Romelle Monte Hawkins v. State

Opinion issued December 4, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00145-CR
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ROMELLE MONTE HAWKINS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Case No. 1402764
MEMORANDUM OPINION
Appellant Romelle Monte Hawkins pleaded not guilty to the charged offense
of murder. 1 A jury found Appellant guilty of the lesser-included offense of
1
See TEX. PENAL CODE ANN. § 19.02 (Vernon 2011).
manslaughter2 and assessed Appellant’s punishment at 23 years in prison. In one
issue on appeal, Appellant asserts that the trial court erred by refusing to instruct
the jury on the lesser-included offense of criminally negligent homicide.
We affirm.
Background
On April 8, 2012, at around 11:00 p.m., Fallon Kiser went to a bar to meet
friends, including her date, Jerold Griffin, and her best friend, Katherine
Brownlow-Stewart, the complainant in this case. Appellant was also at the bar.
He was Katherine’s date.
The group stayed at the bar for a while and then went to a second club.
Fallon and Katherine were at the second club when, around 3:00 a.m., Jerold
decided that he wanted to leave. Although she wanted to stay at the club, Fallon
decided to leave with her date.
Fallon and Jerold rode in the backseat of Jerold’s vehicle, a white SUV.
Jerold’s cousin, Devline Smallwood, was driving, and another acquaintance,
Cedric Jackson, rode in the front passenger seat. During the ride, Fallon and Jerold
started to argue. They both had been drinking alcohol that night, and Jerold was
drunk.
2
See id. § 19.04 (Vernon 2011).
2
Fallon got out of the vehicle and began walking along the road, which was in
an isolated area. Devline drove the SUV slowly along the road to keep pace with
Fallon. The men encouraged Fallon to get back in the vehicle, but she would not
comply. Jerold got out of the SUV and began walking with Fallon trying to
convince her to get back in the vehicle. The two continued to argue as they
walked.
Fallon called Katherine to come pick her up. Katherine arrived shortly after
Fallon called her. Katherine was driving her black SUV. Appellant was in the
front passenger seat.
Fallon got into the backseat of Katherine’s vehicle. Katherine and Jerold
began arguing, and Jerold walked toward Katherine’s SUV in what Fallon later
described as an aggressive manner. Fallon saw Katherine reach under her driver’s
seat to grab a gun, which Fallon knew Katherine kept in her vehicle, but Katherine
could not locate the weapon.
As Jerold approached her SUV, Katherine opened her door, hitting Jerold in
the face. Katherine then got out of the vehicle and began hitting Jerold. Fallon
also got out of the SUV and went to assist Katherine in the physical altercation
with Jerold. The two women engaged in a physical fight with Jerold for about 10
to 15 minutes.
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The women were winning the fight when Devline approached to break it up.
He grabbed Jerold around the waist and tried to pull him away.
At this point, the group was near the driver’s side of Katherine’s SUV. The
driver’s side door and window were open. Appellant had never gotten out of
Katherine’s vehicle and remained seated in the front passenger’s seat.
Without warning, the group heard a gunshot. It was Appellant; he had fired
a revolver from inside Katherine’s SUV. Katherine told Fallon to “get down.”
The two women ducked down by the vehicle. Jerold and Devline ran away.
Cedric, who was further away, hid in the bushes. Ten to fifteen seconds passed.
Appellant fired the gun a second time. That shot hit Jerold in the arm as he ran
away. Some time passed, and Katherine and Fallon thought it was safe. Katherine
stood up and went to get in the driver’s side of her vehicle. About five seconds
after she stood up, Appellant fired the gun a third time, shooting Katherine in the
head. Katherine fell into Fallon’s arms, and they both fell to the ground.
Fallon looked at Appellant and saw him holding the gun. He was shaking.
Fallon had heard Appellant say, “What the fuck happened?”
Fallon begged Appellant to help Katherine. Instead, Appellant got into the
driver’s seat of Katherine’s vehicle and drove off. The police and paramedics were
called to the scene. However, Katherine died from the gunshot wound to her head.
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Fallon told the police that Appellant had shot Katherine and Jerold. Cedric
identified Appellant as the person he saw driving away from the scene.
Later that day, Appellant went to a police station to inquire about Katherine.
Appellant was taken into custody, and he agreed to be interviewed. During the
video-taped interview, Appellant denied being at the scene and firing the gun.
Appellant was indicted for the offense of murder. During trial, Fallon
testified in detail to the events occurring before, during, and after the shooting.
