Kachel, Donnie Leroy ( 2015 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1649-13
DONNIE LEROY KACHEL, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE TENTH COURT OF APPEALS
MCLENNAN COUNTY
K EASLER, J., delivered the opinion of the Court, in which K ELLER, P.J., and
M EYERS, H ERVEY, A LCALA, and Y EARY, JJ., joined. R ICHARDSON, J., filed a
concurring and dissenting opinion, in which J OHNSON, J., joined. N EWELL, J.,
concurred.
OPINION
The State charged Donnie Kachel with indecency with a child by exposure. After
initially denying his presence at the scene, Kachel admitted to changing clothes in the street
outside the victim’s home, but claimed that he saw only an adult woman and requested a
lesser-included instruction on indecent exposure. The judge denied the request, and the court
of appeals affirmed. Because there was some evidence that Kachel exposed himself only to
KACHEL—2
an adult, we reverse and remand the cause to the court of appeals for a harm analysis.
I. Facts and Procedural History
On the evening of October 22, 2010, Katerina Jones and her nine-year-old daughter
returned to their Waco home after a day of shopping. As the two were about to enter their
home, the daughter exclaimed: “Mom, that man has no clothes on.” Jones turned and saw
a man standing naked in the street and behaving “weird, like he was on drugs.” In a panic,
Jones unlocked the door, rushed in with her daughter, and locked the door behind her. She
then called a relative for help, before reporting the incident to 911. While they were waiting
for help, Jones feared that the man would attempt to break into her house, and her daughter
began to cry. Jones later testified that each time she peered through her blinds to see if the
man was still outside, he reacted by thrusting his pelvis forward and fondling himself. When
Jones’s relative arrived, the man got into his truck and stared with a “crazy look” before
speeding away.
Shortly thereafter, a police officer patrolling a nearby truck stop came upon Kachel,
whose truck matched the description given by Jones. As the officer approached the truck,
he saw Kachel in the driver’s seat nervously trying to clothe himself. When questioned,
Kachel told the officer that he had parked at the truck stop on his way home from work in
order to change his clothes. He also denied being near Jones’s house on Richter Avenue.
Kachel then stated that he was in fact going to a friend’s apartment located on Richter
Avenue. Then Kachel changed his story again, stating that he had changed out of his dirty
KACHEL—3
and greasy work clothes on Richter Avenue, before going to his friend’s apartment. He
explained that he was not familiar with the area and did not know at the time that there was
a truck stop nearby where he could have changed instead. Jones and her daughter identified
Kachel at the truck stop as the naked man outside their house.
After his arrest, Kachel admitted to drinking beer and smoking methamphetamine
before he left for his friend’s apartment. He also admitted to smoking methamphetamine
while on Richter Avenue before changing his clothes. Kachel claimed that, while he was
changing his clothes, he saw a woman pull into her driveway, exit her car, and look toward
him. He explained that this caused him to flee because he had been standing in the street in
his thong underwear. But he claimed to have seen no one other than the woman and denied
being naked, masturbating, or displaying his genitals. He also stated that the woman had
been two houses away from him and that he had been changing on the other side of his truck.
The State charged Kachel with indecency with a child by exposure, a third-degree
felony.1 At trial, Kachel did not present any evidence, but did request a jury instruction on
the lesser-included offense of indecent exposure, a Class B misdemeanor.2 The judge,
however, denied the request, holding that there was no evidence of the lesser-included
offense because Kachel denied any exposure at all at the scene and during his post-arrest
interview. The jury convicted Kachel of indecency with a child by exposure and assessed
1
See T EX. P EN. C ODE § 21.11(a)(2)(A).
2
Id. at § 21.08.
