Mark Oberlander v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00395-CR
MARK OBERLANDER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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A jury convicted Appellant Mark Oberlander of deadly conduct but
acquitted him of manslaughter and criminally negligent homicide. 2 He brings four
points, challenging the legal and factual sufficiency of the evidence to support his
conviction and contending that the trial court reversibly erred by not including jury
instructions on concurrent causation and voluntary act. Because we hold that the
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. §§ 19.04, 19.05, 22.05(b), (e) (Vernon 2003).
evidence is sufficient and that the trial court committed no reversible error, we
affirm the trial court’s judgment.
I. Summary of Facts
Appellant and David Kwilos lived in a house in Arlington, Texas, with its
owner, Matt Rabun. At trial, Kwilos’s friend David Campbell testified that he
regularly spent time at the house and that on September 28, 2008, he arrived at
the house around 12:30 or 1:00 a.m. He got a beer and went to Kwilos’s room
and woke him up. The two men talked while Campbell fixed himself something
to eat. Campbell and Kwilos became aware that someone else was present but
did not see anyone; eventually Campbell noticed Appellant ―peering around the
corner, almost like he didn’t know [that Campbell] was there.‖ Campbell greeted
Appellant, who then returned to his bedroom. Kwilos became agitated and went
into Appellant’s bedroom. Campbell could tell that they were arguing, and a few
minutes later, Kwilos came out of Appellant’s room, upset. From what Kwilos
said to Campbell, Campbell concluded that Appellant had put a gun to Kwilos’s
head.
Kwilos went back into Appellant’s room and came out again about ten
seconds later, carrying a pool stick by its smaller end. He picked up Campbell’s
keys from the sofa and told Campbell to follow him. Kwilos, with Campbell
following, went to Appellant’s room. From the doorway, Campbell could see
Appellant on his bed. He did not see a gun. Campbell said he was leaving and
2
headed toward the back door. Before he reached the back door, Campbell heard
a shot.
Campbell testified that a few weeks before the shooting, Appellant had a
confrontation with two other men at the house during a poker game. Several
days later, Appellant brought two guns to the house, one that ―looked like an AK-
47‖ and an assault shotgun with a pistol grip. Campbell stated that Appellant
said he had five bullets, ―each one with our names on it.‖ Campbell also testified
that a few days before the shooting, Kwilos and Appellant had had a fist fight
over a knife that the three men had been using to install carpet in the house.
The State introduced a copy of a 911 call from the night of the shooting on
which Appellant and Kwilos can be heard arguing. Kwilos can be heard saying,
―I should have fucked you up so bad for fucking what you did yesterday,‖ to
which Appellant replied, ―I’m about to kill you anyway.‖ A shotgun blast can be
heard on the tape after that. Appellant stayed on the phone until the police
arrived, and on the tape Appellant repeatedly stated that the gun went off when
Kwilos grabbed the gun and pulled it toward him. Appellant made this same
assertion when interviewed by the police after his arrest.
Jamie Becker of the Tarrant County Medical Examiner’s Office testified
that when Kwilos was shot, in her opinion, the end of the barrel was not in
contact with the skin but was closer than six feet away. She could not say
whether Kwilos’s arm had been extended when he was shot; she could only say
that it was not down by his side. Marc Krouse, also from the medical examiner’s
3
office, first characterized the wound as a ―close-range wound from a shotgun‖ but
later characterized it as a ―distant range wound‖ based on the lack of soot or
powder and the fact that the shot had begun to disperse. He later stated that the
wound ―impl[ied] that the muzzle-to-skin distance [was] not really that far [away].‖
Krouse also testified that at the time of his death, Kwilos had benzodiazepine,
Valium, cannabinoids, hydrocodone, methamphetamine, and ecstasy in his
system.
II. Sufficiency of the Evidence
Appellant was charged by indictment with deadly conduct 3 by knowingly
discharging a firearm at or in the direction of Kwilos. Appellant argues in his first
two points that the State was required to prove beyond a reasonable doubt that
he knowingly discharged the weapon and that the State failed to sustain its
burden of proof.
After Appellant submitted his brief, the Texas Court of Criminal Appeals
held that there is no meaningful distinction between the legal sufficiency standard
and the factual sufficiency standard.4 Thus, the Jackson standard, which is
explained below, is the ―only standard that a reviewing court should apply in
3
See Tex. Penal Code Ann. § 22.05(b).
