Aguirre is binding precedent from
the Court of Criminal Appeals. And while Aguirre addressed the former versions of
Section 19.02(b)(1) and (3),5 this Court and others have cited routinely to Aguirre
for the proposition that Section 19.02(b)(1), (2) and (3), in their current form, set
forth alternative theories of murder and not, as Lazarine contends, distinct offenses.
See Gilbert v. State, 575 S.W.3d 848, 860 (Tex. App.—Texarkana 2019, pet. ref’d)
(involving Section 19.02(b)(1), (2) and (3)); Smith v. State, 436 S.W.3d 353, 378
(Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (involving Section 19.02(b)(1),
5
Section 19.02(b)(3) is commonly referred to as felony murder.
16
(2) and (3)); Bundy v. State, 280 S.W.3d 425, 433 (Tex. App.—Fort Worth 2009,
pet. ref’d) (involving Section 19.02(b)(1), (2)); Barfield v. State, 202 S.W.3d 912,
916 (Tex. App.—Texarkana 2006, pet. ref’d) (involving Section 19.02(b)(1) and
(3)).
We are not persuaded that Aguirre is of “little precedential value,” as Lazarine
argues. Although Section 19.02 was modified in 1994, the relevant portions of the
statute—what are now Section 19.02(b)(1) and (2)—remain unchanged. That Judge
Cochran’s eighth-grade grammar approach in Jefferson was first articulated after
Aguirre is also of little consequence because even before Jefferson, Texas courts had
long interpreted statutes by first looking to the plain language of the statute. See
Boykin v. State, 818 S.W.2d 782, 785–86 (Tex. Crim. App. 1991) (en banc) (stating
courts focus on “the literal text of statute” when “attempting to discern this collective
legislative intent or purpose,” and noting that “[t]his method of statutory
interpretation is of ancient origin”). Judge Cochran’s eighth-grade grammar
approach is thus not a new test that must be used to determine the Legislature’s
intent; it is a “rule of thumb” that courts may use when analyzing the plain language
of a statute. See Jones v. State, 323 S.W.3d 885, 890 (Tex. Crim. App. 2010) (“One
aspect of grammar is the ‘eighth grade grammar’ approach suggested by Judge
Cochran as ‘a general rule of thumb’ for determining legislative intent.”); Stuhler v.
State, 218 S.W.3d 706, 718 (Tex. Crim. App. 2007) (stating Judge Cochran’s “eighth
17
grade grammar” approach is “a general rule of thumb for making this determination
of legislative intent”). We further note that the Court of Criminal Appeals has
warned against “uncritical[ly]” applying the “grammar test,” cautioning that while
the test is “generally useful” and a good “rule of thumb,” it “will not necessarily
work invariably, in every scenario, to accurately identify legislative intent.” Leza v.
State, 351 S.W.3d 344, 357 (Tex. Crim. App. 2011).
Lazarine argues we must nonetheless analyze Section 19.02(b) using Judge
Cochran’s “eighth-grade grammar” test, which, according to Lazarine, establishes
that Section 19.02(b)(1) and (2) are separate offenses. We disagree. First, courts
have interpreted Section 19.02(b) as setting forth alternative theories of murder, as
opposed to three distinct offenses for decades. Aguirre, 732 S.W.2d at 326. And
contrary to Lazarine’s contention that the issue before us is one of first impression,
courts have continued to do so even when presented with the same unanimity
challenge Lazarine raises. See London v. State, 325 S.W.3d 197, 206–07 (Tex.
App.—Dallas 2008, pet. ref’d) (holding sections 19.02(b)(1) and 19.02(b)(2) did not
constitute two separate statutory offenses of murder and jury charge that allowed
jury to find defendant guilty of murder without agreeing as to which section was
satisfied did not violate defendant’s right to a unanimous verdict); Diko v. State, 488
S.W.3d 855, 858 (Tex. App.—Fort Worth 2016, pet. ref’d) (“This court, on three
previous occasions, has rejected the argument . . . that sections 19.02(b)(1) and
18
19.02(b)(2) constitute two separate offenses and that a trial court violates the
unanimity requirement by allowing the jury to find a defendant guilty without
requiring the jury to agree on which offense the defendant committed.”); Smith, 436
S.W.3d at 378 (“Both the indictment and the jury charge indicate that the only
offense involved in this case was murder by any of the three methods set forth in the
Penal Code . . . . The jury was not required to agree unanimously as to the manner
and means by which appellant did so.”); Garcia v. State, 246 S.W.3d 121, 141 (Tex.
