Hassan Abdullah v. the State of Texas

Affirmed and Memorandum Opinion filed May 26, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00306-CR
HASSAN ABDULLAH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 461st District Court
Brazoria County, Texas
Trial Court Cause No. 91723-CR
MEMORANDUM OPINION
In this appeal from a conviction for murder, appellant argues in three points
of error that the judgment should be reversed because the evidence is legally
insufficient, because the trial court erroneously denied a motion to suppress, and
because the trial court erroneously submitted its charge to the jury. For the reasons
given below, we overrule all of these points and affirm the trial court’s judgment.
BACKGROUND
The complainant, an eighteen-year-old man, arranged to sell a small amount
of marijuana to a buyer he knew online. The buyer arrived at the complainant’s house
in a car containing two other individuals, including appellant, who was riding in the
front passenger seat. The complainant walked over to the car and approached the
front passenger door, where the window had been rolled down. Soon thereafter, a
physical struggle ensued. The accounts varied as to the cause and scope of the
struggle, but there was no dispute that the struggle ended with the complainant being
shot a single time in the neck.
Appellant and his associates sped away after the shooting, without any
marijuana having changed hands. The complainant remained conscious, and his
siblings, who had witnessed the shooting, rushed to his aid and called for medical
attention. First responders arrived on scene and transported him to the hospital, but
the complainant died as a result of his injuries.
In the days after the shooting, investigators received information that the
buyer was a student at a local high school. Using sources from that high school, the
investigators then developed appellant as a suspect in the shooting and obtained a
warrant for his arrest.
Appellant was eventually arrested in Georgia more than a month after the
shooting. The investigators traveled to Georgia in order to escort him back to Texas
and to interview him as well. While in Georgia, appellant initially agreed to waive
his rights and give a recorded statement. In that statement, appellant completely
denied having any knowledge of the murder. As the investigators pressed further,
appellant requested to speak to an attorney. The investigators terminated the
interview at that point, and then transported appellant to their private aircraft.
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Shortly after landing in Texas, appellant asked to give another statement, even
though an attorney was not present. In this second statement, which was also
recorded, appellant confessed that he had been involved in the shooting. He said that
he did not know the complainant, but that he went to the complainant’s house
because his associates had wanted to purchase marijuana and because he had wanted
“to chill.” Appellant explained that when he and his associates were counting out
money to pay for the marijuana, the complainant noticed that appellant had a gun
and the complainant asked to inspect it. Appellant claimed that he wanted to remove
the clip and disarm the gun first, but before he could do so, the complainant grabbed
the gun, and then the two of them struggled over it. Appellant said that he
accidentally shot the complainant during this struggle.
This recorded statement was published to the jury in appellant’s subsequent
trial, where other evidence controverted appellant’s version of events. The
controverting evidence included electronic records showing that the buyer had
intended to “hit a lick”—i.e., to rob the complainant of his marijuana. The evidence
also included the live testimony of the car’s driver, who said that everybody
(including appellant) had discussed the planned robbery on the drive to the
complainant’s house.
In addition to that evidence, the complainant’s sister, who witnessed the
shooting, suggested that there was never any struggle over a gun, as appellant had
claimed in his recorded statement. According to the sister, the complainant was
grabbed by his jacket, pulled into the car, and then shot.
Appellant did not testify before the jury, nor did he call any witnesses in his
defense, but his counsel argued that the jury should return a verdict of not guilty
because the evidence established that appellant lacked the requisite mental state to
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commit a murder. The jury rejected that argument, convicted appellant as charged,
and sentenced him to sixty years’ imprisonment.