4
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (overruling
Clewis v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App. 1996)).
4
determining whether the evidence is sufficient to support each element of a
criminal offense that the State is required to prove beyond a reasonable doubt.‖5
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the
prosecution to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.6 The jury is the sole
judge of the credibility of the evidence and the weight to be given to each piece
of evidence.7
The sufficiency of the evidence in a criminal case is not determined by a
no-evidence standard.8 Instead, we must look at all the evidence to determine
whether a rational jury could have found that the State proved every element of
the offense of felony deadly conduct.
Lorri Tiner, Kwilos’s sister, testified that he had called her a day or so
before his death and had told her that Appellant had threatened to kill him.
Kwilos asked Tiner to help him leave the home, and she testified that he had
5
Id.
6
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
7
Brooks, 323 S.W.3d at 899.
8
Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989), overruled on
other grounds by Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991),
overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 571 (Tex. Crim.
App. 2000).
5
recently qualified to receive governmental housing assistance. He was to move
into a new home but was killed before he could do so. Her testimony was
confirmed by the 911 recording the jury heard.
Appellant admitted that he was holding the firearm when he told Kwilos
that he was about to kill him and immediately before it discharged, killing Kwilos.
Appellant said that the weapon discharged when Kwilos grabbed the barrel. The
jury, as the trier of fact, was free to determine the credibility of the witnesses and
to evaluate the meaning of the recording they heard. The medical testimony
supports both theories, that of Appellant’s firing the weapon and that of Kwilos’s
grabbing the barrel. The jury obviously believed that Appellant carried out his
intention to kill Kwilos rather than Appellant’s version of the events.
Applying the appropriate standard of review, we hold that the State
sustained its burden of proving each and every element of the offense of deadly
conduct, as alleged in the indictment, beyond a reasonable doubt. We overrule
Appellant’s first two points.
III. Jury Charge
Appellant argues in his third and fourth points that the trial court reversibly
erred by failing to instruct the jury on concurrent cause and voluntary act.9
Appellate review of error in a jury charge involves a two-step process.10 Initially,
9
See Tex. Penal Code Ann. §§ 6.01, 6.04 (Vernon 2003).
10
Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see also
Sakil v. State, 287 S.W.3d 23, 25B26 (Tex. Crim. App. 2009).
6
we must determine whether error occurred. If it did, we must then evaluate
whether sufficient harm resulted from the error to require reversal.11
The trial court has a duty to instruct the jury on the law applicable to the
case regardless of any objection to the charge by Appellant.12 Appellant is
correct that there is evidence of a concurrent cause, based on his contention that
Kwilos grabbed the barrel and pulled the weapon toward him while Appellant’s
finger was on the trigger. Appellant is also correct that the same evidence raises
the issue of voluntary act. Consequently, concurrent causation and voluntariness
were part of the law applicable to the case if instructions on the issues had been
requested,13 and the trial court could properly have instructed the jury on
concurrent causation and voluntariness.
Concurrent causation and voluntariness, however, are defensive issues. 14
―An unrequested defensive issue is not the law applicable to the case.‖15 A trial
court is not required to sua sponte instruct the jury on purely defensive issues
because to require instruction on defensive issues is to intrude on counsel’s trial
11
Abdnor, 871 S.W.2d at 731B32.
12
Taylor v. State, 332 S.W.3d 483, 486 (Tex. Crim. App. 2011).
13
See Tolbert v. State, 306 S.W.3d 776, 779 (Tex. Crim. App. 2010) (citing
Posey v. State, 966 S.W.2d 57, 61 (Tex. Crim. App. 1998)).
14
See Tex. Penal Code Ann. §§ 6.01, 6.04; Rogers v. State, 105 S.W.3d
630, 639 (Tex. Crim. App. 2003); Bell v. State, 169 S.W.3d 384, 394–95 (Tex.
App.—Fort Worth 2005, pet. ref’d).
15
Taylor, 332 S.W.3d at 487.
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strategy.16 Because Appellant did not object to the omissions from the charge or
request the omitted instructions, the trial court did not err by choosing not to
instruct the jury on those issues.17 We overrule Appellant’s third and fourth
points.
IV. Conclusion
Having overruled Appellant’s four points, we affirm the trial court’s
judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 12, 2011
16
Tolbert, 306 S.W.3d at 780 (citing Delgado v. State, 235 S.W.3d 244,
249–50 (Tex. Crim. App. 2007)).
17
See id.
8