TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00105-CR
Kenneth Raymond O'Brien, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BLANCO COUNTY, 33RD JUDICIAL DISTRICT
NO. 583, HONORABLE CLAYTON E. EVANS, JUDGE PRESIDING
Appellant Kenneth Raymond O'Brien appeals from his conviction for the offense of murder. See Tex. Penal Code Ann. § 19.02 (West 1994). The jury assessed appellant's punishment at imprisonment for life; there was an affirmative finding that appellant used a deadly weapon in the commission of the offense.
Appellant presents five points of error asserting that the evidence is factually insufficient and that the trial court erred in failing to (1) grant a continuance, (2) conduct an in-trial competency hearing, (3) charge the jury on the lesser included offense of manslaughter, and (4) charge the jury on involuntary intoxication. We will affirm the trial court's judgment.
In his fifth point of error, appellant insists that the evidence is factually insufficient to support the jury's verdict. Appellant does not challenge the legal sufficiency of the evidence. In reviewing factual sufficiency of the evidence, we view all of the evidence without the prism of "in the light most favorable to the prosecution," and we will set aside the jury's verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd untimely filed). "In performing a factual sufficiency review, we are required to give deference to the jury's verdict, examine all of the evidence impartially, and set aside the jury verdict 'only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust'." Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997) (quoting Clewis, 922 S.W.2d at 129).
It was alleged and the jury found that appellant intentionally and knowingly caused the death of David Cowe by shooting him with a handgun. The jury's verdict followed five days of testimony. We will summarize all of the testimony. David Cowe was shot and killed on the premises of a trailer park in Johnson City on September 24, 1995. At about 9:30 p.m., Cowe, who was intoxicated, and Terri Lynn Henrie, both residents of the trailer park, were seated at a concrete picnic table talking. Appellant, another resident of the trailer park, came over to the table with a handgun under his belt and a knife in his possession; he took shotgun shells and cartridges for several caliber weapons from his pockets and placed them on the table. Appellant related to Henrie that he had taken some Quaaludes and that he needed to do some things before they "kicked in." Appellant wanted to "roll a joint" but he did not have any cigarette papers. Cowe, at appellant's request, went to his trailer, returned with some cigarette papers, gave them to appellant, and sat down at the table. Appellant then looked across the table at Cowe and said, "Do you have AIDS, man?" Cowe replied, "No." Henrie testified that appellant then "just pulled the gun out of his belt and just shot straight across the table. . . . It was very quick,. . . by the time that he [Cowe] stopped saying no, he was shot." Cowe started to walk toward Henrie and fell forward. Appellant said, "Are you hurt man?" Cowe did not reply. Appellant kept Cowe, a small man, from falling to the ground. Henrie was frightened because she thought appellant might shoot her. In an effort "to calm" appellant, Henrie testified she said "I think there has been a terrible accident here, but I didn't see it happen." Appellant, with the gun in his hand, started to drag Cowe toward appellant's Blazer. Henrie asked appellant to give her the gun, and she accompanied or assisted appellant in getting Cowe to the Blazer. Appellant placed Cowe in the Blazer and then drove from the trailer park; he testified he intended to take Cowe to the nearest hospital.
Cowe's mutilated body was found in a roadside park. The victim's hands had been severed from his eviscerated body. An ax, which the State contended was used to mutilate Cowe's body, was found at a different location partially buried near his Blazer when the officers arrested appellant.
Dr. Roberto J. Bayardo, Travis County Chief Medical Examiner, testified that he performed an autopsy on the victim's body. Dr. Bayardo testified the victim's death was caused by a gunshot in the chest. He found the "nose piece of the bullet" underneath the skin as well as another fragment of the projectile. "There was a gunshot track into the chest that had gone through his heart and lower portion of the left lung." The "bullet had fragmented in three pieces." The exit wound appeared "to have been someplace where. . . . there were post mortem injuries that almost severed the body in two." A sample of the victim's blood tested positive for alcohol in the amount of 0.23 percent and negative for other drugs. Dr. Bayardo testified that the "bullet might have struck something, some other object that was between the gun and the victim causing it to fragment." Dr. Bayardo found the bullet entrance was oblong and not round and theorized and noted that if the bullet struck a beer can it would have made the bullet turn sideways.
