Affirmed and Memorandum Opinion filed August 21, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-07-00671-CR
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DANIEL RAY SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Cause No. 1064737
M E M O R A N D U M O P I N I O N
Appellant Daniel Ray Smith appeals his conviction for capital murder. In five issues, appellant challenges the sufficiency of the evidence, the exclusion of a lesser-included offense in the jury charge, and submission of a special issue regarding the use or exhibition of a deadly weapon. We affirm.
I. Background
Complainant Norman Oshman was due to return to Houston late Thursday evening, December 8, 2005, after a short business trip to Las Vegas. The complainant=s mother, Esther Oshman, knew that her son was traveling and expected to hear from him when he returned. By the next evening, December 9, when Esther was unable to reach her son by telephone, she became concerned and drove to the apartment with her other son, Gene Oshman. They entered the apartment using Esther=s spare key and saw the complainant=s suitcase just inside the doorway. They found the complainant dead in his bedroom. He had been tied up and severely beaten. He had multiple skull fractures, many of which were deep enough to break through the skull and expose brain matter. Blood was pooled on the bed and splattered all over the room. Gene called the police, and the investigation began.
A removed window screen in the complainant=s bedroom, a muddy footprint on the carpet under the window, and a newly positioned table under the window led police to believe the intruder gained access to the apartment through the window. The complainant=s wallet was found with a parking receipt, indicating that he had exited the airport parking lot on December 8, 2005. Police also discovered a piece of paper with internet log-in names and passwords in the complainant=s apartment. Using this information, the police were able to access recent activity on the complainant=s credit cards. The records indicated that the complainant=s American Express card had been used at a Diamond Shamrock store at 4:45 a.m. on December 8, 2005, while the complainant was still in Las Vegas. This transaction was captured by video surveillance. The card was used again later that morning at a convenience store. The records also showed several transactions on other credit or bank cards occurring on December 9 and 10 at a Sterling Bank ATM, a Royal Oaks Bank ATM, and a Chase Bank ATM. Video surveillance cameras recorded some of these transactions as well. The surveillance video from Chase Bank showed five attempted transactions on December 10 using the complainant=s credit card. An Hispanic male made the first two withdrawal attempts, and a second male wearing a ski mask, a dark leather coat, gloves, and dark colored shoes attempted the rest of the transactions. The video also showed the man wearing the ski mask and dark coat urinating on the ATM.
The suspect in the Diamond Shamrock surveillance video drove a gray or silver late model foreign car with a spoiler on the back. After seeing the video played on the news, the complainant=s friend, Jay Frank, observed a similar car parked near the complainant=s apartment complex. Frank reported the car and its license plate number to the police. The car was registered to appellant, and after executing a search and arrest warrant, police arrested appellant and seized from appellant=s bedroom a black leather jacket, shoes, and slacks similar to the ones seen in the surveillance video. In addition, a can of Copenhagen snuff was found in appellant=s apartment. A police officer testified that a can of Copenhagen snuff had been purchased at the Diamond Shamrock store with the complainant=s credit card.
Appellant was charged with intentionally causing the death of the complainant while in the course of committing or attempting to commit a burglary by striking him with a baseball bat or an unknown object. At trial, the State submitted the surveillance videos into evidence. Two witnesses acquainted with appellant testified that the mannerisms of the person in the Diamond Shamrock video and the mannerisms and clothing of the person wearing the ski mask and dark jacket in the Chase Bank video were consistent with appellant=s mannerisms and clothing.
