Wayne Edgar Edwards v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-328-CR
WAYNE EDGAR EDWARDS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In one point, Appellant Wayne Edgar Edwards appeals his conviction for
murder, contending that the trial court erred by denying his request for jury
instructions on the lesser-included offenses of criminally negligent homicide and
manslaughter. We affirm.
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 See Tex. R. App. P. 47.4.
II. Factual and Procedural Background
When Deborah Edwards returned home from work one evening, she saw
her estranged husband, Edwards, waiting nearby. Deborah stayed inside the
car and called her children, who were inside the house, to tell them to lock the
doors to the house. Edwards then walked up to the driver’s side window and
told her to roll down the window. She refused. He shot her in the face with
a 9-millimeter Tech-9 semi-automatic handgun.
Later that evening, Arlington police arrested Edwards as he was on his
way to turn himself in. Police found a gun inside the trunk of the vehicle he
was in at the time of his arrest. Forensic tests later confirmed that it was the
same gun that killed Deborah.
Edwards was indicted on alternate theories of murder. The first
paragraph alleged that Edwards did “then and there intentionally or knowingly
cause[d] the death of an individual, Deborah Edwards, by shooting Deborah
Edwards with a deadly weapon to wit: a firearm[.]” The second paragraph
alleged that Edwards did “then and there intentionally, with the intent to cause
serious bodily injury to Deborah Edwards, commit an act clearly dangerous to
human life, namely, shoot Deborah Edwards with a deadly weapon to wit: a
firearm, which caused the death of Deborah Edwards[.]”
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Edwards pleaded not guilty. During the trial, Arlington Police Officer Seth
Archer testified to statements Edwards made while being transported to the
Arlington City Jail. Officer Archer testified that Edwards told him, “I had the
gun in my hand, and she wouldn’t roll the window down, and the gun went
bang.” Officer Archer also testified that Edwards said that he had planned to
kill other family members and that he knew that what he did was wrong.
At trial, the State published a video-recording of an interview taken when
Edwards was in custody. During the interview, Edwards said several times that
he had intended to kill his wife. He also stated that he had planned to kill her
mother and sister too.
At the conclusion of the trial, Edwards requested jury instructions for the
lesser-included offenses of criminally negligent homicide and manslaughter. The
trial court denied his request. The court’s charge presented the alternate
theories of murder as authorized by the indictment, and the jury found Edwards
guilty of murder and assessed punishment at ninety-nine years’ confinement
and a $10,000 fine.
III. Discussion
In his sole point, Edwards contends that the trial court erred by refusing
to instruct the jury on the lesser-included offenses of criminally negligent
homicide and manslaughter.
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A. Standard of Review
We use a two-step analysis to determine whether an appellant was
entitled to a lesser-included offense instruction. Hall v. State, 225 S.W.3d
524, 528 (Tex. Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666,
672–73 (Tex. Crim. App.), cert. denied, 510 U.S. 919 (1993). First, the lesser
offense must come within article 37.09 of the code of criminal procedure. Tex.
Code Crim. Proc. Ann. art. 37.09 (Vernon 2006); Moore v. State, 969 S.W.2d
4, 8 (Tex. Crim. App. 1998). “An offense is a lesser included offense if . . . it
differs from the offense charged only in the respect that a less culpable mental
state suffices to establish its commission.” Tex. Code Crim. Proc. Ann. art.
37.09(3).
Second, some evidence must exist in the record that would permit a jury
to rationally find that if the appellant is guilty, he is guilty only of the lesser
offense. Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741
(Tex. Crim. App. 2005); Rousseau, 855 S.W.2d at 672–73. The evidence
must be evaluated in the context of the entire record. Moore, 969 S.W.2d at
8. There must be some evidence from which a rational jury could acquit the
appellant of the greater offense while convicting him of the lesser-included
offense. Id. The court may not consider whether the evidence is credible,
controverted, or in conflict with other evidence. Id. Anything more than a
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scintilla of evidence may be sufficient to entitle a defendant to a lesser charge.
Hall, 225 S.W.3d at 536. If sufficient evidence of more than one theory of the
greater offense is presented to allow the jury to be charged on alternate
theories, the second prong of the test is satisfied only if there is evidence that,
if believed, refutes or negates every theory that elevates the offense from the
lesser to the greater. Arevalo v. State, 970 S.W.2d 547, 549 (Tex. Crim. App.
1998).
B. Lesser-Included Offenses
Voluntary manslaughter is a lesser-included offense of murder under
article 37.09(3) of the code of criminal procedure. Moore, 969 S.W.2d at 9;
Kennedy v. State, 193 S.W.3d 645, 651 (Tex. App.—Fort Worth 2006, pet.
ref’d). Criminally negligent homicide is also a lesser-included offense of murder,
and it is a lesser-included offense of manslaughter because the two offenses
differ only in that criminally negligent homicide requires a less culpable mental
state. Stadt v. State, 182 S.W.3d 360, 364 (Tex. Crim. App. 2005); Lugo v.