Ronald Crumley, a Department of Public Safety firearm and tool mark examiner, examined and test-fired the pistol which was shown to be the weapon fired by appellant. He also examined the copper jacket of the bullet found in the victim's body. In Crumley's opinion the bullet had been fired from appellant's pistol. While he was test-firing the weapon, it jammed because a cartridge did not properly load into the chamber. Crumley testified that the malfunction could have had any of a number of causes. It could have been caused by the pistol's extractor or dirty chamber or because of defective ammunition. Crumley testified he would not have expected the bullet to fragment unless it struck material harder than flesh. He found that the copper jacket on "one side exhibited gouging, over marking. . . . like it had hit something." Crumley testified that the marking of the bullet's copper jacket might be "consistent with the bullet striking the cement." Crumley also testified that the gouging on the bullet may have been caused by an ax while the bullet was in Cowe's body.
Appellant testified in his own defense and offered extensive testimony of a psychiatrist and a firearms examiner. The psychiatrist, Dr. Michael Arrambula, testified that appellant at the time of the offense was "suffering from manic depression, specifically the manic phase of the illness." Dr. Arrambula testified concerning appellant's manic depression illness, appellant's prior medical treatment, and how appellant's illness related to this specific crime. Dr. Arrambula concluded that "Mr. O'Brien's mania did not reach a level of severity that he did not know that what he was doing was wrong."
Edward William Love, a firearms examiner for the Bexar County Crime Laboratory, testified for the defense. Love testified that the copper jacketed lead projectile recovered from the victim's body by the medical examiner came from a 7.62 by .25 caliber cartridge made in China. The weapon in which the cartridge had been fired was a 7.62 Russian Koperev pistol made in Czechoslovakia. Love, testifying about the copper jacket and a lead fragment of the bullet stated that, "It [copper jacket] like the lead core that I examined has been flattened and, of course, separated from the core and also has got some damage to it, scraping where it hit a hard object." The "scrapings" on the bullet were consistent with having struck a hard object. After seeing the photographs and reading Dr. Bayardo's report, Love thought the bullet had yawed going sideways rather than straight to a point. Love did not believe the scrape marks on the bullet jacket could have been made with an ax while the jacket was in Cowe's body and he did not believe they could have been made when the bullet passed through a beer can.
The fifty-two-year-old appellant testified he was an alcoholic but had not had a drink of alcohol for fourteen years. He also testified he had been diagnosed as a "bipolar manic" and he told of the medication he had taken. Before Cowe was shot, appellant testified that he had unloaded his pistol, pointed it at the table, and pulled the trigger. He testified that the shooting of Cowe was an accident. He also testified that he had asked, "You don't have AIDS do you man?"because he was going to smoke pot with him. There was evidence suggesting that they smoked marihuana together earlier in the evening.
In rebuttal, Blanco County Sheriff Bill Yung testified that on September 24th and 25th he inspected the concrete picnic table after Cowe was shot. He testified that as soon as the officers saw what appeared to be a bullet hole in the bottom of a beer can, they inspected the entire table for "any kind of mark that may have been made by any kind of hard object" and found none.
Appellant argues that the witness Henrie "lied about everything from her name to what she was doing at the time of the incident" and that she was not a credible witness. The jury heard and was authorized by the jury charge to evaluate the credibility of all the witnesses. The jurors were charged to acquit appellant if they believed, or had a reasonable doubt, that the shooting of Cowe was accidental and was not a voluntary act of appellant. Although there was testimony from which the jury might have concluded that Cowe's shooting was accidental, the jury, properly instructed, rejected appellant's defense of accident.