KACHEL—4
punishment at sixty years in prison due to his two prior felony convictions. The Tenth Court
of Appeals affirmed, holding that, because Kachel presented no evidence that he was
unaware that a child was present other than his statement that he only saw a woman, he had
not provided some evidence of the lesser-included offense.3
II. Analysis
Whether a defendant is entitled to a lesser-included instruction is governed by a two-
step test. First, we determine “whether the offense contained in the requested instruction is
a lesser-included offense of the charged offense.”4 If it is, then we decide “whether the
admitted evidence supports the instruction.”5 The purpose of a lesser-included instruction
is to avoid leaving the jurors with two “equally distasteful” options: (1) to acquit the
defendant when they believed him or her guilty of the lesser-included offense, or (2) to
convict the defendant of an offense that they did not believe he or she committed.6 To avoid
that predicament, we liberally permit a lesser-included instruction.7
3
Kachel v. State, No. 10-11-00337-CR, 2013 Tex. App. LEXIS 13257, at *5–6
(Tex. App.—Waco Oct. 24, 2013, pet. granted) (mem. op., not designated for
publication).
4
Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011). See also Rousseau
v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993) (“[F]irst, the lesser included
offense must be included within the proof necessary to establish the offense charged.”).
5
Goad, 354 S.W.3d at 446. See also Rousseau, 855 S.W.2d at 673 (“[S]econd, some
evidence must exist in the record that would permit a jury rationally to find that if the defendant
is guilty, he is guilty only of the lesser offense.”).
6
Eldred v. State, 578 S.W.2d 721, 723 (Tex. Crim. App. 1979).
7
Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994).
KACHEL—5
In order to satisfy the first step, the offense generally must fall within one of the four
statutory definitions of a lesser-included offense.8 The second step requires that an appellate
court examine the entire record, and a “statement made by a defendant cannot be plucked out
of the record and examined in a vacuum in a lesser included offense analysis.” 9 To satisfy
this requirement—generally considered a low threshold—a defendant need only show
“[a]nything more than a scintilla of evidence” to support the lesser-included offense.10 But
merely undermining the charged offense is not enough; the defendant must substantiate the
requested lesser-included offense with at least some evidentiary support.11 Therefore, our
analysis turns not on an alleged lack of evidentiary support for the charged offense, but on
whether any evidence of the lesser-included offense exists that would require instruction on
it despite the charged offense. Simply put, we look to whether the lesser-included offense
constitutes a “valid, rational alternative to the charged offense.”12 And in doing so, we
consider neither the credibility of the evidence pertaining to the lesser-included offense, nor
whether it conflicts with other evidence.13 Therefore, we must determine what a jury could
rationally conclude given the evidence, without encroaching upon its role as the sole
8
See T EX. C ODE C RIM. P ROC. art. 37.09(1)–(4).
9
Ramos v. State, 865 S.W.2d 463, 465 (Tex. Crim. App. 1993) (citations omitted).
10
Bignall, 887 S.W.2d at 23.
11
Schweinle v. State, 915 S.W.2d 17, 19 (Tex. Crim. App. 1996).
12
Goad, 354 S.W.3d at 446.
13
Id. at 446–47.
 KACHEL—6
factfinder.
A. Indecent exposure is a lesser-included offense of indecency with a child by
exposure.
A person commits indecency with a child by exposure if, “with a child younger than
17 years of age, whether the child is of the same or opposite sex, the person, with intent to
arouse or gratify the sexual desire of any person, exposes the person’s anus or any part of the
person’s genitals, knowing the child is present.”14 But a person commits only indecent
exposure if “he exposes his anus or any part of his genitals with intent to arouse or gratify
the sexual desire of any person, and he is reckless about whether another is present who will
be offended or alarmed by his act.”15 Thus, indecent exposure is a lesser-included offense
of indecency with a child by exposure because “[t]he elements of these two offenses are
identical except that indecency with a child requires the defendant to know that a child is
present, where indecent exposure requires that the defendant is reckless as to the presence
of another person.”16 Therefore, the court of appeals correctly held the first step satisfied.
B. Some admitted evidence purports to show that Kachel was guilty of only
indecent exposure.
In Jones v. State, we affirmed the court of appeals’ decision to require lesser-included
14
T EX. P EN. C ODE § 21.11(a)(2)(A).
15
Id. at § 21.08(a).
16
Briceno v. State, 580 S.W.2d 842, 844 (Tex. Crim. App. 1979). See also T EX.