The State also presented evidence from two inmates in whom appellant had confided while in jail. Randy Middlebrook testified that he bunked next to appellant. One evening after the lights were out, appellant told Randy that he stopped praying a long time ago because he Aknew exactly what he was doing when he killed that man.@ Appellant told Randy he was in the complainant=s apartment looking for money and other items to sell when the complainant came home. Appellant claimed he had murdered the Aheir to the Oshman sporting goods family.@ Randy testified appellant said that from the blood splatter, the police thought it was a shotgun, but that he had used a baseball bat. Randy also testified that appellant claimed he could tell Randy where the clothes and weapon used in the murder and the stolen credit cards were hidden. Jesse Capes, another inmate, testified that appellant asked him whether it was possible to get AIDS from blood that had spattered in appellant=s eye. Appellant also asked Jesse whether police could obtain a DNA sample from urine if appellant had urinated on something outside. According to Jesse, appellant said the murder was a Aburglary gone bad.@ Jesse testified to hearing appellant tell Randy that appellant had tied up a man and killed him with a baseball bat, and that appellant could tell Randy where the clothes, weapon, and credit cards were hidden.
A jury convicted appellant of capital murder and sentenced him to life in prison. On appeal, appellant argues that the trial court erred in failing to instruct the jury on the lesser-included offense of burglary, that the evidence is legally and factually insufficient to prove he used either a baseball bat or an unknown object, and that the trial court erred in submitting a special issue regarding the use of a deadly weapon because (1) appellant did not receive proper notice and (2) the special issue constituted an impermissible comment on the weight of the evidence.
II. Lesser-Included Offense
In his first issue, appellant claims the trial court erred by refusing his request that the jury be instructed on the lesser-included offense of burglary of a habitation. The following two-prong test is used to determine if a charge on a lesser-included offense should be given: (1) the lesser-included offense is included within the proof necessary to establish the offense charged and (2) there is some evidence that would permit a rational jury to find that the defendant is guilty of the lesser offense but not guilty of the greater. See Tex. Crim. Proc. Code Ann. art. 37.09(1) (Vernon 2006); Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005).
The indictment in this case required the State to prove burglary or attempted burglary on December 9, 2005 as the underlying offense to capital murder.[1] The jury charge stated, AA person commits the offense of burglary of a habitation if, without the effective consent of the owner, he: (1) enters a habitation with intent to commit a felony, theft, or an assault; or (2) enters a habitation and commits or attempts to commit a felony, theft, or an assault.@ Because proof of the elements of burglary necessarily involved proof of the same or fewer facts required to prove capital murder, the first prong is satisfied. See Salinas, 163 S.W.3d at 741.
In meeting the second prong of the test, there must be some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser-included offense. Id. Evidence may indicate that a defendant is guilty only of the lesser offense if it refutes or negates other evidence establishing the greater offense or if the evidence is subject to different interpretations. Saunders v. State, 840 S.W.2d 390, 391B92 (Tex. Crim. App. 1992) (en banc) (per curiam). That the jury may disbelieve crucial evidence pertaining to the greater offense is not sufficient to warrant the submission of the lesser-included offense to the jury; there must be some evidence directly germane to the lesser-included offense to warrant such submission. See Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997). The evidence must be evaluated in the context of the entire record. Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998) (en banc). The credibility of the evidence and whether it conflicts with other evidence should not be considered when deciding whether the charge on the lesser offense should be given. Saunders, 840 S.W.2d at 391. If the defendant simply denies commission of the offense or there is no evidence specifically raising an issue regarding an element of the offense, then the charge on the lesser offense is not required. Id. at 392.
Appellant claims the trial court erred in refusing to give a lesser-included offense instruction on burglary of a habitation because the jury could have found appellant only burglarized the apartment on December 8, 2005 and that someone else committed the burglary and murder on December 9, 2005. The proper inquiry is whether, when viewed in the light most favorable to the defendant=s requested submission, the evidence is sufficient for a rational jury to conclude that the State and the defendant are proposing alternate versions of the same instance of conduct and not separate instances of conduct. Bufkin v. State, 207 S.W.3d 779, 783 (Tex. Crim. App. 2006). In other words, to be entitled to a lesser-included offense instruction, a rational factfinder must have reason to believe that the defendant=s scenario competes, rather than coexists, with the State=s scenario. Id.