We have applied the standard of review required by Cain, Clewis, and Stone; after examining all of the evidence impartially and giving deference to the jury's verdict, we conclude that the jury's verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. We hold that the evidence is factually sufficient to support the jury's verdict and overrule appellant's fifth point of error.
In his first and second points of error, appellant asserts that the trial court erred in refusing to grant a continuance or to grant a competency hearing after the trial commenced. The State rested its case-in-chief on the fifth day of trial. On the sixth day of trial, appellant presented the testimony of witnesses in his defense. On the morning of the seventh day of trial, before any testimony was heard by the jury and before appellant had testified, appellant's counsel made an oral motion for continuance urging that appellant was ill. Both of appellant's counsel testified in support of the oral motion. Counsel testified that they had received information from a physician that appellant was suffering from a urinary tract infection that produced a high fever and headaches. The sheriff had informed counsel that appellant was taking a prescribed antibiotic. Counsel testified that in their opinion appellant generally lacked the ability to confer with counsel in a sensible manner. They felt he would have difficulty making the rational decisions that he had made up to that time during the trial. Further, counsel did not believe appellant was competent to confer rationally with counsel to assist in his own defense. They contended that they could not proceed with the trial because appellant could not confer with them with a rational degree of understanding. Counsel had not discussed with appellant whether he was experiencing pain in his urinary tract. No medical testimony was offered in support of the motion. The trial court overruled the motion for a continuance and the motion to conduct a hearing on appellant's competency. The court proceeded with the trial. Appellant testified at some length, but contends that he was confused and contradicted himself. Penetrating cross-examination may have accounted for inconsistency and self-contradiction in appellant's testimony. Prior to trial two psychiatrists had examined appellant and found he was competent to stand trial.
A motion for continuance must be in writing and must set forth the cause for continuance. Tex. Code Crim. Proc. Ann. art. 29.03 (West 1989). All defense motions for continuance must be sworn to by defendant himself. Id. art. 29.08. A motion for continuance not in writing and not sworn will not preserve error for review. See Matamoros v. State, 901 S.W.2d 470, 478 (Tex. Crim. App. 1995); Montoya v. State, 810 S.W.2d 160, 176 (Tex. Crim. App. 1989). The "refusal to grant an oral motion for continuance, whether made before or after the trial commenced, is not ground for reversal." Carpenter v. State, 473 S.W.2d 210, 213 (Tex. Crim. App. 1971); see Hightower v. State, 629 S.W.2d 920, 926 (Tex. Crim. App. 1981); Minx v. State, 615 S.W.2d 748, 749 (Tex. Crim. App. 1981); Vega v. State, 898 S.W.2d 359, 361 (Tex. App.--San Antonio 1995, pet. ref'd). Moreover, appellant has not furnished a record with evidence in support of a motion for new trial showing the court abused its discretion in failing to grant the motion for continuance. See Minx v. State, 615 S.W.2d at 750. Even if error is preserved for review, a trial court's decision to refuse a continuance is reversible only for an abuse of discretion. See Matamoros, 901 S.W.2d at 478; Smith v. State, 721 S.W.2d 844, 850 (Tex. Crim. App. 1986). The trial court did not abuse its discretion in refusing to grant a continuance and in refusing to grant a hearing on competency. Appellant's first and second points of error are overruled.
In his third point of error, appellant urges that the trial court erred in refusing to submit to the jury his timely requested charge on the lesser included offense of manslaughter. The trial court did charge the jury on the lesser included offense of criminally negligent homicide and accidental shooting. The test to determine whether a charge on a lesser included offense is necessary has been stated to be: "[F]irst, the lesser included offense must be included within the proof necessary to establish the offense charged, and second, 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, 673 (Tex. Crim. App. 1993). "In applying this two-pronged test the trial court should make a determination as to whether the evidence of the lesser offense would be sufficient for a jury rationally to find that the defendant is guilty only of that offense, and not the greater offense." Id.