She stated that Appellant was the person who shot Katherine. Fallon testified that,
when Katherine was shot, she had seen Appellant aiming the gun at Katherine’s
head. She stated that the shots had not been fired rapidly; rather, appreciable time
had elapsed between each of the three shots. Fallon testified that Katherine had
been standing upright for five seconds trying to get into her vehicle when
Appellant shot her.
Cedric also testified. He stated that, although he did not see who had fired
the shots, he saw Appellant drive away after the shooting. The investigating police
officers testified at trial, and the video-taped interview with Appellant was
admitted into evidence. The State further showed, through forensic evidence, that
Appellant had tested positive for gun residue on both his hands and his clothing.
The defense did not present any evidence.
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At the charge conference, the defense requested that the jury be instructed on
the lesser-included offenses of manslaughter and criminally negligent homicide.
The trial court granted the request to instruct the jury on the lesser-included offense
of manslaughter, but denied the request to instruct the jury on the offense of
criminally negligent homicide.
When it returned its verdict, the jury found Appellant guilty of the offense of
manslaughter. Appellant pleaded true to an enhancement allegation found in the
indictment, indicating that he had previously been convicted of the felony offense
of felon in possession of a firearm. The jury assessed Appellant’s punishment at
23 years in prison.
This appeal followed. In one issue, Appellant asserts that the trial court
erred in denying his request to instruct the jury on the lesser-included offense of
criminally negligent homicide.
Lesser-Included Offense Instruction
A. Standard of Review
We apply a two-step test to determine whether appellant was entitled to an
instruction on a lesser-included offense. Cavazos v. State, 382 S.W.3d 377, 382
(Tex. Crim. App. 2012); Sweed v. State, 351 S.W.3d 63, 67 (Tex. Crim. App.
2011); Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006). We first
determine whether criminally negligent homicide is a lesser-included offense of
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murder by comparing the statutory elements of the greater offense and any
descriptive averments in the indictment with the statutory elements of the potential
lesser-included offense. Sweed, 351 S.W.3d at 68; Hall v. State, 225 S.W.3d 524,
535–36 (Tex. Crim. App. 2007). This inquiry is a question of law. Hall, 225
S.W.3d at 535.
If this threshold is met, the second step then requires that we determine
whether some evidence in the record would have permitted the jury to rationally
find that, if he was guilty, the defendant was guilty only of the lesser-included
offense. Id. at 536; Guzman, 188 S.W.3d at 188–89; Rousseau v. State, 855
S.W.2d 666, 673 (Tex. Crim. App. 1993). Anything more than a scintilla of
evidence may be sufficient to entitle a defendant to a lesser charge, but the
evidence must establish the lesser-included offense as a valid, rational alternative
to the charged offense. Hall, 225 S.W.3d at 536; Forest v. State, 989 S.W.2d 365,
367 (Tex. Crim. App. 1999). Although the threshold showing required for an
instruction on a lesser-included offense is low, it is not enough that the jury may
disbelieve crucial evidence pertaining to the greater offense; there must be some
evidence directly germane to the lesser-included offense for the finder of fact to
consider before a lesser-included offense instruction is warranted. Bignall v. State,
887 S.W.2d 21, 24 (Tex. Crim. App. 1994).
B. Analysis
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Here, the State does not dispute that criminally negligent homicide is a
lesser-included offense of murder. See Saunders v. State, 840 S.W.2d 390, 391
(Tex. Crim. App. 1992) (holding that negligent homicide is a lesser-included
offense of murder). Thus, as briefed, the dispute in this case centers on whether
there is some evidence from which the jury could have rationally found that, if
Appellant was guilty, he was guilty only of the lesser offense of criminally
negligent homicide. At this step of the analysis, “the evidence must establish the
lesser-included offense as a valid, rational alternative to the charged offense.”
Hall, 225 S.W.3d at 536.
A person commits the offense of murder if 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 ANN. § 19.02(b)(1), (2) (Vernon 2011). A person
commits manslaughter if he recklessly causes the death of another. See id. § 19.04
(Vernon 2011). A person commits the offense of criminally negligent homicide if
he causes the death of an individual by criminal negligence. Id. § 19.05(a)
(Vernon 2011).
The essential difference between murder, manslaughter, and criminally
negligent homicide is the culpable mental state required to establish each offense.
