Mark Augustin Castellano v. State

ACCEPTED
01-14-00486-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
3/31/2015 5:53:09 PM
No. 01-14-00486-CR CHRISTOPHER PRINE
CLERK
In the
Court of Appeals for the First District of Texas
At Houston FILED IN
1st COURT OF APPEALS
 HOUSTON, TEXAS
3/31/2015 5:53:09 PM
No. 1363068 CHRISTOPHER A. PRINE
In the 184th District Court Clerk
Of Harris County, Texas

MARK AUGUSTIN CASTELLANO
Appellant
V.
THE STATE OF TEXAS
Appellee

STATE’S APPELLATE BRIEF

DEVON ANDERSON
District Attorney
Harris County, Texas
TIFFANY JOHNSON
JAMIE REYNA
Assistant District Attorneys
Harris County, Texas
HEATHER A. HUDSON
Assistant District Attorney
Harris County, Texas
State Bar No. 24058991
1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: 713/755-5826
Fax No.: 713/755-5809
Counsel for Appellee
ORAL ARGUMENT WAIVED
IDENTIFICATION OF THE PARTIES
Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list of
the names of all interested parties is provided below.
COUNSEL FOR THE STATE:
Ms. Devon Anderson―District Attorney
Ms. Jamie Reyna
Ms. Tiffany Johnson ―Assistant District Attorneys at trial
Ms. Heather Hudson―Assistant District Attorney on appeal
APPELLANT:
Mark Augustin Castellano
COUNSEL FOR APPELLANT:
Mr. Eric Davis
Ms. Jackie Carpenter―Assistant Public Defenders at trial
Ms. Jani Maselli Wood―Assistant Public Defender on appeal
PRESIDING JUDGE:
Hon. Jan Krocker
i
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 39.7, the State waives oral argument.
TABLE OF CONTENTS
IDENTIFICATION OF THE PARTIES............................................................................i
STATEMENT REGARDING ORAL ARGUMENT......................................................ii
INDEX OF AUTHORITIES ..............................................................................................iv
STATEMENT OF THE CASE........................................................................................... 1
STATEMENT OF FACTS ................................................................................................... 1
SUMMARY OF THE ARGUMENT ................................................................................. 7
REPLY TO APPELLANT’S FIRST POINT OF ERROR ............................................. 9
I. Standard of review and applicable law............................................................. 9
II. The record contains evidence supporting the jury’s rejection of the
issue of sudden passion. .................................................................................. 10
III. Appellant did not establish the issue of sudden passion as a matter
of law. ................................................................................................................ 13
REPLY TO APPELLANT’S SECOND POINT OF ERROR .................................... 14
I. Standard of review and applicable law........................................................... 14
II. Service of request for notice. ......................................................................... 15
III. The notice provided by the State was reasonable under the
circumstances. ................................................................................................... 16
IV. Appellant was not harmed by the lack of notice. ........................................ 18
REPLY TO APPELLANT’S THIRD POINT OF ERROR......................................... 19
ii
I. There is no evidence that would permit the jury rationally to
determine that appellant was guilty only of the lesser offense of
criminally negligent homicide. ........................................................................ 19
II. Any error in the trial court’s failure to submit a lesser included
offense instruction on criminally negligent homicide was harmless.......... 23
CONCLUSION AND PRAYER ...................................................................................... 25
CERTIFICATE OF COMPLIANCE............................................................................... 25
CERTIFICATE OF SERVICE.......................................................................................... 26
iii
INDEX OF AUTHORITIES
CASES
Allen v. State,
202 S.W.3d 364 (Tex. App.--Fort Worth 2006, pet. ref ’d) ........................................... 18
Bradshaw v. State,
244 S.W.3d 490 (Tex. App.--Texarkana 2007, pet. ref ’d) ............................................. 13
Cleveland v. State,
177 S.W.3d 374 (Tex. App.--Houston [1st Dist.] 2005, pet. ref ’d) ............................. 10
Espinosa v. State,
853 S.W.2d 36 (Tex. Crim. App. 1993) ........................................................................... 15
Henderson v. State,
29 S.W.3d 616 (Tex. App.--Houston [1st Dist.] 2000, pet. ref ’d) ......................... 15, 17
Hernandez v. State,
914 S.W.2d 226 (Tex. App.--Waco 1996, no pet.) ................................................... 16, 18
Jackson v. State,
248 S.W.3d 369 (Tex. App.--Houston [1st Dist.] 2007, pet. ref ’d) ............................. 20
Johnson v. State,
967 S.W.2d 410 (Tex. Crim. App. 1998) ......................................................................... 18
Juarez v. State,
409 S.W.3d 156 (Tex. App.--Houston [1st Dist.] 2013, pet. ref ’d) ............................. 23
Levan v. State,
93 S.W.3d 581 (Tex. App.--Eastland 2002, pet. ref ’d) ............................................ 23, 24
Matlock v. State,
392 S.W.3d 662 (Tex. Crim. App. 2013) ......................................................................... 10
McKinney v. State,
179 S.W.3d 565 (Tex. Crim. App. 2005)......................................................................... 12
Moncivais v. State,
425 S.W.3d 403 (Tex. App.--Houston [1st Dist.] 2011, pet. ref ’d) ................... 9, 10, 13