In determining whether the trial court erred in failing to charge the jury on the lesser included offense of manslaughter, all of the evidence presented by the State and the defendant must be considered. Penry v. State, 903 S.W.2d 715, 755 (Tex. Crim. App. 1995); Havard v. State, 800 S.W.2d 195, 216 (Tex. Crim. App. 1989). "It is not enough, . . . that the jury may disbelieve crucial evidence pertaining to the greater offense." Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994). Instead "there must be some evidence directly germane to a lesser . . . offense for the fact finder to consider before an instruction . . . is warranted." Id. Merely because a lesser offense is included within the proof of the greater offense, however, does not necessarily warrant a jury charge on the lesser offense. See Jones v. State, 833 S.W.2d 118, 127 (Tex. Crim. App. 1992); Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985).
The differences between murder, manslaughter, and criminally negligent homicide are the culpable mental states required for conviction. The culpable mental state required for a murder conviction is intentional or knowing. See Tex. Penal Code Ann. § 19.02 (West 1994). The culpable mental state required for conviction of manslaughter is reckless. See id. § 19.04. The culpable mental state required for conviction of criminally negligent homicide is criminal negligence. See id. § 19.05. Therefore, manslaughter and criminally negligent homicide are lesser included offenses of murder. See Tex. Code Crim. Proc. Ann. art. 37.09(3) (West 1981). Reckless conduct as statutorily defined involves conscious risk creation, that is, the defendant is aware of the risk surrounding his conduct or the result thereof, but consciously disregards that risk. Tex. Penal Code Ann. § 6.03(c) (West 1994); Lewis v. State, 529 S.W.2d 550, 553 (Tex. Crim. App. 1975). Criminal negligence as statutorily defined involves inattentive risk creation, that is, the defendant ought to be aware of the risk surrounding his conduct or the result thereof. Id. § 6.03(d); Lewis, 529 S.W.2d at 553. At the heart of reckless conduct is conscious disregard of the risk created by the defendant's conduct; the key to criminal negligence is found in the failure of the defendant to perceive the risk. See id.; Burnett v. State, 865 S.W.2d 223, 227-30 (Tex. App.--San Antonio 1993, pet. ref'd). In a sense manslaughter and negligent homicide are mutually exclusive, alternative lesser included offenses of murder. See Saunders v. State, 913 S.W.2d 564, 572-73 (Tex. Crim. App. 1995). However, in some cases the evidence relevant to the culpable mental state may give rise to more than one inference. Id.
Because manslaughter is a lesser included offense of murder, we must determine from all of the evidence whether a jury could rationally have found that appellant, if guilty, was guilty only of the offense of manslaughter and not guilty of the greater offense of murder. Appellant contends that appellant's testimony and that of Henrie raises the issue of reckless conduct and manslaughter. Appellant testified that he emptied his gun by taking out the clip, checking it, seeing how many bullets it had in it. "[I]t never should have had anything in it when I took it out there, because there must have been a round in the magazine and it went off." Henrie testified that immediately after the shot appellant seemed stunned. Appellant says this evidenced that he was shocked and surprised by what had happened. Appellant argues that this evidence indicates he was aware of the risk in handling the gun in the presence of other people. We believe that the trial court's implied finding was correct that evidence the appellant cleared his gun and showed shock and surprise when it fired indicated that appellant did not perceive the risk when he fired the gun and therefore acted in a criminally negligent manner. This led the court to charge on criminally negligent homicide and not manslaughter. The jury refused to find appellant acted with criminal negligence and found appellant acted intentionally or knowingly and found appellant guilty of murder. It is evident that the jury found credible Henrie's testimony that appellant "just pulled the gun out of his belt and just shot straight across the table."
We conclude that the evidence would not allow the jury to rationally find that appellant was guilty only of the lesser included offense of manslaughter and not guilty of the charged offense of murder. We hold that the evidence is both legally and factually sufficient to allow the jury to rationally find appellant guilty of the charged offense of murder.