SUFFICIENCY OF THE EVIDENCE
In a sufficiency challenge, a reviewing court must determine whether a
rational trier of fact could have found the essential elements of an offense beyond a
reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
The offense here was murder, and appellant was charged under three separate
theories of murder, which meant that the prosecution had the burden of proving at
least one of the following sets of essential elements: (1) that appellant intentionally
or knowingly caused the death of the complainant; (2) that appellant intended to
cause serious bodily injury and committed an act clearly dangerous to human life
that caused the death of the complainant; or (3) that appellant committed or
attempted to commit a felony, such as aggravated robbery, and in the course of and
in furtherance of the commission or attempt, he committed or attempted to commit
an act clearly dangerous to human life that caused the death of the complainant. See
Tex. Penal Code § 19.02(b).
We focus on just the third theory and its set of essential elements, which
comprise the offense sometimes known as felony murder. When deciding whether
the prosecution satisfied its burden of proof as to that offense, we examine all of the
evidence in the light most favorable to the verdict. See Braughton v. State, 569
S.W.3d 592, 608 (Tex. Crim. App. 2018). Under this standard of review, we have
no power to reevaluate the weight and credibility of the evidence, or to substitute
our judgment for that of the factfinder. Id. Quite the opposite, we must honor all
findings that are supported by the evidence and by any reasonable inferences that
can be drawn from the evidence. Id. If the record reveals any conflicts in the
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evidence, we presume that the factfinder resolved the conflicts in favor of the
judgment that was actually rendered. Id.For the first element of felony murder, the prosecution was required to prove
that appellant committed or attempted to commit a felony, such as aggravated
robbery. The jury could have rationally found that the prosecution satisfied this
burden. There was evidence from appellant’s accomplice that appellant had
discussed the commission of a robbery during the drive to the complainant’s house.
That accomplice testimony was further corroborated by electronic records, which
showed that the supposed buyer (who was also in appellant’s party) had wanted to
“hit a lick,” which is slang for committing a robbery. The evidence did not establish
that appellant was successful in completing the theft, as no marijuana ever changed
hands, but the jury could have reasonably determined from the surrounding
circumstances that appellant had still attempted a theft.
For the second element of felony murder, the prosecution was required to
prove that, in the course of and in furtherance of his robbery, appellant committed
or attempted to commit an act clearly dangerous to human life. The jury could have
rationally found this element of deadly conduct, based solely on appellant’s second
recorded statement. In that statement, appellant admitted that he shot the
complainant, which was an act clearly dangerous to human life. Appellant claimed
that the shooting was accidental, but the jury was not required to credit that claim.
The jury had a substantial basis for believing that the shooting was intentional or
knowing, based on the other evidence showing that appellant and his party had
planned a robbery, and based on the testimony from the complainant’s sister, which
tended to negate any claim that there was ever a struggle over a gun. The jury could
have likewise concluded that the shooting was not accidental because appellant did
not report the shooting to authorities. Instead, the evidence showed that appellant
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had fled the state, which demonstrated a consciousness of guilt. See Clay v. State,
240 S.W.3d 895, 905 n.11 (Tex. Crim. App. 2007) (“Evidence of flight evinces a
consciousness of guilt.”).
For the third and final element of felony murder, the prosecution was required
to prove that appellant’s deadly conduct actually caused the death of the
complainant. This burden was satisfied when the prosecution produced the medical
examiner, who testified that the complainant’s cause of death was a penetrating
gunshot wound to the neck. The jury could have rationally concluded that this
penetrating gunshot wound was caused by appellant during his attempt to steal
marijuana.
Appellant responds in his brief that the evidence is legally insufficient to
support the conviction because the complainant’s sister did not specifically identify
him as the shooter in court, nor did the complainant’s brother, who also testified.
This argument is not persuasive. Appellant identified himself as the shooter in his
second recorded statement, which means that there was legally sufficient evidence
of identity.
Appellant also suggests that the evidence is insufficient to support the
conviction because the evidence could have supported a finding of self-defense
(which had not been submitted to the jury), or a finding of manslaughter (which had
been submitted as a lesser-included offense). Because appellant has not supplied any
citations to the record or to authority, we overrule this argument as inadequately
briefed. See Tex. R. App. P. 38.1(i).