Naasz v. State,
974 S.W.2d 418 (Tex. App.--Dallas 1998, pet. ref ’d) ...................................................... 9
Owens v. State,
119 S.W.3d 439 (Tex. App.--Tyler 2003, no pet.) .......................................................... 17
iv
Rousseau v. State,
855 S.W.2d 666 (Tex. Crim. App. 1993) ......................................................................... 20
Saunders v. State,
913 S.W.2d 564 (Tex. Crim. App. 1995) ................................................................... 23, 24
Scott v. State,
57 S.W.3d 476 (Tex. App.--Waco 2001, pet. ref ’d) ....................................................... 16
Sebalt v. State,
28 S.W.3d 819 (Tex. App.--Corpus Christi 2000, no pet.) ..................................... 15, 16
Self v. State,
860 S.W.2d 261 (Tex. App.--Fort Worth 1993, pet. ref ’d) ........................................... 18
Smith v. State,
355 S.W.3d 138 (Tex. App.--Houston [1st Dist.] 2011, pet. ref ’d) ............................. 13
Stadt v. State,
182 S.W.3d 360 (Tex. Crim. App. 2005) ......................................................................... 20
Thomas v. State,
699 S.W.2d 845 (Tex. Crim. App. 1985) ......................................................................... 20
Trujillo v. State,
227 S.W.3d 164 (Tex. App.--Houston [1st Dist.] 2006, pet. ref ’d) ............................. 20
Webb v. State,
36 S.W.3d 164 (Tex. App.--Houston [14th Dist.] 2000, pet. ref ’d).......... 14, 15, 16, 17
STATUTES
TEX. PENAL CODE ANN. § 19.02(a)(1) (West 2013) ........................................................... 9
TEX. PENAL CODE ANN. § 19.02(a)(2) (West 2013) ........................................................... 9
TEX. PENAL CODE ANN. § 19.02(d) (West 2013) ............................................................... 9
TEX. PENAL CODE ANN. § 19.05(a) (West 2013) .............................................................. 20
TEX. PENAL CODE ANN. § 6.03(d) (West 2013) ............................................................... 20
RULES
TEX. R. APP. P. 44.2(b) .......................................................................................................... 18
TEX. R. EVID. 404(b) ...................................................................................................... 14, 15
v
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Appellant was charged by indictment with the offense of murder. (C.R. 31).
On June 6, 2014, a jury convicted appellant of the charged offense and sentenced him
to 27 years’ confinement in the Institutional Division of the Texas Department of
Criminal Justice. (C.R. 300-01). Appellant filed a timely written notice of appeal.
(C.R. 305-06).
STATEMENT OF FACTS
Appellant was involved in a volatile relationship with the complainant, Michelle
Warner. At the time of the offense, appellant and Warner were living together in an
apartment with their 3-year-old son, Cayden. (5 R.R. 30, 37). On Monday, September
24, 2012, Warner failed to show up for work at the law firm where she had recently
obtained a position as a paralegal. (5 R.R. 144, 148-49). The law firm unsuccessfully
attempted to contact Warner. (5 R.R. 148-49). When Warner did not show up for
work again the following day, her employer notified the police that she was missing.
(5 R.R. 153, 155).
Warner’s brother, David Chiffin, learned that Warner was missing on Monday,
September 24th, when her ex-husband called and notified him that Warner had not
shown up to pick up their 11-year-old daughter, Hayley. (5 R.R. 34-35). Chiffin called
appellant in an attempt to locate Warner. (5 R.R. 35-36). Appellant told Chiffin that
he and Warner had been in an argument Saturday evening, and that she had left the
apartment sometime that night. (5 R.R. 37; 15 R.R. SX 5). Appellant said that
Warner did not take her car, and she left Cayden behind. (15 R.R SX 5).
On September 25, 2012, the police conducted a welfare check at appellant’s
apartment, but did not find anything unusual. (5 R.R. 133-34). The police filed a
missing persons report. (5 R.R. 135). On September 27, 2012, Officer Danny Do
with the Missing Persons Unit of the Houston Police Department called appellant. (5
R.R. 192). During their recorded telephone conversation, appellant told Officer Do
that he came home from work on Saturday evening, September 22nd, and got into a
fight with Warner. (15 R.R. SX 6). Appellant said Warner punched him in the face
and then went into her room and shut the door. Id. Appellant told Officer Do that
he went to her room later that evening to confront her, but Warner was gone. Id.
Appellant stated that Warner left her car, but took her purse, keys, and cell phone. Id.
Appellant also said that Warner was a drug user and had a history of leaving for
several days at a time. Id.
A few weeks before Warner’s disappearance, appellant submitted his
resignation from his job at SugarLandPC, where he worked as an IT technician. (6
R.R. 55, 60). Appellant told his employer that he was going to live with his parents in
Odessa, Texas to get away from Warner. (6 R.R. 60). Appellant subsequently
withdrew his resignation, but asked his employer if he could take off a week from
2
work beginning on Monday, September 24th, so that he could find childcare for
Cayden. (9 R.R. 167-68).
Appellant told Officer Do that he packed up Cayden, got in Warner’s car, and
drove from Houston to his parents’ home in Odessa that Saturday night. (15 R.R. SX
6). Appellant arrived in Odessa the following morning and told his parents that he
and Warner had been in a fight, and that she had left. (8 R.R. 96, 99). Appellant told
Officer Do that he drove back to Houston on Sunday to get the rest of his clothing.
