Opinion
NO. 01-15-00178-CR
03-29-2016
JUAN REYES, JR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court Harris County, Texas
Trial Court Case No. 1313736
MEMORANDUM OPINION
Juan Reyes was convicted of capital murder for shooting Terry Todd after committing a burglary at Todd's residence. On appeal, he argues that the trial court erred in denying his request for a jury instruction on the lesser-included offense of felony murder. We affirm.
TEX. PENAL CODE ANN. § 19.03 (West Supp. 2015).
Background
Todd left his family business one morning to go home and change clothes before going to a doctor's appointment. That particular morning, the house, on the west side of a multi-acre piece of property, was being burglarized. A person driving by Todd's house earlier that morning saw two men, including Reyes, "cutting" the chain on Todd's fence to enter the property.
Two eyewitnesses described what occurred when Todd returned to his home to change clothes. One witness, Rodrigo Montalvo, who admitted to having vision issues at the time of his trial testimony four years later, had been eating at a nearby fast-food restaurant when he witnessed Reyes and another man driving a truck on Todd's property, then chasing the truck Todd was driving. Reyes's truck cornered and blocked Todd's truck. Reyes got out of his truck, walked to Todd's truck, opened the passenger door, and shot at Todd twice. Reyes ran back to his truck, "turned and look[ed]," and, seeing that Todd was still alive, shot once again. Todd fell out of his truck and landed on the ground, and Reyes left the scene. The second witness did not see the shooting but did hear gun shots, then turned toward the direction of the shots and, in a slight variation from Montalvo's recollection, saw two men run from Todd's truck, get in their car, and drive off.
After receiving a call reporting a "shooting in progress," the police quickly drove to Todd's property. When the police arrived, they found Todd's body next to his truck, which had an open door, was "in park," and was still running.
The results of the police investigation of Todd's death were consistent with key aspects of the two eyewitnesses' testimony. A police deputy analyzed the two sets of tire tracks left on Todd's property and determined that Reyes's truck chased Todd's truck, "cut to the inside" to block Todd's truck, and then drove off. After examining the bullet holes in Todd's truck, the deputy concluded that Reyes "was standing outside the passenger door firing at [Todd]," with one bullet going "through the top of the cab," a second "into the console," and another "into the victim." The deputy also believed that Todd could have "hit [Reyes's] gun with his right hand, deflected it and then additional shots were fired at him and he was shot." The doctor who conducted Todd's autopsy agreed that Todd's injuries were consistent with him "sitting in cab of truck behind the steering wheel and the shooter being outside standing on the ground outside the passenger door of that vehicle."
The police also investigated Todd's house. They found that the house door had been forced open, the refrigerator was in the middle of the kitchen, and someone had taken furniture, appliances, and an indoor filtering system out of the house and to the back porch. The police concluded that Todd arrived home and interrupted the burglary which led to the chase that Montalvo described.
The jury found Reyes guilty of capital murder, and the trial judge sentenced him to life imprisonment without parole. Reyes appeals his conviction.
Felony-Murder Instruction
Reyes argues that the trial court erred by denying his request for a jury instruction on the lesser-included offense of felony murder because "[t]he testimony at trial regarding Reyes's specific intent to kill was inconsistent, and if properly instructed, the jury could have found that Reyes was guilty only of felony murder." Reyes specifically contends that Montalvo's testimony was "the only direct evidence at trial that could have established a specific intent to kill." Reyes argues that "no rational factfinder could find" that Montalvo's testimony that Reyes returned to Todd's truck to fire a third shot was reliable because it contradicted the testimony of the second witness and the deputy on the location of the bullets. Additionally, the deputy's testimony that there may have been a struggle for the gun could cast "doubt on whether Reyes intentionally killed Todd."
A. Standard of review
In determining whether a defendant is entitled to a jury charge on a lesser-included offense, we must follow a two-step process: (1) "the lesser included offense must be included within the proof necessary to establish the offense charged" and (2) "some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense." Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993) (emphasis removed). The first prong is not at issue because "felony murder is a lesser-included offense of capital murder." Id.
To meet the second prong, "[i]t is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense. Rather, there must be some evidence directly germane to a lesser-included offense for the factfinder to consider before an instruction on a lesser-included offense is warranted." Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997). While "it does not matter whether the evidence is strong, weak, unimpeached or contradicted," some evidence must exist affirmatively supporting a conclusion that the defendant is guilty of only the lesser-included offense. Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994).