The complainant returned home from Las Vegas sometime on Thursday evening, December 9. Although appellant used the complainant=s American Express card before the complainant=s return, different cards belonging to the complainant were used after the complainant returned home on December 9 and 10. Accordingly, it would appear that the complainant=s apartment was burglarized twice: once on December 8 when the American Express card was stolen, and once on December 9 when the complainant came home and surprised the intruder. In support of his argument that there is evidence to support submission of the lesser-included offense, appellant points to (1) an unidentified palm print discovered near the window, which appellant claims could have been left by a second burglar who committed the murder, and (2) the unknown Hispanic male seen using the credit card in the Chase Bank surveillance video.
Appellant=s argument fails because although evidence regarding the December 8 burglary was introduced at trial, it was a completely separate offense. The indictment charged appellant with committing murder in the course of committing a burglary on December 9. Therefore, appellant was entitled to a lesser-included offense instruction on burglary of a habitation if some evidence showed he committed only a burglary on December 9, but not the accompanying murder. The evidence to which appellant points merely supports the inference that someone else committed both the burglary and murder on December 9. It does not tend to show that appellant may have committed only the December 9 burglary but not the accompanying murder. Because the evidence at trial merely tended to show appellant may have committed a separate offense from the one for which he was charged, we conclude he was not entitled to an instruction on burglary of a habitation. See id.; see also Hayward v. State, 158 S.W.3d 476, 479B80 (Tex. Crim. App. 2005) (concluding appellant who claimed she merely struck complainant with fists and someone else stabbed complainant was not entitled to lesser-included offense instruction on assault because hitting with fists was a separate crime not alleged in indictment); Campbell v. State, 149 S.W.3d 149, 155B56 (Tex. Crim. App. 2004) (holding evidence did not support lesser-included offense instruction because evidence that appellant claimed could prove lesser offense actually proved a separate crime from offense for which appellant was charged).[2] We overrule appellant=s first issue.
III. Sufficiency of the Evidence
In his second and third issues, appellant contends the evidence is legally and factually insufficient to show that he caused the death of the complainant by striking him with a baseball bat or an unknown object. In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Salinas, 163 S.W.3d at 737. We accord great deference Ato the responsibility of the trier of fact [to fairly] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.@ Jackson v. Virginia, 443 U.S. 307, 319 (1979). We presume that any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we defer to that resolution. See id. at 326.
In evaluating the factual sufficiency of the evidence, we view all the evidence in a neutral light and will set aside the verdict only to prevent manifest injustice. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We apply a two-prong test to determine whether there is some objective basis for finding that (1) the evidence in support of the jury=s verdict, although legally sufficient, is nevertheless so weak that the verdict seems clearly wrong and unjust, or (2) in considering conflicting evidence, the verdict, albeit legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Id. at 414B15. Although a factual sufficiency review authorizes an appellate court to act in the capacity of a so‑called Athirteenth juror,@ due deference must be accorded the fact finder=s determinations, particularly those determinations concerning the weight and credibility of the evidence. See id. at 416B17; Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000).
Appellant argues the evidence is insufficient because at trial the State presented evidence that appellant used a lamp as the murder weapon, but the indictment and jury charge alleged that he used either a baseball bat or an unknown object to murder the complainant. When multiple theories are submitted to the jury, the evidence is sufficient to support a conviction so long as the evidence is sufficient to support a conviction for one of the theories submitted. Guevara v. State, 152 S.W.3d 45, 52 (Tex. Crim. App. 2004).
Robert Gutierrez, a crime scene investigator for the Houston Police Department, testified that during the course of his investigation, the officers determined that the complainant was bludgeoned to death with a lamp. Crime scene pictures showed that a lamp covered with blood was found next to the complainant=s body. Gutierrez testified that he was able to compare the shape of the lamp base with the complainant=s injuries. However, both Randy and Jesse, the inmates in whom appellant confided, testified that appellant claimed he used a baseball bat to kill the complainant and that he could tell the inmates where the bat was hidden. Dr. Albert Chu, the medical examiner who performed the autopsy on the complainant, testified that the cause of death was blunt force head trauma caused by a blunt object. Dr. Chu also testified that either a baseball bat or a lamp could have caused the injuries, but that he could not tell from the injuries exactly what type of object was used.