App.—San Antonio 2007, pet ref’d) (“[W]hether the jury determined that Garcia
caused the death of Lesa Garcia [under Section 19.02(b)(1) or 19.02(b)(2)] there was
only one single crime of murder.”). This principle is so well established that we see
no need to engage in any further analysis.6
Even if we were to employ the “eighth-grade grammar” approach to determine
whether the Legislature created multiple, separate offenses, or a single offense with
different methods or means of commission when it drafted Section 19.02(b), we
6
We further note that when interpreting a statute, we must also “consider any prior
judicial construction of the statute.” Jones v. State, 323 S.W.3d 885, 888 (Tex.
Crim. App. 2010). This is especially important when that construction is
longstanding because the Legislature could have changed the statute if it did not
agree with prior judicial interpretation, and “the interests of stare decisis are at their
height for judicial constructions of legislative enactments upon which the parties
rely for guidance in conforming to those enactments.” Id. at 889. Section 19.02 has
been amended only once since 1974, and while the 1994 amendment modified the
language of the felony murder provision, it did not alter the language of what are
now Sections 19.02(b)(1) and (2).
19
would reach the same conclusion. Judge Cochran’s eighth-grade grammar approach
is best summarized as follows:
In sum, we must return to eighth-grade grammar to determine what
elements the jury must unanimously find beyond a reasonable doubt.
At a minimum, these are: the subject (the defendant); the main verb;
and the direct object if the main verb requires a direct object (i.e., the
offense is a result-oriented crime); and the specific occasion (the date
phrase within the indictment, but narrowed down to one specific
incident regardless of the date alleged). Generally, adverbial phrases,
introduced by the preposition “by,” describe the manner and means of
committing the offense. They are not the gravamen of the offense, nor
elements on which the jury must be unanimous.
Jefferson, 189 S.W.3d at 315–16 (Cochran, J., concurring).
Employing Judge Cochran’s grammar test, Lazarine argues that the
“prohibited conduct” under Section 19.02(b)(2) is causing “serious bodily harm,”
while the “prohibited conduct” under Section 19.02(b)(1) is “causes the death of an
individual.” Section 19.02(b)(2) states that a person commits murder if he “intends
to cause serious bodily injury and commits an act clearly dangerous to human life
that causes the death of an individual.” TEX. PENAL CODE § 19.02(b)(2) (emphasis
added). Lazarine evaluates only the first part of Section 19.02(b)(2), ignoring the
second which identifies the gravamen of the offense: “death of an individual.” Were
we to adopt Lazarine’s interpretation, we would in effect be removing “death of an
individual” from Section 19.02(b)(2), rendering that language superfluous or
relegating the gravamen of the offense to the manner and means of committing the
offense. We decline to do so.
20
Section 19.02(b) provides that a person commits murder if he:
(1) intentionally or knowingly causes the death of an individual;
(2) intends to cause serious bodily injury and commits an act
clearly dangerous to human life that causes the death of an
individual; or
(3) 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, he commits or attempts to commit an
act clearly dangerous to human life that causes the death of an
individual.
TEX. PENAL CODE § 19.02(b) (emphasis added). Under Judge Cochran’s “grammar
test,” the subject in Section 19.02(b)(2) is the defendant, the main verb is “causes”
and the direct object of the main verb is “the death of an individual.” Thus, the
gravamen of the crime is the “result of the conduct,” which is the same under Section
19.02(b)(1) and (2): the death of an individual.
We hold consistent with our prior decision in Braughton, that when, as here,
a “charge presents two legal theories of murder—[intentionally or] knowingly
causing death or intending to cause serious bodily injury and [intentionally or
knowingly] committing an act clearly dangerous to human life that causes death—
the theories are alternative manners and means of committing the offense of murder,
rather than distinct offenses.” Braughton, 522 S.W.3d at 727–28; see also Johnson
v. State, 364 S.W.3d 292, 298 (Tex. Crim. App. 2012) (citing all three definitions of
statutory manners of murder and stating: “the focus or gravamen of the offense is
21
that the victim was killed”); Fraser v. State, 593 S.W.3d 883, 890 (Tex. App.—
Amarillo 2019, pet. ref’d) (stating gravamen of offense of murder under all three
subparts of section 19.02(b) “is causing the death of an individual”). Unanimity is
generally not required on the alternate manner and means of committing an offense.