Moreover, if the facts in this case could be construed so as to have entitled appellant to a charge on manslaughter, we conclude that the failure to submit such a charge was harmless error. The charge submitted included the lesser included offense of criminally negligent homicide. This gave the jury an alternative to convicting appellant of the charged offense or acquitting him. "If the jury harbored a reasonable doubt as to defendant's guilt of the charged offense but at the same time believed him guilty of some offense, it was not forced to choose between conviction and acquittal, but had an option of convicting him of the lesser offense that was submitted." Jimenez v. State, 953 S.W.2d 293, 298 (Tex. App.--Austin 1997, no pet.). "That it did not do so may indicate that the failure to give the other lesser included offense instruction was harmless error." Id. The Court of Criminal Appeal's harmless error analysis in a similar case would support a conclusion that if the trial court in this case erred in not submitting a manslaughter charge, it was harmless error. See Saunders, 913 S.W.2d at 569-74. We hold that the trial court did not err in refusing to submit the requested manslaughter charge. Appellant's third point of error is overruled.
In his fourth point of error, appellant complains that the trial court erred in refusing to submit to the jury his requested charge on involuntary intoxication. At the guilt-innocence phase of the trial, appellant asked the trial court to submit this charge:
Now, therefore, if you find and believe from the evidence beyond a reasonable doubt that the defendant committed the offense of murder as alleged in the indictment but you further find by a preponderance of the evidence, that at the time of the conduct charged the defendant was intoxicated as that term is heretofore defined and that (1) the accused has exercised no independent judgment or volition in taking the intoxicant and (2) as a result of his intoxication the accused did not know his conduct was wrong or was incapable of conforming his conduct to the requirements of the law he allegedly violated, you will acquit the defendant and so say by your verdict "Not Guilty."
Appellant did not request a charge on voluntary intoxication at the punishment phase of trial to mitigate his punishment. See Tex. Penal Code Ann. § 8.04 (West 1994); Arnold v. State, 742 S.W.2d 10, 14 (Tex. Crim. App. 1987); Rodriguez v. State, 513 S.W.2d 594, 595 (Tex. Crim. App. 1974).
Involuntary intoxication may constitute an affirmative defense to the commission of a criminal offense. See Torres v. State, 585 S.W.2d 746 (Tex. Crim. App. 1979); Shurbet v. State, 652 S.W.2d 425, 427 (Tex. App.--Austin 1982, no pet.). The involuntary intoxication defense is limited to (1) defendant's unawareness of what the intoxicating substance is, (2) force or duress, or (3) prescribed drugs taken according to prescription. Id. at 428. Appellant argues that on the day of the offense his use of marihuana, Quaaludes, and a prescribed antidepressant medication Paxil, caused intoxication.
Appellant argues that: "The jury should have been allowed to determine whether or not this involuntary intoxication rose to the level of temporary insanity, thus making it impossible for him to form an intentional act." The marihuana and Quaaludes used by appellant were voluntarily, not involuntarily used. Appellant's expert witness testified that the antidepressant Paxil might have "flipped" appellant into a manic state in which he would have had a high level of energy and difficulty sleeping. There is no evidence that Paxil could or did cause appellant to become intoxicated. There is no evidence that appellant's taking Paxil resulted in his intoxication so that he did not know his conduct was wrong or that it caused him to be incapable of conforming his conduct to the requirements of the law. In fact, appellant's expert witness testified that, "Mr. O'Brien's mania did not reach a level of severity that he did not know that what he was doing was wrong." The evidence did not raise the issue requiring the trial court to submit the requested charge, and the trial court did not err in refusing to submit it. Appellant's fourth point of error is overruled.
The trial court's judgment is affirmed.
Carl E. F. Dally, Justice
Before Justices Aboussie, Kidd and Dally*
Affirmed
Filed: October 8, 1998
Do Not Publish
* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).
ntary intoxication. At the guilt-innocence phase of the trial, appellant asked the trial court to submit this charge:
Now, therefore, if you find and believe from the evidence beyond a reasonable doubt that the defendant committed the offense of murder as alleged in the indictment but you further find by a preponderance of the evidence, that at the time of the conduct charged the defendant wa