(15 R.R. SX 6). On Monday morning, appellant went to work to turn in his
resignation, and then returned to Odessa. (6 R.R. 73; 9 R.R. 168; 15 R.R. SX 6).
Appellant also said that he left behind a note for Warner. (15 R.R. SX 6). The police
found a note on a mirror in appellant’s apartment which stated:
Michelle,
Cayden and I are gone, you can have the apartment all to yourself. I am
taking the car. Since you can’t pay it, and I now owe my dad $3K b/c of
you, get it refinanced through your rich daddy and get my name off of
it. You are welcome to see Cayden, but since you are on a drug-filled
weekend I guess you [won’t call] since Grandma called and said you
turned your phone off. I will get you drug tested this time! Bitch!
The Asshole
(6 R.R. 111-13; 15 R.R. 220).
The police also recovered surveillance footage of the parking lot in front of
appellant’s apartment from the weekend of September 22nd through September 24th.
(7 R.R. 22). The video shows appellant pulling into the parking lot in his truck at 6:48
3
Saturday evening. (7 R.R. 23). Appellant entered the apartment at 6:57 p.m. (7 R.R.
23). At 8:44 p.m., appellant walks out of the apartment to the parking lot, and backs
Warner’s car into a spot underneath the carport. (7 R.R. 25-25). Appellant proceeded
to make several trips back and forth from the apartment to the car, and eventually left
in Warner’s car at 9:28 on Saturday night. (7 R.R. 25; 15 R.R. SX 149). Appellant
returned to the apartment complex on Monday, September 24th. (7 R.R. 26). At 3:21
a.m., appellant dragged a large container to the car. (7 R.R. 26-27). At 5:41 a.m.,
appellant made multiple trips to the car before leaving around 6:00 a.m. (7 R.R. 29-
30).
In addition, the police recovered evidence from a dumpster in the alley behind
appellant’s parent’s home in Odessa. Inside the dumpster, police found a Pampers
box containing various items, including women’s clothing, appellant’s business cards,
shredded pieces of a credit card which belonged to Warner, a pair of women’s
sunglasses, a pink handbag, feminine hygiene products, and a wad of black tape. (7
R.R. 83-93). The police also found legal documents bearing Warner’s name in a black
plastic container inside the Castellano’s home in the bedroom where appellant was
staying. (8 R.R. 30-31). A portable closet was also removed from appellant’s
bedroom which contained a white purse, a set of keys labeled “Michelle,”
miscellaneous cards bearing Warner’s name, Warner’s student ID card, and a credit
card in Warner’s name. (8 R.R. 31-32).
4
Appellant agreed to fly to Houston for a recorded, non-custodial interview. (6
R.R. 119). Before returning to Houston, appellant was interviewed by the producers
of the “Dr. Phil” television show regarding Warner’s disappearance. (6 R.R. 122-23; 7
R.R. 30-31). On September 30, 2012, appellant met with Fil Waters, a homicide
detective with the Houston Police Department. (6 R.R. 128-29; 15 R.R. SX 7).
Appellant initially maintained that he and Warner had gotten into an argument, that
she had slammed the door to her bedroom, and that he had later discovered that she
was gone. Id. However, appellant eventually admitted that the argument became
violent. Id. Appellant said “I grabbed her by her neck and just threw her on the bed
and I heard it pop and her tongue popped out and that was it. I sit there and held it
and by the time I realized what I did, she was dead.” Id. Appellant demonstrated for
the police how Warner attempted to strike him and how he grabbed her around the
neck. Id. Appellant said “I push her and then I grab her, and then about that time
I’m facing the bed and then I fall on top of her and crush her windpipe.” Id.
Appellant admitted that he “just locked up,” and held Warner’s neck for at least a
minute and a half or two minutes. Id. After killing Warner, appellant taped her feet
together and placed a plastic bag over her head. Id. Then he hid her body in the
closet and drove Cayden to Odessa. Id. When he returned to Houston, appellant put
Warner’s body in a large crate, dragged it down the stairs and loaded it in the car. Id.
Appellant drove to a remote field south of Midland, Texas and buried the body in a
shallow grave. Id.
5
After confessing to the police, appellant placed multiple phone calls to family
members and friends and admitted that he had killed Warner. (8 R.R. 112; 15 R.R. SX
7). Appellant also called the producers of the “Dr. Phil” show and informed them
that he had killed Warner. (5 R.R. 51-52; 7 R.R. 31-32).
Appellant drew a diagram directing police to the general location of Warner’s
body. (7 R.R. 72). In a rural area south of Midland, FBI agent Sherry Rice found a
decomposing body partially covered in dirt. (8 R.R. 38, 53). The body was identified
as Warner by fingerprint comparison. (8 R.R. 139).
The autopsy of Warner’s body revealed that she sustained two fractures to her
airway: a fracture of the hyoid bone and a fracture of the cricoid cartilage. (8 R.R.
161-65). Evidence of petechiae on the inner surfaces of her lips indicated that
Warner died of asphyxiation. (8 R.R. 157-58). The medical examiner opined that the
cause of the Warner’s death was strangulation. (8 R.R. 169). Appellant was arrested
and charged with murder. (7 R.R. 17).