See Kitchens, 823 S.W.2d at 258 ; Aguirre, 732 S.W.2d at 326. Thus, the trial court
did not err in charging the jury.
We overrule Lazarine’s second issue.
Mistrial
During her opening statement, the prosecutor referred to Lazarine as a
“monster.” Lazarine objected and the trial court sustained the objection instructing
the jury to disregard the prosecutor’s statement. Lazarine then moved for a mistrial,
which the trial court denied. In his third issue, Lazarine argues the trial court abused
its discretion by denying his motion for a mistrial.
A. Standard of Review and Applicable Law
When, as here, the trial court instructs the jury to disregard improper
argument, the proper analysis is whether the trial court abused its discretion in
denying the defendant’s motion for mistrial. Archie v. State, 340 S.W.3d 734, 738–
39 (Tex. Crim. App. 2011) (“Because the trial court sustained the appellant’s
objection and instructed the jury to disregard the argument, ‘[t]he only adverse
ruling—and thus the only occasion for making a mistake—was the trial court’s
22
denial of the motion for mistrial.’ Thus, ‘the proper issue is whether the refusal to
grant the mistrial was an abuse of discretion.’”) (quoting Hawkins v. State, 135
S.W.3d 72, 76–77 (Tex. Crim. App. 2004)). Under this standard, we view the
evidence in the light most favorable to the trial court’s ruling and uphold the ruling
if it falls within the zone of reasonable disagreement. Ocon v. State, 284 S.W.3d
880, 884 (Tex. Crim. App. 2009); Griffin v. State, 571 S.W.3d 404, 416 (Tex. App.—
Houston [1st Dist.] 2019, pet. ref’d).
A mistrial is a device used to halt trial proceedings when error is so prejudicial
that the expenditure of further time and expense would be wasteful and futile. Ladd
v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). It is “an extreme remedy and
should be exceedingly uncommon.” Williams v. State, 417 S.W.3d 162, 175 (Tex.
App.—Houston [1st Dist.] 2013, pet. ref’d) (citing Hawkins, 135 S.W.3d at 77(stating mistrial is required only “in extreme circumstances, where the prejudice is
incurable”)); see also Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000)
(“Mistrial is a remedy appropriate for a narrow class of highly prejudicial and
incurable errors[.]”). Granting a motion for mistrial is appropriate only when “the
objectionable events are so emotionally inflammatory that curative instructions are
not likely to prevent the jury from being unfairly prejudiced against the defendant.”
Archie, 340 S.W.3d at 739 (quoting Young v. State, 137 S.W.3d 65, 71 (Tex. Crim.
App. 2004) (en banc)).
23
When constitutional rights are not implicated,7 we evaluate whether a trial
court abused its discretion in denying a mistrial based on improper jury argument by
weighing the factors set forth in Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim.
App. 1998). We consider “(1) the severity of the misconduct (the magnitude of the
prejudicial effect of the prosecutor's remarks), (2) the measures adopted to cure the
misconduct (the efficacy of any cautionary instruction by the judge), and (3) the
certainty of conviction absent the misconduct (the strength of the evidence
supporting the conviction).”8 Id.; see also Archie, 340 S.W.3d at 739. When an
instruction to disregard is sufficient to cure the harm, the trial court does not err by
denying a motion for mistrial. Young, 137 S.W.3d at 72; Griffin, 571 S.W.3d at
416–17.
B. Analysis
At the end of her opening statement, the prosecutor told the jury, “Sometimes
when you are a kid, you hear about monsters under the bed. In this case, it was the
7
Generally, error involving improper jury argument is non-constitutional. See
Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000); Freeman v. State,
340 S.W.3d 717, 728 (Tex. Crim. App. 2011).
8
Although the relevant question is whether the trial court abused its discretion in
denying a motion for mistrial and not whether the decision was harmful, “the
question of whether a mistrial should have been granted involves most, if not all, of
the same considerations that attend a harm analysis.” Hawkins v. State, 135 S.W.3d
72, 76–77 (Tex. Crim. App. 2004) (stating court of appeals and parties
mischaracterized issue as one of harm because when only adverse ruling was trial
court’s denial of motion for mistrial, “the proper issue is whether the refusal to grant
the mistrial was an abuse of discretion.”).