Based on the foregoing, we conclude that there was legally sufficient evidence
from which the jury could have found every essential element of the offense beyond
a reasonable doubt.
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We overrule appellant’s first point of error.
MOTION TO SUPPRESS
Appellant moved to suppress his second recorded statement on the grounds
that the statement was involuntary. In a hearing conducted outside the presence of
the jury, appellant testified that the investigators repeatedly pressured him into
giving that statement during their flight from Georgia to Texas, which was after
appellant had already asserted his right to an attorney. According to appellant, the
pressure took the form of the investigators saying that “it was in [appellant’s] best
interest to talk to them.”
Both investigators testified in the hearing outside the presence of the jury, and
their testimony controverted appellant’s testimony. They explained that their flight
from Georgia to Texas was in a small turboprop plane, and that the engines were so
loud that conversations could not be conducted inside the cabin without a headset.
They each said that no such conversations took place with appellant, and that they
were all seated in separate rows. One investigator testified that he spent the entire
flight working on a report while wearing noise-cancelling headphones. The other
investigator testified that he spent the flight listening to music.
After landing, only one of the investigators escorted appellant to the Brazoria
County Jail. As appellant was being booked into that jail, one of the jailers alerted
the investigator that appellant was banging on the glass window and requesting to
speak. The investigator testified that he then found a room to interview appellant,
which is where the second recorded statement was obtained.
The trial court denied the motion to suppress, and now appellant raises three
subpoints relating to that ruling. We address those subpoints in a slightly different
order than as they were presented in appellant’s brief.
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In one of his subpoints, appellant requests that we abate this appeal because
the trial court did not enter written findings of fact regarding the voluntariness of his
statement. Appellant correctly observes that written findings are statutorily required,
and that a reviewing court should abate an appeal in the absence of such findings.
See Tex. Code Crim. Proc. art. 38.22, § 6 (“If the statement has been found to have
been voluntarily made and held admissible as a matter of law and fact by the court
in a hearing in the absence of the jury, the court must enter an order stating its
conclusion as to whether or not the statement was voluntarily made, along with
specific finding of facts upon which the conclusion was based, which order shall be
filed among the papers of the cause.”); Vasquez v. State, 411 S.W.3d 918, 920 (Tex.
Crim. App. 2013) (“In this case, no findings of fact were filed. This was error. The
Court of Appeals further erred by not abating for such findings.”). But our court has
held that oral findings are sufficient when they are dictated into the record. See
Joseph v. State, 514 S.W.3d 838, 842 n.2 (Tex. App.—Houston [14th Dist.] 2017,
pet. ref’d) (citing Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003)).
And with the express agreement of appellant’s defense counsel, the trial court here
dictated its findings in lieu of making written findings. Therefore, we deny
appellant’s request to abate this appeal.
In a separate subpoint, appellant reasserts in his brief that his statement had
been coerced. We construe this point as a challenge to the trial court’s ruling on his
motion to suppress, which we review for an abuse of discretion. See Ex parte Moore,
395 S.W.3d 152, 158 (Tex. Crim. App. 2013). Under that standard, we must view
the record of the hearing on the motion in the light most favorable to the trial court’s
ruling, and we must sustain that ruling if it is reasonably supported by the record and
is correct on any theory of law applicable to the case. Id.8
The trial court here orally found that appellant was warned of his rights, both
in Georgia and in Texas. The trial court further found that appellant was not
pressured or otherwise coerced into giving a statement by the investigators.
These findings are supported by the evidence. The recordings establish that
appellant received his rights under Miranda. The investigators also directly testified
that the flight from Georgia to Texas was uneventful, that they never approached
appellant on the flight to discuss the case, and that they never pressured appellant
into making a statement. Appellant also testified that the investigators never kicked
or hit him or threatened him with a gun. Based on all of this evidence, we conclude
that the trial court did not abuse its discretion when it found that appellant’s
statements were voluntary.