C ODE C RIM. P ROC. ART. 37.09(1) (“An offense is a lesser included offense if it is
established by proof of the same or less than all the facts required to establish the
commission of the offense charged.”).
KACHEL—7
instructions on misdemeanor theft and assault for a defendant charged with robbery.17
Because Jones had made both a “blanket” denial of all criminal liability and a self-defense
argument, the State argued that he could not satisfy the second step of the lesser-included
analysis for either theft or assault.18 It cited our earlier admonition against “plucking” a
defendant’s statement out of the record and examining it in a vacuum to argue that the court
of appeals misrepresented Jones’s defense “by taking parts of it out of context.” 19 But we
held that the State misconstrued case law and neglected “the fact that a jury is permitted to
believe or disbelieve any part of a witness’[s] testimony, including a defendant.” 20
Therefore, a defendant can point to his or her own statements as evidence that he or she is
guilty of only the lesser-included offense, even if that defendant also denied committing any
offense.21 And for a lesser-included instruction to serve its purpose, this must be the law.
Otherwise, in order to obtain a lesser-included instruction, a defendant would have no right
to first put the State to its burden to prove the lesser-included offense beyond a reasonable
17
984 S.W.2d 254, 258 (Tex. Crim. App. 1998).
18
Id. at 257–58.
19
Id. at 257.
20
Id. at 258.
21
Id. at 257 (“If there is evidence within a defendant’s testimony which raises the
lesser included offense, it is not dispositive that this evidence does not fit in with the
larger theme of that defendant’s testimony.”).
KACHEL—8
doubt.22 It is, after all, an instruction—not a plea agreement.
Therefore, our analysis must turn, not on plucking Kachel’s initial general denials of
culpability out of the record and examining them in a vacuum, but on whether these
denials—in light of all the other evidence in the record—also foreclosed all culpability as to
the requested lesser-included offense. And although Kachel’s statements are inconsistent and
contradictory, he did make several general denials of any culpability. He initially denied
being on Richter Avenue. Then he admitted to being on Richter Avenue, but that he was
only changing his clothes. Then he also admitted to seeing an adult woman as he was
changing, but that his genitals were covered by his thong underwear and blocked from view
by his truck. But Kachel has consistently denied that he ever saw a child. And because the
jury is “permitted to believe or disbelieve any part” of Kachel’s statements,23 a reasonable
jury—in light of all the evidence in the record—could have:
(1) disbelieved Kachel’s initial general denials of being on Richter Avenue;
(2) believed his admission to changing his clothes in the street on Richter Avenue;
(3) believed his admission to seeing an adult woman while he was changing;
(4) believed his denial of seeing any child while he was changing;
(5) disbelieved his denial that his genitals were covered by his thong underwear and
blocked from the woman’s view by his truck; and
22
See Bignall, 887 S.W.2d at 24 (rejecting a rule that “anytime a defendant denies
the commission of an offense, a charge on a lesser included offense will not be
warranted” as “clearly not the law of this state”).
23
See Jones, 984 S.W.2d at 258.
KACHEL—9
(6) disbelieved his denial that he made any sexual gestures.
And regardless of the likelihood that the jury would have actually made these
conclusions—which it is not our role to determine24 —they nevertheless establish indecent
exposure as a “valid, rational alternative” to indecency with a child by exposure.25 Therefore,
because the only difference between indecency with a child by exposure and indecent
exposure is the culpable mental state relating to the presence of a child, a reasonable juror
could have found Kachel guilty of only indecent exposure, and the trial court therefore erred
in denying his request.26 And given the low threshold of the second step—requiring only
“[a]nything more than a scintilla of evidence”—coupled with our policy of liberally
permitting lesser-included instructions, this is true regardless of whether we ourselves would
have made the same conclusions listed above.27
The court of appeals, however, cited Lofton v. State28 for the proposition that a
“defendant’s own testimony that he committed no offense, or testimony which otherwise
shows that no offense occurred at all, is not adequate to raise the issue of a lesser-included
24
See Sweed v. State, 351 S.W.3d 63, 69 (Tex. Crim. App. 2011) (“It is the jury’s role,
not the court’s, to determine whether there is sufficient evidence to support a lesser-included
offense.”).