24
monster that’s sitting right there.” Lazarine objected to the prosecutor calling him a
“monster.” The trial court sustained the objection and instructed the jury to disregard
the prosecutor’s statement. Lazarine then moved for a mistrial and the trial court
denied the motion. Lazarine argues the prosecutor’s statement was “inherently
prejudicial,” and the jury could not have been expected to put the statement aside
during its evaluation of the evidence because the statement “caused the jury to doubt
Mr. Lazarine’s defense of acting during his sleep.”9 Applying the Mosley factors,
we consider whether the trial court abused its discretion by denying Lazarine’s
motion for mistrial.
The first Mosley factor considers “the severity of the misconduct, or in other
words, the magnitude of the prejudicial effect of the prosecutor’s [misconduct].”
Archie, 340 S.W.3d at 740. The record reflects that any potential prejudicial effect
resulting from the prosecutor’s statement was mitigated by similar, unobjected to,
testimony elicited later the same day. Lazarine’s son, Nathan, testified that when he
saw Lazarine at the police station on the day of the murder, he told his father that
“he was a monster and he was going to hell.” Officer M. Holbrook also testified that
when she escorted Lazarine to the interview room at the police station, Lazarine told
her, “[T]hat’s my son right there, I killed his mother, he’s right, I’m a monster, and
it’s all a dream.” There was also testimony from all three of Lazarine’s children that
9
Neither Lazarine nor the State mention the Mosley factors in their appellate briefing.
25
Lazarine was a severe alcoholic who had abused Deborah verbally for decades,
threatened to kill her, hit her, and even held a gun to her head. Given this subsequent,
unobjected to, testimony, the first Mosley factor weighs in favor of the trial court’s
decision to deny Lazarine’s motion for a mistrial.
The second Mosley factor considers the measures the trial court adopted to
cure the misconduct. In this case, the trial court immediately applied the curative
measure requested by Lazarine, the instruction to disregard the prosecutor’s
statement.10 Ordinarily, prompt instructions are effective to cure the harm from
improper argument and we generally presume that the trial court’s instruction will
be obeyed by the jury. Archie, 340 S.W.3d at 741. Lazarine does not explain, and
we cannot discern, why the trial court’s instruction to disregard was not effective to
cure the alleged error. Id. at 739 (“Mistrial is the appropriate remedy when the
objectionable events are so emotionally inflammatory that curative instructions are
not likely to prevent the jury from being unfairly prejudiced against the defendant.”).
This factor also weighs in favor of the trial court’s decision to deny Lazarine’s
motion for a mistrial.
The third Mosley factor requires us to consider “the certainty of conviction
absent the misconduct.” Id. at 741. Lazarine does not dispute he shot and killed his
wife, Deborah. Rather, Lazarine argued at trial that he was asleep when he shot her
10
The trial court instructed the jury to “disregard the comment of the prosecutor.”
26
and thus his behavior was not voluntarily. Both Lazarine and the State presented
competing expert testimony regarding Lazarine’s defense. Lazarine’s expert,
Simmons, testified that Lazarine was suffering from REM Behavior Disorder and
Parasomnia Overlap Disorder and that someone with those conditions is capable of
walking into another room with a gun and killing a person while remaining asleep.
Dr. Scarano, Lazarine’s other expert, offered similar testimony. The State’s expert,
Pressman, however, disagreed with Simmons and Scarano and opined that
Lazarine’s behavior was inconsistent with both REM Behavior Disorder and
sleepwalking. The State’s theory, as evidenced by the prosecutor’s opening and
closing statements, was that Lazarine may have been intoxicated when he shot
Deborah, but he concocted his sleeping defense after he realized that voluntary
intoxication is not a defense to murder. The State also argued in closing that
Lazarine began seeking medical attention for an altered mental state after he was
arrested and began sleepwalking in jail, even though his immediate family had never
seen Lazarine sleepwalking before. According to Pressman, sleepwalking is most
common among children, and it would be very unusual for an adult to start
sleepwalking in his 60s, as Lazarine had apparently done.