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See Thomas v. State, 699 S.W.2d 845, 849 (Tex. Crim. App. 1985). The Penal
Code defines the relevant culpable mental states as follows:
(a) A person acts intentionally, or with intent, with respect to . . . his
conduct when it is his conscious objective or desire to . . . cause the
result.
(b) A person 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.
(c) A person acts recklessly, or is reckless, with respect to . . . the
result of his conduct when he is aware of but consciously disregards a
substantial and unjustifiable risk that the . . . result will occur. The risk
must be of such a nature and degree that its disregard 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.
(d) A person acts with criminal negligence, or is criminally negligent,
with respect to . . . the result of his conduct when he ought to be aware
of a substantial and unjustifiable risk . . . 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(a)–(d) (Vernon 2011).
“The key to criminal negligence is not the actor’s being aware of a
substantial risk and disregarding it, but rather it is the failure of the actor to
perceive the risk at all” created by his conduct. Montgomery v. State, 369 S.W.3d
188, 193 (Tex. Crim. App. 2012); Trujillo v. State, 227 S.W.3d 164, 168 (Tex.
App.—Houston [1st Dist.] 2006, pet. ref’d). Evidence showing that a defendant
9
did not intend the result does not automatically entitle him to a charge on criminal
negligence. See Trujillo, 227 S.W.3d at 168. “Rather, the difference between
criminally negligent homicide and manslaughter is the culpable mental state of
criminal negligence for the former and recklessness for the latter.” Id. A
defendant is not entitled to a charge of criminally negligent homicide if the
evidence shows that the defendant’s awareness is such that he perceived the risk
his conduct created. Id.
In support of his assertion that the jury should have been instructed on
criminally negligent homicide, Appellant asserts as follows in his appellate brief:
There was substantial evidence that the shooting and killing of the
complainant was unintentional and that the Appellant was trying to
break up the melee that had started in front of him. Ms. Fallon
testified that [Jerold] was getting more deadly and more aggressive
and she would have pulled a gun on him that night if she had one.
The fight had already lasted 10-15 minutes. Ms. Fallon admitted
under cross examination that there was no friction between the
complainant and the Appellant and that the Appellant would “not hurt
someone he was with.” She further admitted that when the
complainant was shot and killed, the Appellant said, “What the fuck
happened” and was shaking. . . . There was further evidence that
[Appellant’s] eyesight was not good and the lighting conditions were
only good.
(Record citations omitted.)
While it may show that he did not intend to kill Katherine, the evidence cited
by Appellant does not necessarily show that he failed to perceive the risk of
pointing and firing a gun in the direction of four people, standing nearby him. See
10
Trujillo v. State, 227 S.W.3d at 168. This is particularly true when the cited
evidence is viewed in the context of the other evidence in the record. See
Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (concluding that
appellant’s statement he did not intend to hit victim not evidence he is guilty only
of lesser included offense, particularly given the other evidence in the record that
he intended to kill victim).
The evidence showed that Appellant fired the gun three times with a
significant pause between each shot. The second shot hit Jerold in the arm. A
sufficient amount of time passed, which led Katherine and Fallon to think that it
was safe to stand up. After Katherine stood up, another five seconds passed.
Appellant then shot her as she tried to get into her own vehicle in which Appellant
sat. Fallon testified that she saw Appellant aim the gun at Katherine’s head.
Even if the evidence could be viewed (1) as showing that Appellant was
trying to break up the fight between the two women and Jerold by frightening the
group or (2) as showing that Appellant was shooting at Jerold to protect the
women, such evidence does not raise a scintilla of evidence that Appellant did not
perceive the risk his conduct created. To the contrary, viewing the evidence in
such a manner would show that Appellant disregarded the risk, knew the risk of
firing a gun, or was choosing to exploit that risk. See Trujillo, 227 S.W.3d at 168
(concluding that brandishing a loaded gun to frighten people indicates awareness
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of a risk posed by a loaded gun); see also Jackson v. State, 248 S.W.3d 369, 372
(Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (holding that drawing handgun
from pocket in response to a threat does not alone raise an inference that appellant
was unaware of the risk posed by that conduct; instead, it indicates that the actor
was aware of the risk posed by the weapon and was choosing to exploit that risk).
Because Appellant did not present evidence showing that he failed to
perceive the risk created by his conduct, and the evidence shows that he did
perceive and disregard that risk, the trial court did not err by denying Appellant’s
request to instruct the jury on the offense of criminally negligent homicide. See
Trujillo, 227 S.W.3d at 168–69. We overrule Appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Keyes, Higley, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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