6
SUMMARY OF THE ARGUMENT
Point of Error One: The evidence is legally sufficient to support the jury’s
rejection of appellant’s claim that he was acting under the influence of sudden
passion arising from an adequate cause. Even assuming that the jury believed
appellant’s statements that the complainant yelled at him and attempted to strike him,
this provocation did not rise to the degree that would render an ordinary person
incapable of cool reflection. Furthermore, the jury was entitled to disbelieve
appellant’s statements. Therefore, appellant failed to establish the issue of sudden
passion as a matter of law.
Point of Error Two: The trial court did not abuse its discretion in admitting
extraneous offense testimony over appellant’s objection that the State failed to provide
timely notice pursuant to Rule of Evidence 404(b). Although the notice was only
provided four days before trial, it was not unreasonable for the State to provide notice
immediately upon discovering the extraneous offense evidence. Moreover, appellant
had at least ten days of preparation before the extraneous offense testimony was
presented to the jury. In addition, appellant has not demonstrated that the lack of
notice negatively affected his defensive strategy.
Point of Error Three: The trial court did not err in refusing to submit an
instruction on the lesser included offense of criminally negligent homicide. There is
no evidence in the record that appellant was unaware of the risk of death associated
with strangling the complainant. Furthermore, appellant was not harmed by the lack
7
of an instruction on criminally negligent homicide because the jury received an
instruction on the intervening lesser included offense of manslaughter, but chose to
reject this option in favor of finding that appellant intentionally or knowingly caused
the complainant’s death.
8
REPLY TO APPELLANT’S FIRST POINT OF ERROR
In his first point of error, appellant contends that the evidence is legally
sufficient to support a finding that he killed the complainant under the influence of
sudden passion arising from an adequate cause.
I. Standard of review and applicable law.
The issue of sudden passion may be raised by the defendant to mitigate the
punishment for murder. See TEX. PENAL CODE ANN. § 19.02(d) (West 2013). The
defendant bears the burden to prove by a preponderance of the evidence that the
homicide occurred under the immediate influence of sudden passion arising from an
adequate cause. See id; Naasz v. State, 974 S.W.2d 418, 420 (Tex. App.--Dallas 1998,
pet. ref’d). “Sudden passion” means “passion directly caused by and arising out of
provocation by the individual killed or another acting with the person killed which
passion arises at the time of the offense and is not solely the result of former
provocation.” TEX. PENAL CODE ANN. § 19.02(a)(2) (West 2013). An “adequate
cause” is defined as a “cause that would commonly produce a degree of anger, rage,
resentment, or terror in a person of ordinary temper, sufficient to render the mind
incapable of cool reflection.” Id. § 19.02(a)(1). “Neither ordinary anger nor fear alone
raises an issue on sudden passion arising from adequate cause.” Moncivais v. State, 425
S.W.3d 403, 407 (Tex. App.--Houston [1st Dist.] 2011, pet. ref’d).
In reviewing a challenge to the legal sufficiency of the evidence to support a
factfinder’s rejection of an issue that the defendant had the burden to prove, a civil
9
law standard is applied. See Moncivais, 425 S.W.3d at 407; Cleveland v. State, 177 S.W.3d
374, 386-87 (Tex. App.--Houston [1st Dist.] 2005, pet. ref’d). The defendant must
overcome two obstacles. First, the reviewing court examines the record for evidence
favorable to the jury’s finding, ignoring all evidence to the contrary unless a
reasonable factfinder could not. See Matlock v. State, 392 S.W.3d 662, 669 (Tex. Crim.
App. 2013); Cleveland, 177 S.W.3d at 387. If there is no evidence supporting the
finding, the reviewing court then examines the record to determine whether the
defendant established, as a matter of law, that he killed the complainant while under
the influence of sudden passion arising from an adequate cause. Cleveland, 177 S.W.3d
at 387-89. In determining whether the defendant has established sudden passion as
matter of law, the reviewing court does not consider evidence of sudden passion
which is subject to a credibility assessment by the factfinder. Id. at 389. In most
cases, the issue of sudden passion is resolved by the jury’s assessment of the witness’s
credibility; therefore, a defendant would rarely be able to establish sudden passion as a
matter of law. Id.1
II. The record contains evidence supporting the jury’s rejection of the issue of sudden passion.
In support of his claim that he was acting under the influence of sudden
passion, appellant cites to statements made during his non-custodial confession to the
1
This Court has previously acknowledged that a defendant can establish the issue of sudden passion
as a matter of law only in “those rare instances in which the sudden passion issue can be determined
from evidence that is not subject to a credibility determination by the jury as, for example, a
stipulation of evidence by the parties.” Id.
10
police.2 Appellant told Investigator Waters that he came home from work and got
into an argument with Warner. (15 R.R. SX 7). Appellant stated that Warner called
him “a sorry fucking pussy,” and said that she would control him for the rest of his
life. Id. According to appellant, Warner was screaming in his face and she attempted
to strike him. Id. Appellant initially stated that grabbed her by the neck and threw her
on the bed. Id. Appellant later stated that he grabbed her around the neck, they fell
backwards onto the bed, he “twist[ed],” and then he heard a “pop.” Id.