In one last subpoint, appellant argues that the trial court should have submitted
the issue of voluntariness to the jury. This point, which is more appropriately
construed as a complaint of charge error, is not fully briefed, and it fails in any event.
The trial court is only required to submit the issue of voluntariness when the
evidence heard by the jury raises an issue of fact. See Tex. Code Crim. Proc. art.
38.22, § 7; Chambers v. State, No. PD-0424-19, — S.W.3d —, 2022 WL 1021279,
at *2 (Tex. Crim. App. Apr. 6, 2022). There was no fact issue here. Appellant did
not testify in front of the jury. He only testified outside the presence of the jury
during the hearing on his motion to suppress. Our review of the record does not
reveal that the jury heard evidence from any other source raising a fact issue, and
appellant has not cited to any such evidence in his brief, which was his burden. See
Tex. R. App. P. 38.1(i). We therefore conclude that the trial court did not err by not
submitting the issue of voluntariness to the jury. See Vasquez v. State, 225 S.W.3d
541, 545 (Tex. Crim. App. 2007) (“Under article 38.22, there is no error in refusing
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to include a jury instruction where there is no evidence before the jury to raise the
issue.”).
We overrule appellant’s second point of error.
CHARGE ERROR
During the charge conference, appellant requested an instruction on self-
defense and on the lesser-included offense of aggravated assault. The trial court
denied both requests, and now appellant challenges those rulings here.
A. Self-Defense
When deciding whether the trial court erred by refusing to instruct the jury on
the law of self-defense, we first consider whether the evidence raised that defensive
issue. See Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. Crim. App. 2013). A
defensive issue is raised by the evidence if there is some evidence, regardless of its
source, on each element of a defense that, if believed by the jury, would support a
rational inference that the element is true. See Shaw v. State, 243 S.W.3d 647, 657–
58 (Tex. Crim. App. 2007). Whether the record contains such evidence is a question
of law, which means that we do not apply the usual rule of appellate deference to the
trial court’s ruling. Id. Quite the reverse, we view the evidence in the light most
favorable to the defendant’s requested submission. See Bufkin v. State, 207 S.W.3d
779, 782 (Tex. Crim. App. 2006).
To support a self-defense instruction in this case, there must have been some
evidence that appellant reasonably believed that deadly force was immediately
necessary to protect himself from another’s use or attempted use of unlawful deadly
force. See Tex. Penal Code § 9.32. Appellant contends that there was such evidence,
and he points solely to the testimony of the accomplice witness, who said that the
complainant reached for appellant’s gun and that a struggle then ensued.
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Because appellant exercised his right to not testify before the jury, there was
no direct evidence that he subjectively believed that deadly force was immediately
necessary to protect himself from the complainant’s use of deadly force. But even if
we assumed for the sake of argument that this belief could be inferred—and that
appellant did not actually provoke the difficulty—we could not reverse the trial
court’s judgment unless the trial court’s refusal to instruct the jury on the law of self-
defense resulted in “some harm.” See Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1985) (op. on reh’g).
When applying the “some harm” standard, a reviewing court must determine
whether the defendant suffered actual harm, as opposed to merely theoretical harm.
See Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). A court must
consider several factors, including the jury charge as a whole, the arguments of
counsel, the entirety of the evidence, and any other relevant information from the
record. Id. We examine these factors in turn.
The Jury Charge. The trial court submitted a lesser-included instruction on
manslaughter, but there was no submission of a justification defense like self-
defense.
The Arguments of Counsel. Defense counsel waived the making of an
opening statement. He made no references to self-defense during his voir dire either,
which means that the jury had no reason to anticipate that issue. Counsel relied on a
different defense instead, and during his closing statement, he argued that the jury
should render an acquittal because appellant lacked the requisite mental state to
commit a murder. This factor does not weigh in favor of finding some harm.