State, 667 S.W.2d 144, 147 (Tex. Crim. App. 1984).
1. Mens Rea
To be found guilty of murder, an individual must intentionally or
knowingly cause the death of another or intend to cause serious bodily injury.
Tex. Penal Code Ann. § 19.02(b)(1)–(2) (Vernon 2003). A person acts
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intentionally, or with intent, with respect to the nature of his conduct or to a
result of his conduct when it is his conscious objective or desire to engage in
the conduct or cause the result. Id. § 6.03(a). He acts knowingly, or with
knowledge, with respect to a result of his conduct when he is aware that his
conduct is reasonably certain to cause the result. Id. § 6.03(b).
In contrast, to be found guilty of manslaughter, an individual must
recklessly cause the death of an individual. Id. § 19.04(a). A person acts
recklessly with respect to circumstances surrounding his conduct or the result
of his conduct when he is aware of but consciously disregards a substantial and
unjustifiable risk that the circumstances exist or the result will occur. Id.
§ 6.03(c). For a defendant to be entitled to a jury charge on manslaughter,
there must be some evidence that the defendant did not intend to kill or cause
serious bodily injury and that the defendant acted recklessly while ignoring a
known risk. Kennedy, 193 S.W.3d at 651. Courts have typically found that
a manslaughter instruction is required when there is some evidence that a gun
discharged accidentally or that the defendant only intended to frighten the
victim. Arnold v. State, 234 S.W.3d 664, 672 (Tex. App.—Houston [14th
Dist.] 2007, no pet.). However, a defendant’s denial that he intended to kill the
victim does not, of itself, raise the issue of manslaughter. Id.
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To be found guilty of criminally negligent homicide, an individual must
cause the death of an individual by criminal negligence. Tex. Penal Code Ann.
§ 19.05(a). A person acts with criminal negligence 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. Id. § 6.03(d). The key to criminal negligence is
the actor’s failure to perceive the risk created by his conduct. Trujillo v. State,
227 S.W.3d 164, 168 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). If the
evidence shows that the actor’s awareness was such that he perceived the risk
he created, he is not entitled to a charge of criminally negligent homicide. Id.
2. Analysis
The record reflects that Edwards was not entitled to a lesser-included
offense instruction on either manslaughter or criminally negligent homicide.
With regard to manslaughter, Edwards argues that the evidence
establishes that the gun discharged accidently and that Edwards wanted only
to speak with his wife and scare her. 2 Specifically, he refers to statements he
2
 In support of this argument, Edwards states that the State addressed
the theory that the shooting was an accident during closing arguments.
However, jury arguments are not evidence; therefore, we will not consider them
in our analysis. See Hutch v. State, 922 S.W.2d 166, 173 (Tex. Crim. App.
1996).
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made to Officer Archer, statements he made during his videotaped interview,
and testimony by the State’s firearm expert in support of his contentions.
However, we must evaluate this evidence in the context of the entire record.
See Moore, 969 S.W.2d at 8.
Edwards directs us to statements he gave to Officer Archer after being
arrested as support for his argument. While being taken to the Arlington City
Jail, Edwards told Officer Archer that he just wanted to talk to Deborah and he
“had the gun in [his] hand, and she wouldn’t roll the window down, and the
gun went bang.” Edwards argues that this statement creates the inference that
the gun discharged accidently, that he did not intend to murder Deborah, and
that his intention was to speak with her. However, the simple statement “the
gun went bang” says nothing about whether Edwards intentionally pulled the
trigger or whether it discharged accidently. See Arnold, 234 S.W.3d at
671–72 (holding that defendant’s testimony that “the door flung open and I
felt-and the gun went off” did not create the inference that the gun accidentally
discharged).
Edwards also points to his statement during his custodial interview that
he did not intend to hurt his wife. This statement, however, “cannot be
plucked out of the record and examined in a vacuum.” Id. at 671–72 (quoting
Godsey v. State, 719 S.W.2d 578, 584 (Tex. Crim. App. 1986)). And any
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inference that Edwards unintentionally killed his wife is negated by the context
in which he made the statement in light of the rest of his interview. While
describing his plan to put his wife in the trunk of his car and torture her,
Edwards told the detective, “I never did intend to hurt my poor sweet wife, you
hear. But she had gone too far.” Other statements made in the interview make
it clear that Edwards fully intended to shoot his wife:
• “I hurt somebody, . . . that’s not right, but it had to be done. . . . I had
to stop my wife from doing what she was doing . . . .”