B. Evidence shooting was unintentional
The key difference between capital murder and felony murder in this context is the defendant's mental state. Rousseau, 455 S.W.2d at 673. "Capital murder requires the existence of an intentional cause of death, while in felony murder, the culpable mental state for the act of murder is supplied by the mental state accompanying the underlying felony." Id. (internal citations and ellipses omitted). Thus, for the defendant to be entitled to a charge on felony murder, the record must contain some evidence that would permit a jury to rationally find that the defendant intended to commit the underlying felony (i.e. burglary) but unintentionally caused the victim's death. Skinner, 956 S.W.2d at 543; see Hines v. State, No. 01-11-00725-CR, 2012 WL 5458424, at *4 (Tex. App.—Houston [1st Dist.] Nov. 8, 2012, pet. ref'd) (mem. op., not designated for publication) ("the record must contain some evidence that would permit a rational jury to find that [the defendant] . . . unintentionally caused the [victim's] death . . . .").
A defendant acts intentionally "when it is his conscious objective or desire to engage in the conduct or cause the result." TEX. PENAL CODE ANN. § 6.03(a) (West 2011).
Reyes does not point to, nor can we find, any affirmative evidence in the record that he unintentionally killed Todd. Instead, Reyes argues that the jury could not find Montalvo's testimony "reliable" and that the evidence "regarding specific intent to kill in the course of the burglary and robbery is subject to different interpretations."
The facts regarding Reyes's mental state are similar to those in other cases that held that the trial court did not err in refusing to grant a jury instruction on a lesser-included offense. For example, Hines v. State held that the trial court did not err in refusing to grant a jury instruction on felony murder when no witness testified that the defendant acted unintentionally. 2012 WL 5458424, at *4. An eyewitness had testified that the defendant intentionally shot at and killed the victim, but the defendant testified that, although he was at the murder scene, he was not the person who shot the victim. Id. Because neither witness gave "affirmative evidence" that the defendant unintentionally killed the victim, the trial court did not err in refusing to give the jury an instruction on felony murder. Id. Similarly, Castellano v. State held that the trial court correctly refused to give a jury instruction on a lesser-included offense when no witness testified that the defendant had the requisite mental state for criminally negligent homicide. No. 01-14-00486-CR, 2015 WL 3981807, at *7 (Tex. App.—Houston [1st Dist.] June 30, 2015, no pet.) (mem. op., not designated for publication). In Castellano, the victim died from injuries to her neck. Id. Although the evidence was contradictory on how the defendant "grabbed" the victim's neck, no witness testified that the defendant "was unaware of the risks involved in grabbing another's neck"—the required mental state for criminally negligent homicide—and thus, the record did "not contain more than a scintilla of evidence from which a rational jury could have concluded" that the defendant had the requisite mental state for the lesser-included offense of criminally negligent homicide. Id. at *7-8. --------
Reyes argues that "a rational jury could have inferred that the fatal shot occurred in a struggle for the gun, negating or casting doubt on whether Reyes intentionally killed Todd while robbing him." Reyes points to the deputy's testimony to argue that the jury could have inferred that he accidentally shot Todd. On cross-examination, the deputy testified:
Q: So, there was a scuffle over the gun. Is that what you are testifying?
A: No, I didn't say a scuffle. I believe that [Todd] hit the gun with his right hand, deflected it and then additional shots were fired at him and he was shot.
Reyes argues that this testimony could have formed the basis for a reasonable jury to find that he shot Todd unintentionally. But the deputy's testimony does not support this view; the deputy testified that Todd deflected the gun and "then" additional shots were fired and Todd "was shot"—not that the gun accidently discharged and killed Todd during the struggle. Reyes shot at Todd four times, including the shot that Todd deflected into the cab. This was after Reyes chased Todd and cornered him with his truck. This evidence does not warrant a felony-murder instruction because "[i]t is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense." Skinner, 956 S.W.2d at 543.
Thus, because the record does not contain any "affirmative evidence" that Reyes unintentionally killed Todd, the trial court did not err in refusing to include a jury instruction for felony murder.
Conclusion
We affirm Reyes's conviction.
Harvey Brown
Justice Panel consists of Justices Bland, Brown, and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).