Appellant also performed a visual demonstration of the altercation for
Sergeant Brian Harris. Id. Appellant reenacted how he pushed Warner, grabbed her
around the neck, and held her down on the bed. Id. Appellant stated that he “just
locked up” and remained on top of Warner for at least a minute and a half or two
minutes. Id. Appellant indicated that he heard a popping noise and then Warner’s
tongue stuck out. Id.
The evidence is sufficient to support the jury’s negative finding on the issue of
sudden passion because appellant’s confession reflects that he did not have adequate
cause to strangle the complainant. Even assuming that the jury believed appellant’s
claim that the complainant cursed at him and attempted to strike him, these actions
do not provoke such a degree of anger, rage, resentment or terror that an ordinary
2
Appellant also relies upon the testimony of defense witness John Laughlin that the complainant’s
physical injuries were consistent with the defensive theory that appellant fell on her and accidentally
broke her neck. See (Appellant’s Brief pp. 9, 11). However, this testimony has no bearing on
whether appellant was acting under the influence of sudden passion arising from an adequate cause.
11
person would have been rendered incapable of cool reflection. See McKinney v. State,
179 S.W.3d 565, 570 (Tex. Crim. App. 2005) (holding that the victim’s actions of
shouting at the defendant and pushing the defendant did not rise to the level of
adequate cause). Moreover, there is no evidence that the complainant was armed, or
that appellant was injured.
In addition the record reflects that appellant had a prior history of violent
behavior. Appellant told the police that he had previously gotten into a fight with the
complainant, and he grabbed her by the neck, tackled her to the ground, and held her
until she said she could not breathe. (15 R.R. SX 7). In addition, appellant’s co-
worker, Reynaldo Trinidad, testified that appellant told him about an incident in 2009
where he choked the complainant for eight seconds. (9 R.R. 113-15). Trinidad
further testified about an unrelated incident where appellant attempted to run over
the complainant with his car. (9 R.R. 116-19).
The jury also heard testimony from appellant’s supervisor, Eric Johnson, that
appellant threatened to kill Warner on two different occasions. (9 R.R. 156). First,
appellant told Johnson that he was going to kill Warner so that his parents could take
care of Cayden. (9 R.R. 156-57, 189-91). On another occasion, appellant came in to
work yelling that Warner had physically assaulted him. (9 R.R. 158). Appellant said
that he needed to find a pipe because he was going to kill her. (9 R.R. 159). The
second threat occurred only a few months before the murder. (9 R.R. 159). In
addition, Johnson testified that appellant had requested to take the week beginning
12
September 24th off from work to resolve Cayden’s childcare situation. (9 R.R. 167-
68).
Considering that appellant had previously expressed a desire to kill the
complainant in order to take his son to live with his parents, that he had previously
choked the complainant, and that he had arranged to take off from work immediately
following the murder, a reasonable factfinder could have found that appellant
anticipated his actions. “Anticipation of an event and preparation of a response
indicates a defendant had time to deliberate over an action and did not act under the
immediate influence of sudden passion.” Moncivais, 425 S.W.3d at 407. As such, the
evidence is sufficient to support the jury’s rejection of appellant’s claim that he was
acting under the influence of sudden passion.
III. Appellant did not establish the issue of sudden passion as a matter of law.
Furthermore, the only evidence of sudden passion is the appellant’s own
statements. Moreover, appellant admitted that he had initially lied about the
circumstances surrounding the complainant’s death. As the sole judge of the
credibility of the evidence, the jury was entitled to disbelieve appellant’s version of
events. See Smith v. State, 355 S.W.3d 138, 149 (Tex. App.--Houston [1st Dist.] 2011,
pet. ref ’d); Bradshaw v. State, 244 S.W.3d 490, 503 (Tex. App.--Texarkana 2007, pet.
ref ’d). Therefore, appellant has not established as a matter of law that he was acting
under the influence of sudden passion. Accordingly, appellant’s first point of error
should be overruled.
13
REPLY TO APPELLANT’S SECOND POINT OF ERROR
Appellant further argues that the trial court erred in admitting extraneous
offense testimony from State’s witness Eric Johnson that appellant had previously
threatened to kill the complainant. Appellant’s trial counsel objected that the State
failed to provide timely notice of is intent to introduce the evidence in accordance
with Rule of Evidence 404(b). (9 R.R. 140). The record reflects that defense counsel
filed a request for notice on April 28, 2014. (C.R. 54-55). Voir dire commenced on
May 20, 2014. (2 R.R. 1). The State provided notice of its intent to introduce Eric
Johnson’s testimony in a second amended notice filed on May 23, 2014. (C.R. 248-
49). On May 27, 2014, the jury was sworn and the trial began. (5 R.R. 1). Eric
Johnson testified about the extraneous threats on June 2, 2014. (9 R.R. 1, 141).
I. Standard of review and applicable law.
Rule 404(b) provides that extraneous offense evidence may be admissible in
certain circumstances “provided that upon timely request by the accused in a criminal
case, reasonable notice is given in advance of trial of intent to introduce in the State’s
case-in-chief such evidence other than that arising in the same transaction.” TEX. R.