The jury is the exclusive judge of the credibility of witnesses and of the weight to be given testimony, and it is within the exclusive province of the jury to reconcile conflicts in the evidence. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The jury may have chosen to reconcile the conflict between Gutierrez=s testimony and the inmates= testimony by concluding that the murder weapon was a baseball bat. In addition, Dr. Chu testified that a baseball bat could have caused the injuries. Because there is evidence from which a rational jury could have determined that a baseball bat was used to murder the complainant, and because this determination is not manifestly unjust, we conclude that the evidence is legally and factually sufficient to support appellant=s conviction. See Guevara, 152 S.W.3d at 52; Ledee v. State, No. 14‑04‑01018‑CR, 2005 WL 3359714, at *2 (Tex. App.CHouston [14th Dist.] Dec. 6, 2005, no pet.) (not designated for publication) (sustaining conviction where indictment alleged defendant used either his Ahands@ or an Aunknown object@ because evidence was sufficient to support one theory charged). We overrule appellant=s second and third issues.
IV. Special Issue Regarding Use of a Deadly Weapon
In his fifth issue, appellant claims the trial court erred in submitting a special issue regarding the use or exhibition of a deadly weapon because appellant did not receive notice that the State intended to seek a finding on the use of a deadly weapon. In his fourth issue, appellant claims submission of the special issue amounted to an impermissible comment on the weight of the evidence by the trial court.
A defendant is entitled to notice that the State will seek an affirmative finding that a deadly weapon was used during the commission of the charged crime. Brooks v. State, 847 S.W.2d 247, 248 (Tex. Crim. App. 1993) (en banc) (per curiam). Such notice need not be contained in the indictment under which the defendant is ultimately tried. Id. The defendant is simply entitled to notice in writing that the use of a deadly weapon will be a fact issue at the time of prosecution. Id. Here, the indictment alleged that while in the course of committing or attempting to commit a burglary of a habitation, appellant intentionally caused the death of the complainant by striking the complainant with a baseball bat or an unknown object. Any allegation that a death was caused by a named weapon or instrument necessarily includes an allegation that the named weapon or instrument was capable of causing death in the manner it was used. Ex parte Beck, 769 S.W.2d 525, 526 (Tex. Crim. App. 1989). Accordingly, the indictment gave appellant sufficient notice that the State would attempt to prove that a baseball bat or an unknown object was used as a deadly weapon. See id. at 526B27 (holding indictment charging appellant with causing death by shooting individual with a gun provided sufficient notice that weapon alleged was a deadly weapon and that appellant=s use of deadly weapon would be an issue in State=s murder prosecution). We overrule appellant=s fifth issue.
Having determined that appellant received proper notice that the State intended to seek a deadly weapon finding, we turn now to appellant=s fourth issue. Appellant argues that the trial court improperly commented on specific evidence by submitting a special issue regarding the use or exhibition of a deadly weapon. The special issue submitted to the jury read in part, ADo you the Jury find beyond a reasonable doubt that the defendant used or exhibited a deadly weapon, namely, a baseball bat or an unknown object, during the commission of the offense for which he has been convicted . . . ?@ Appellant contends that by ignoring the evidence that a lamp was possibly used as a murder weapon, the trial court enhanced the credibility of the inmates who testified that appellant admitted to using a baseball bat by telegraphing to the jury that the trial court believed the inmates= testimony.
The jury charge should state the law applicable to the case, without expressing or intimating any opinion as to the weight of the evidence or the credibility of the statements made by the witnesses or the party accused. See Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007); Russell v. State, 749 S.W.2d 77, 78 (Tex. Crim. App. 1988). A charge improperly comments on the evidence if it Aassumes the truth of a controverted issue.@ See Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim. App. 1986); Jackson v. State, 105 S.W.3d 321, 326 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d). Because appellant did not timely object to the special issue at trial, the error, if any, does not require reversal unless it was so egregious and created such harm that appellant was denied a fair trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). When a complaint is made that the charge comments on the weight of the evidence, we review the charge as a whole rather than parts of the charge standing alone. See Whaley, 717 S.W.2d at 32. The actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and the weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171. Errors resulting in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defense theory. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).