25
See Goad, 354 S.W.3d at 446.
26
See Briceno, 580 S.W.2d at 844.
27
See Bignall, 887 S.W.2d at 23–24.
28
45 S.W.3d 649 (Tex. Crim. App. 2001).
KACHEL—10
offense.”29 In Lofton, a defendant—charged with assault on a public servant for striking an
arresting officer—requested a lesser-included instruction on resisting arrest. When he
testified, Lofton “flatly denied” even touching the officer, stating: “I didn’t want to because
I know that would not be right. I was just merely stating that I hadn’t done anything
wrong.”30 Because of that denial, we held that Lofton could not support his request for the
lesser-included instruction on resisting arrest.31 But although Kachel did initially, like
Lofton, flatly deny all criminal culpability by telling officers that he had not been on Richter
Avenue at the time in question, he soon abandoned that position and admitted to seeing a
woman while changing his clothes there in the street. And although Kachel continued to
claim that his genitals were covered by his thong underwear and blocked from view by his
truck, those claims—in light of all the evidence presented to the jury—did not rise to the
level of Lofton’s flat denial of any culpability that would prevent the requested lesser-
included offense from serving as a “valid, rational alternative to the charged offense.” 32
Similarly, the State cites Godsey v. State33 and argues that, because Kachel never
testified and in fact rested without presenting any evidence, his statements to the police are
29
Kachel, 2013 Tex. App. LEXIS 13257, at *5 (citing Lofton, 45 S.W.3d at 652).
30
Lofton, 45 S.W.3d at 651.
31
Id. at 652.
32
See Goad, 354 S.W.3d at 446. See also Bignall, 887 S.W.2d at 24.
33
719 S.W.2d 578 (Tex. Crim. App. 1986).
KACHEL—11
hearsay and therefore cannot constitute “evidence.”34 But in Godsey we did not address, or
even mention the word “hearsay.” And, unlike Godsey, it was the State—not the defendant
himself35 —that elicited these statements during its direct examination of Officers Kent and
Adams and its admission of Kachel’s tape-recorded interview into evidence. The State
cannot claim that the evidence it entered into the record is now somehow not evidence.
Furthermore, the content of Kachel’s statements, taken together, differed from those
in Godsey. Convicted of attempted capital murder for pointing a gun at police officers
outside his apartment, Godsey claimed at trial that “he never went outside of the apartment,
never pointed his gun at the police, never saw any police officers the day of the offense, and
did not intend to murder anyone.” 36 Instead, he testified that he had been shot in the
apartment hallway when “he left the gun in the bedroom and walked into the hallway,
intending to go into the kitchen to get another beer.”37 We rejected Godsey’s argument that
he was improperly denied his requested lesser-included instruction on aggravated assault
because we held that the “evidence” raised as support in effect argued: “I was not there so
I could not intend to kill anyone.”38 And we clarified that Godsey’s claims did not present
34
State’s Brief, at 9–11.
35
See Godsey, 719 S.W.2d at 580.
36
Id. at 584.
37
Id. at 580.
38
Id. at 584.
 KACHEL—12
us with an instance “in which part of a defendant’s testimony could be reasonably believed
by a jury in the context of the facts, so as to support a charge on the lesser included
offense.”39 But again, although Kachel did initially claim that he was not on Richter Avenue,
he soon abandoned that defense and admitted that he had been changing his clothes there, but
that he only saw an adult woman—not a child. Therefore, unlike Godsey, Kachel could point
to some admitted evidence of indecent exposure.
III. Conclusion
Because Kachel requested an instruction on an offense that was included within the
one charged and could support his request with some evidence in the record, the judge erred
in refusing the instruction. Therefore, we reverse the judgment of the court of appeals and
remand the cause to the court of appeals to conduct a harm analysis under Almanza v. State.40
DELIVERED: March 18, 2015
DO NOT PUBLISH
39
Id.
40
686 S.W.2d 157 (Tex. Crim. App. 1984).