EVID. 404(b). The purpose of the notice requirement is to adequately apprise the
defense of the extraneous offenses the State intends to introduce at trial and to
prevent unfair prejudice resulting from the introduction of this evidence at trial. Webb
v. State, 36 S.W.3d 164, 176, 178 (Tex. App.--Houston [14th Dist.] 2000, pet. ref ’d).
The trial court’s determination of reasonableness is reviewed for an abuse of
14
discretion. Sebalt v. State, 28 S.W.3d 819, 822 (Tex. App.--Corpus Christi 2000, no
pet.).
II. Service of request for notice.
The State is only required to provide reasonable notice of its intent to
introduce extraneous offense evidence upon timely request by the accused. See TEX.
R. EVID. 404(b). A request for notice may be made by: (1) serving the State with a
request for notice; or (2) filing a discovery motion requesting the court to order such
notice and secure a ruling thereon. See Espinosa v. State, 853 S.W.2d 36, 39-40 (Tex.
Crim. App. 1993) (Baird, J., concurring); Henderson v. State, 29 S.W.3d 616, 625 (Tex.
App.--Houston [1st Dist.] 2000, pet. ref ’d). In this case, appellant’s counsel filed a
written request for 404(b) notice.3 A certificate of service on a written request for
404(b) notice creates a rebuttable presumption that the document was properly
served. Webb, 36 S.W.3d at 177. Here, the request for 404(b) notice filed by appellant
contains no certificate of service reflecting that the State received timely notice of the
request. (C.R. 54-55). The record only reflects that the State filed an original notice
of its intent to introduce extraneous offense evidence on May 8, 2014. (C.R. 57-59).
Even assuming that the State received a timely request, the notice provided by the
State was reasonable under the circumstances.
3
The clerk’s record does not contain a motion for discovery.
15
III. The notice provided by the State was reasonable under the circumstances.
Whether notice is considered “reasonable” depends upon the facts and
circumstances of the case. Webb, 36 S.W.3d at 178. Notice provided at least ten days
before trial is presumed to be reasonable. Scott v. State, 57 S.W.3d 476, 480 (Tex. App.-
-Waco 2001, pet. ref ’d). Conversely, three days’ notice over a weekend is generally
considered to be presumptively unreasonable. See Hernandez v. State, 914 S.W.2d 226,
234 (Tex. App.--Waco 1996, no pet.) (holding that three-day notice given over the
weekend was unreasonable when the request for notice had been on file for ten
months);4 but see Sebalt, 28 S.W.3d at 821-22 (noting that there is no authority for the
proposition that notice given the Friday preceding a Monday trial is per se
unreasonable);
In the instant case, four days’ notice was provided over a weekend. However,
there is no indication from the record that the State was attempting to ambush the
defense with the extraneous offense evidence. According to the prosecutor, the State
learned about appellant’s extraneous threats to kill the complainant after speaking with
appellant’s boss, Charles Swihart. (9 R.R. 145-46). This conversation occurred on
Friday, May 23, 2012, and notice was provided to the defense that same day. (9 R.R.
145-46).
4
As noted supra, the record does not reveal the actual date that the State was served with the request
for notice. Even assuming the State was served with the request on the same date it was filed, less
than a month transpired before the State provided notice of its intent to introduce Eric Johnson’s
testimony.
16
Considering that the purpose of the notice requirement is to prevent unfair
surprise to the defense, it was not unreasonable for the State to immediately provide
notice upon discovery of the extraneous offense evidence. See Owens v. State, 119
S.W.3d 439, 444 (Tex. App.--Tyler 2003, no pet.) (holding that notice provided on the
same day as jury selection was sufficient to prevent trial by ambush because notice
was provided immediately after the extraneous offense evidence was discovered);
Henderson, 29 S.W.3d at 625 (it was not unreasonable for the State to provide notice of
its intent to introduce extraneous offense evidence eight days before the witness
testified because notice was given as soon as the State learned of the extraneous
offense evidence).
Moreover, no argument has been raised, either at trial or on appeal, that the
lack of advance notice affected the defense’s ability to cross-examine the witness
about the extraneous threats. To the contrary, the record reflects that the witness was
extensively cross-examined by defense counsel concerning the specifics of the
extraneous threats made by appellant. See generally (9 R.R. 170-183). Lack of surprise
is an important consideration is determining the reasonableness of the notice. See
Webb, 36 S.W.3d at 178. In the instant case, the defense received notice of the
extraneous offense evidence eleven days before the testimony was actually introduced.
Therefore, the trial court did not abuse its discretion in finding that the notice
provided by the State was reasonable for the purposes of Rule 404(b). See, e.g., Owens,
119 S.W.3d at 444 (emphasizing that the extraneous offense evidence was not
17
presented to the jury until ten days after the defense had received notice); Self v. State,
860 S.W.2d 261, 264 (Tex. App.--Fort Worth 1993, pet. ref ’d) (holding that five days’
advance notice was reasonable because the defense was able to cross-examine the
witness about the extraneous offense, and the defense was not surprised by the
extraneous offense testimony).
IV. Appellant was not harmed by the lack of notice.
In assessing harm from a trial court’s error in admitting extraneous offense
evidence without reasonable notice, the reviewing court applies a Rule 44.2(b) analysis.