• “I intended to take her and torture her. . . . I intended to go to her
mother’s house and kill her sister who tortured me—they hurt me for
years—and her mother, eighty years old, oh, I was going to blow her
brains out for what she done to me.”
• “I said, ‘Roll the window all the way down.’ That was a [sic] order. If
she had of [sic] rolled that window down, she would be alive today.”
• “She didn’t open the window, and I said, ‘Well, you just want to die right
here.’ Pow! The thing went off.”
• “But I did intend to kill her. I didn’t . . . go not to kill her.”
• “I intended to kill her.”
• “I definitely had to kill her for [allegedly sexually abusing their daughters]
. . . she got away with it all this time.” 3
3
 Officer Archer testified that Edwards said he believed his wife and
other family members had been sexually abusing their children for many years.
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Finally, Edwards points to testimony of the State’s firearm expert, Jamie
Becker, who testified that the gun’s firing pin was defective so that sometimes
the gun fired as a semi-automatic weapon and sometimes as a fully automatic
weapon. However, Becker’s testimony also establishes that whether the gun
was fired in semi-automatic mode or in fully automatic mode, the trigger still
had to be pulled with five to seven pounds of pressure. Nothing in this
testimony indicates that Edwards did not intentionally kill his wife or that he
acted with conscious disregard of a known risk. Rather, this evidence indicates
that the trigger had to be pulled for the gun to discharge.
In sum, the evidence does not raise the issue of manslaughter. The
evidence shows that Edwards had a plan to kidnap and torture his wife and
then to kill his mother-in-law and sister-in-law. In furtherance of his plan,
Edwards went to his storage unit, retrieved his gun, went to his wife’s house,
and waited for her to get home. When his wife arrived home, Edwards walked
up to her car and told her to roll down the window. When she refused to do
so, he became angry, pointed the gun at her head, and pulled the trigger with
five to seven pounds of pressure. He then fled the scene of the crime. There
is no evidence of a lack of intent or that Edwards acted recklessly while
Arlington Police Officer Dara DeWall testified that Edwards had made these
allegations against his wife in 2001 and that the detective on the case
concluded the allegations were unfounded because of a lack of evidence.
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ignoring a known risk; rather the evidence shows a deliberate and voluntary act.
In light of the entire record, Edwards’s isolated statements do not constitute
evidence upon which a jury could rationally find that Edwards was guilty only
of manslaughter. See Arnold, 234 S.W.3d at 671–73 (holding that defendant’s
isolated statements that he was not aiming at the victim and did not intend to
kill him did not raise the issue of manslaughter where defendant also testified
that he meant to shoot the victim); Munoz v. State, 932 S.W.2d 242, 245–46
(Tex. App.—Texarkana 1996, no pet.) (holding that defendant’s testimony that
he did not remember shooting the victim but did not intend to kill him did not
raise the issue of manslaughter); Johnson v. State, 915 S.W.2d 653, 659 (Tex.
App.—Houston [14th Dist.] 1996, pet. ref’d) (holding that defendant’s
statement that he did not intend to kill the victim did not raise the issue of
manslaughter when the defendant also testified that he shot the victim in self-
defense). We overrule this portion of Edwards’s sole point.
The same evidence shows that Edwards was not entitled to an instruction
on criminally negligent homicide, because it conclusively shows that he clearly
perceived the risk posed by pointing the handgun at his wife. See Trujillo, 227
S.W.3d at 168. That is, Edwards owned the gun, indicating familiarity with it.
He knew the gun was loaded. He retrieved it as part of a plan to kidnap and
torture his wife. He used the gun to try to coerce his wife into rolling down the
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window. Because there is no evidence in the record to show that Edwards
failed to perceive the risk created by his conduct, and all the evidence indicates
that he did perceive that risk, the trial court did not err by refusing to give an
instruction on criminally negligent homicide. See Thomas v. State, 699 S.W.2d
845, 850 (Tex. Crim. App. 1985) (holding that evidence that a defendant
knows a gun is loaded, that he is familiar with guns and their potential for
injury, and that he points a gun at another indicates that he is aware of the risk
created by that conduct and disregards the risk); Jackson v. State, 248 S.W.3d
369, 373 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (holding that using
a gun appellant knew to be loaded as a means to coerce an individual into
paying back money indicated that appellant perceived the risk posed by drawing
the weapon and chose to disregard that risk); Trujillo, 227 S.W.3d at 168
(holding that brandishing a loaded gun to frighten people indicates awareness
of a risk posed by a loaded gun). We overrule the remainder of Edwards’s sole
point.
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IV. Conclusion
Having overruled Edwards’s sole point of error, we affirm the trial court’s
judgment.
BOB MCCOY
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 7, 2010
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