Lazarine’s children, Nathan, Krysta, and Casey, also testified that Lazarine
was an alcoholic who was physically, verbally, and emotionally abusive towards
their mother during their marriage. Nathan testified that Deborah moved in with him
27
for a few months in 2012 and that Lazarine would call his home and leave voicemails
threatening to kill her. Although Nathan never witnessed Lazarine physically abuse
Deborah, Krysta saw Lazarine holding a gun to her mother’s head and Casey
testified she saw Lazarine punch her mother in the head on a separate occasion.
Casey and Krysta also testified that Lazarine regularly threatened to kill Deborah.
Based on Pressman’s testimony and the children’s testimony that Lazarine
was an abusive alcoholic who had abused and threatened to kill Deborah, there was
sufficient evidence from which the jury could have reasonably rejected Lazarine’s
defense that he was asleep when he shot and killed Deborah. This factor weighs in
favor of the trial court’s decision to deny Lazarine’s motion for a mistrial.
After weighing the Mosley factors, we conclude the prosecutor’s reference to
Lazarine as a “monster” was an isolated incident that was mitigated by similar
testimony from two witnesses. The alleged error was promptly addressed by the
trial court, who immediately instructed the jury to disregard the comment, and the
evidence of guilt was so strong that there is a reasonable certainty Lazarine would
have been convicted absent the misconduct.
Under these circumstances, the trial court was reasonable in believing that its
instruction to disregard the comment was effective and that Lazarine was not
prejudiced by the prosecutor’s remark. See Hawkins, 135 S.W.3d at 85. We
28
conclude the trial court did not abuse its discretion by denying Lazarine’s motion for
mistrial.
We overrule Lazarine’s third issue.
Assessment of Costs and Fines
Texas Code of Criminal Procedure Article 42.15(a-1) states that “during or
immediately after imposing a sentence in a case” the trial court “shall inquire
whether the defendant has sufficient resources or income to immediately pay all or
part of the fine and costs.” TEX. CODE CRIM. PROC. art. 42.15(a-1). In his fourth
issue, Lazarine argues the trial court erred by assessing a $10,000 fine and $440 in
court costs against him without first inquiring about his ability to pay the fine and
costs.
The recitals in the judgment of conviction reflect the trial court ordered
Lazarine to pay a fine and court costs “[a]fter having conducted an inquiry into
[Lazarine’s] ability to pay.” The trial court signed the judgment the same day it
imposed Lazarine’s sentence. We presume the regularity of the trial court’s
judgment and records unless there is affirmative evidence to the contrary. Jones v.
State, 77 S.W.3d 819, 822 (Tex. Crim. App. 2002); Breazeale v. State, 683 S.W.2d
446, 450–51 (Tex. Crim. App. 1985). “Where procedural requirements do not
affirmatively appear in the record to have been violated, a presumption of regularity
of the trial judge’s ruling must prevail.” Smith, 2020 WL 6731656, at *9 (quoting
29
Jones v. State, 646 S.W.2d 449, 449 (Tex. Crim. App. 1983)). The burden is on the
appellant to overcome this presumption. Ex parte Wilson, 716 S.W.2d 953, 956
(Tex. Crim. App. 1986).
The only evidence Lazarine points to in support of a procedural violation is
the fact the trial court did not ask about Lazarine’s ability to pay on the record during
his sentencing hearing. But Article 42.15(a-1) does not obligate the trial court to
make such an inquiry during the sentencing hearing. See TEX. CODE CRIM. PROC.
art. 42.15(a-1). And a silent reporter’s record concerning the trial court’s inquiry
about a defendant’s ability to pay the assessed fine and costs does not contradict a
recital in the judgment reflecting the trial court made the inquiry. See Smith, 2020
WL 6731656, at *9 (citing Simms v. State, 848 S.W.2d 754, 756 (Tex. App.—
Houston [1st Dist.] 1993, pet. ref’d)).
Because there is no affirmative evidence demonstrating a procedural
violation, we hold Lazarine did not overcome the presumption of regularity. See
Smith, 2020 WL 6731656, at *9; see also Breazeale, 683 S.W.2d at 451 (stating that
presumption of judgment’s regularity and truthfulness “is never to be lightly set
aside”).
We overrule Lazarine’s fourth issue.
Conclusion
We affirm the trial court’s judgment.
30
Veronica Rivas-Molloy
Justice
Panel consists of Chief Justice Radack and Justices Rivas-Molloy and Guerra.
Do not publish. TEX. R. APP. P.
31