See Allen v. State, 202 S.W.3d 364, 369 (Tex. App.--Fort Worth 2006, pet. ref ’d);
Hernandez, 176 S.W.3d at 825. Accordingly, any error in the trial court’s admission of
extraneous offense evidence must be disregarded unless if affected appellant’s
substantial rights. See TEX. R. APP. P. 44.2(b). In assessing whether the error had a
substantial influence on the verdict, the reviewing court examines the record as a
whole. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); Allen, 202 S.W.3d
at 369.
The improper introduction of extraneous offense evidence is harmless unless:
(1) it substantially influenced the jury’s verdict; and (2) the defendant was surprised by
the evidence. Allen, 202 S.W.3d at 369. “A defendant may demonstrate surprise by
showing how his defense strategy might have been different had the State explicitly
notified him that it intended to offer the extraneous-offense evidence.” Id.
18
As noted previously, appellant does not contend that the lack of notice
negatively affected the defense’s cross-examination of the witness. Instead, appellant’s
general assertion of harm consists of a single sentence: “Had this been known, it
surely would have been a different voir dire.” (Appellant’s Brief p. 13). Appellant
fails to offer any explanation as to how the defensive strategy utilized during voir dire
would have changed given prior notice of the State’s intent to introduce testimony
regarding appellant’s prior threats to kill the complainant. Absent any meaningful
argument from appellant demonstrating the prejudicial impact of the lack of notice,
any error in the admission of the extraneous offense evidence is harmless.
REPLY TO APPELLANT’S THIRD POINT OF ERROR
In his final point of error, appellant asserts that the trial court erred in refusing
to submit a lesser included offense instruction on criminally negligent homicide. The
record reflects that the trial court granted appellant’s request to charge the jury on the
lesser included offense of manslaughter, but denied appellant’s request to charge the
jury on the lesser included offense of criminally negligent homicide. (11 R.R. 14-16;
C.R. 270).
I. There is no evidence that would permit the jury rationally to determine that appellant was guilty
only of the lesser offense of criminally negligent homicide.
An accused is entitled to a jury charge instruction on a lesser offense if: (1) the
lesser offense is a lesser included offense under Article 37.09 of the Texas Code of
Criminal Procedure; and (2) there is some evidence that would permit the jury
19
rationally to find that the defendant is guilty only of the lesser offense. Stadt v. State,
182 S.W.3d 360, 363 (Tex. Crim. App. 2005); Rousseau v. State, 855 S.W.2d 666, 672
(Tex. Crim. App. 1993). “The credibility of the evidence and whether it is
controverted or conflicts with other evidence may not be considered in determining
whether such a charge should be given.” Thomas v. State, 699 S.W.2d 845, 849 (Tex.
Crim. App. 1985).
Criminally negligent homicide is a lesser included offense of murder. Thomas,
699 S.W.2d at 847; Jackson v. State, 248 S.W.3d 369, 371 (Tex. App.--Houston [1st Dist.]
2007, pet. ref ’d). A person commits criminally negligent homicide if he causes the
death of an individual by criminal negligence. TEX. PENAL CODE ANN. § 19.05(a)
(West 2013). Criminal negligence is defined as follows:
A person acts with criminal negligence, or is criminally negligent, with
respect to circumstances surrounding his conduct or the result of his
conduct when he ought to be aware of a substantial and unjustifiable
risk that the circumstances exist or the result will occur. The risk must
be of such a nature and degree that the failure to perceive it constitutes a
gross deviation from the standard of care that an ordinary person would
exercise under all the circumstances as viewed from the actor’s
standpoint.
TEX. PENAL CODE ANN. § 6.03(d) (West 2013).
The fact that a defendant may not have intended the result does not necessarily
mean he is entitled to a charge on criminal negligence. Trujillo v. State, 227 S.W.3d 164,
168 (Tex. App.--Houston [1st Dist.] 2006, pet. ref ’d). “The key to criminal negligence
is the failure of the actor to perceive the risk created by his conduct.” Jackson, 248
20
S.W.3d at 371. The record must contain evidence reflecting that the defendant was
unaware of the risk. Id. at 371-72.
Appellant contends that the trial court erred in refusing to submit an
instruction on the lesser offense of criminally negligent homicide because there was
evidence that he accidentally fell on the complainant, breaking her neck. See
(Appellant’s Brief p. 15). This evidence was introduced in the form of expert
testimony from John Laughlin, a forensic engineer, that the complainant’s injuries
were consistent with appellant grabbing her neck, falling backwards over the bed, and
bearing the force of his body weight down on her neck. (10 R.R. 79-80).
This evidence raises a defensive theory that the complainant’s death was
accidental; however, it does not support appellant’s claim that the trial court should
have submitted a jury instruction on criminally negligent homicide. The indictment
charging appellant with murder alleges that he caused the complainant’s death by
“placing his hands around the complainant’s neck and squeezing.” (C.R. 31). In
accordance with the indictment, the charge authorized the jury to convict appellant of
murder if it found that he intentionally or knowingly caused the complainant’s death
by placing his hands around her neck and squeezing. (C.R. 268). The charge also
permitted the jury to convict appellant of the lesser included offense of manslaughter
if it determined that he recklessly caused the death of the complainant by placing his
hands around her neck and squeezing. (C.R. 270). Similarly, appellant’s proposed jury
instruction would have allowed the jury to convict him of the lesser included offense
21
of criminally negligent homicide if it found that appellant negligently caused the
complainant’s death “by placing his hands around her neck and squeezing.” (C.R.