The Entirety of the Evidence. The testimony from the accomplice witness
was not very revealing. The accomplice merely said that the complainant reached
for the gun, without indicating whether the complainant intended to use deadly force
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against another, or whether the complainant intended to prevent the use of deadly
force against himself. And as indicated above, there was no direct evidence that
appellant subjectively believed that his own use of deadly force was immediately
necessary.
However, there was some evidence of appellant’s subjective state of mind.
During his first recorded interview, the investigators specifically asked appellant if
he was acting in self-defense, and appellant responded with ignorance, saying that
he did not even know the complainant. And during the second recorded interview—
after he knew that the investigators had considered self-defense as a possibility—
appellant declined to say that he had acted in self-defense, and he stated instead that
the shooting was accidental because he unintentionally pulled the trigger during his
struggle with the complainant. This evidence strongly indicates that appellant lacked
a subjective belief that deadly force was immediately necessary to protect himself
from the complainant’s use of unlawful deadly force. That lack of belief was also
demonstrated by the other evidence, which tended to show that appellant desired to
commit a robbery.
Altogether, we conclude that any error in the omission of a self-defense
instruction did not result in some harm. See Gonzales v. State, 474 S.W.3d 345, 353–
54 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) (concluding that the erroneous
denial of a self-defense instruction was harmless where the evidence strongly
indicated that the use of deadly force was not justified).
B. Aggravated Assault
A trial court reversibly errs by denying a requested instruction for a lesser-
included offense if (1) the lesser offense is included within the proof required of the
charged offense, and (2) there is some evidence from which a rational jury could
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acquit the defendant of the charged offense while convicting him of the lesser
offense. See Segundo v. State, 270 S.W.3d 79, 90–91 (Tex. Crim. App. 2008).
A person commits aggravated assault if he intentionally, knowingly, or
recklessly causes serious bodily injury to another, or if he intentionally or knowingly
threatens or injures another with a deadly weapon. See Tex. Penal Code § 22.02(a).
These elements can fall within the proof needed to establish a murder, which is a
greater offense because murder additionally requires evidence that the person caused
the death of another. See Tex. Code Crim. Proc. art. 37.09(1)–(2) (providing that 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” or “it
differs from the offense charged only in the respect that a less serious injury or risk
of injury to the same person, property, or public interest suffices to establish its
commission”); Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999)
(“Aggravated assault can be a lesser-included offense of murder.”). Thus, the first
prong of the error analysis has been satisfied.
To satisfy the second prong, there must be affirmative evidence that both
raises the lesser-included offense and rebuts or negates an element of the charged
offense. See Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012).
Appellant argues that he was entitled to the instruction on the lesser-included offense
because he recklessly caused serious bodily injury, which thereby raised the issue of
aggravated assault. But appellant has not pointed to any evidence, and we are aware
of none, that rebuts or negates the proof showing that he caused the death of the
complainant. Because there was no such evidence, the trial court did not err by
denying appellant’s request for the instruction on the lesser-included offense. Cf.
Bergeron v. State, 981 S.W.2d 748, 752 (Tex. App.—Houston [1st Dist.] 1998, pet.
ref’d) (“Thus, if appellant intentionally or knowingly created an injury that caused
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the death of complainant, he would have committed aggravated assault; however, he
also would have committed murder as charged in the first paragraph of the
indictment. Therefore, he could not be found guilty only of the lesser included
offense of aggravated assault under such circumstances. Furthermore, there was no
evidence that appellant threatened or injured complainant with a deadly weapon but
did not cause his death.”).
We overrule appellant’s third point of error.
CONCLUSION
The trial court’s judgment is affirmed.
/s/ Tracy Christopher
Chief Justice
Panel consists of Chief Justice Christopher and Justices Bourliot and Spain.
Do Not Publish – Tex. R. App. P. 47.2(b).
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