265).
The fact that the defense presented some evidence supporting an alternate
theory for the cause of the complainant’s death has no bearing on whether appellant
negligently squeezed the complainant’s neck. In fact, the defense expert’s testimony
that there was no evidence of squeezing around the complainant’s neck refutes, rather
than supports, appellant’s proposed instruction allowing the jury to find that he
negligently strangled the complainant to death.5 (10 R.R. 80).
Appellant does not cite to any other evidence supporting the proposed
instruction, nor does the record contain any evidence reflecting that appellant was
affirmatively unaware of the substantial and unjustifiable risk of death that could
result from squeezing the complainant’s neck. To the contrary, appellant’s statements
to police indicate that he grabbed the complainant’s neck and choked her for at least a
minute and a half or two minutes. (15 R.R. SX 7). The medical examiner testified
that appellant’s confession was consistent with the results of the autopsy. (8 R.R.
169). Moreover, appellant applied enough pressure to the complainant’s neck to
fracture her hyoid bone and cricoid cartilage.
5
Even if the jury had believed the defensive theory of an accidental fall, it would not have been able
to convict appellant of criminally negligent homicide under the language of appellant’s proposed
instruction; its only option would have been an acquittal.
22
In addition, the State presented testimony from appellant’s co-worker that
appellant had previously choked the complainant for eight seconds. (9 R.R. 114-15).
Appellant also admitted to the police that he had previously grabbed the complainant
by the neck, tackled her, and choked her until she said she could not breathe. (15 R.R.
SX 7). Thus, the record reflects that appellant was aware of the risk of asphyxiation
created by squeezing the complainant’s neck. “It is common knowledge that people
can die by strangulation, even inadvertently.” Juarez v. State, 409 S.W.3d 156, 163 (Tex.
App.--Houston [1st Dist.] 2013, pet. ref ’d). As such, the evidence does not reflect
that appellant failed to perceive the risk that his conduct could result in serious bodily
injury or death.
II. Any error in the trial court’s failure to submit a lesser included offense instruction on criminally
negligent homicide was harmless.
The failure to properly instruct the jury on a lesser included offense generally
results in reversible error because the jury is denied an opportunity to convict the
defendant of the lesser offense. See Saunders v. State, 913 S.W.2d 564, 571 (Tex. Crim.
App. 1995); Levan v. State, 93 S.W.3d 581, 585 (Tex. App.--Eastland 2002, pet. ref ’d).
However, this error may be harmless if the jury is presented with the option of
convicting the defendant of some other lesser included offense raised by the evidence
and the jury declines to do so. See Levan, 93 S.W.3d at 586.
In this case, the jury was instructed on the lesser included offense of
manslaughter. The culpable mental states for manslaughter and criminally negligent
23
homicide are similar; both involve a risk of death created by the defendant. Id. at 586.
A defendant is guilty of manslaughter if he is aware of the risk created by his
conduct, but consciously disregards that risk. Id. If the defendant is not aware of the
risk created by his conduct, he is guilty of criminally negligent homicide. Id.
Here, the jury was presented with the option to convict appellant of the
intervening lesser included offense of manslaughter if it found that he consciously
disregarded the risk created by his conduct. The jury chose to reject this option in
favor of finding that appellant intentionally and knowingly caused the complainant’s
death by placing his hands around her neck and squeezing. (C.R. 268). If the jury
had concluded that the complainant’s death was caused by a risk associated with
appellant’s conduct, rather than an intentional murder, it could have convicted
appellant of the lesser included offense of manslaughter. Thus, appellant was not
harmed by the trial court’s failure to instruct the jury on criminally negligent homicide.
See Saunders, 913 S.W.2d at 572 (reasoning that the trial court’s failure to submit an
instruction on a lesser included offense raised by the evidence may be harmless if the
court submits an instruction on another lesser included offense also raised by the
evidence because the jury’s options are not limited to conviction of the greater
offense or acquittal); Levan, 93 S.W.3d at 586-87 (holding that the omission of a lesser
included instruction on criminally negligent homicide was harmless because the jury
rejected the option to find the defendant guilty of the lesser included offense of
manslaughter). Accordingly, appellant’s third point of error should be overruled.
24
CONCLUSION AND PRAYER
It is respectfully submitted that all things are regular and the conviction should
be affirmed.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ Heather A. Hudson
HEATHER A. HUDSON
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar No. 24058991
hudson_heather@dao.hctx.net
curry_alan@dao.hctx.net
CERTIFICATE OF COMPLIANCE
The undersigned attorney certifies that this computer-generated document has
a word count of 6,060 words, based upon the representation provided by the word
processing program that was used to create the document.
/s/ Heather A. Hudson
HEATHER A. HUDSON
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar No. 24058991
25
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been
submitted for service by e-filing to the following address:
Jani Maselli Wood
Assistant Public Defender
1201 Franklin, 13th Floor
Houston, Texas 77002
Tel: (713) 368-0016
Fax: (713) 368-9278
Jani.Maselli@pdo.hctx.net
/s/ Heather A. Hudson
HEATHER A. HUDSON
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar No. 24058991
Date: 3/31/2015
26