The evidence shows that either a baseball bat or a lamp was used to murder the complainant. Neither the prosecution nor the defense mentioned the special issue during closing argument. The special issue defined Adeadly weapon@ for the jury and asked the jury to determine whether appellant used or exhibited a baseball bat or an unknown object in the murder of the complainant, tracking the language of the indictment. The trial court made no other comments regarding the inmates= testimony or emphasizing evidence that a baseball bat was used. Accordingly, we find that the special issue merely directed the jury=s attention to the fact that a baseball bat or an unknown object were the weapons for which the State sought an affirmative finding, and the trial court did not impermissibly comment on the weight of the evidence by not including a lamp as a possible deadly weapon in the special issue. See Jackson v. State, No. 05‑06‑01127‑CR, 2008 WL 2548812, at *2 (Tex. App.CDallas June 26, 2008, no pet. h.) (mem. op., not designated for publication) (holding that telling jury special issue instruction was on last page of jury charge was not an impermissible comment on weight of evidence because trial court made no statement showing bias in presentation of deadly weapon issue to jury); Hancock v. State, No. 11‑95‑001‑CR, 1996 WL 33650186, at *1B2 (Tex. App.CEastland Jan. 17, 1996, no writ) (not designated for publication) (holding special issue that tracked language of indictment and alleged appellant used Aa bridge, a rock, his fist, his foot or another object unknown@ to assault the complainant did not inform jury that any particular weapon had been used and therefore was not impermissible comment on weight of evidence).
Moreover, because a lamp was not mentioned in the indictment, inclusion of a lamp as a possible murder weapon in the special issue would actually have drawn attention to the evidence that a lamp was used. Such an instruction would not have been neutral, and the trial court would have improperly commented on the weight of the evidence by including the instruction. See Matamoros v. State, 901 S.W.2d 470, 477 (Tex. Crim. App. 1995) (stating in regard to denial of request for charge instruction on DNA evidence reliability, AEven a seemingly neutral instruction about a particular type of evidence constitutes an impermissible comment on the weight of the evidence in violation of Art. 36.14 because such an instruction singles out a particular piece of evidence for special attention.@); see also Wilson v. State, No. 13‑04‑00298‑CR, 2007 WL 1559104, at *2 (Tex. App.CCorpus Christi May 31, 2007, pet dism=d) (mem. op., not designated for publication) (holding refusal of defendant=s request for jury instruction that trial court was not vouching for accuracy of videotape played into evidence was not error because such instruction was not neutral and singled out videotape for special attention). We overrule appellant=s fourth issue.
We affirm the trial court=s judgment.
/s/ Leslie B. Yates
Justice
Judgment rendered and Memorandum Opinion filed August 21, 2008.
Panel consists of Justices Yates, Anderson, and Brown.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] A person commits capital murder if he intentionally and knowingly causes the death of an individual while in the course of committing or attempting to commit burglary. Tex. Penal Code Ann. __ 19.02(b)(1), 19.03(a)(2) (Vernon 2003 & Supp. 2007).
[2] Appellant relies on Curtis v. State, 89 S.W.3d 163, 179 (Tex. App.CFort Worth 2002, pet. ref=d) for his argument that he was entitled to a lesser-included offense instruction on burglary of a habitation. The defendant in Curtis was convicted of capital murder. Id. at 166. On appeal, the court found that because evidence showed the defendant could have sexually assaulted the complainant days or hours before her murder and that more than one person had entered the complainant=s apartment the night of the murder, the trial court should have instructed the jury on the lesser-included offenses of sexual assault and aggravated sexual assault. Id. at 179. Curtis is distinguishable because unlike the instant case, the defendant in Curtis claimed he had committed a lesser version of the crime for which he was charged. Id. at 178. In contrast, appellant claims he is completely innocent of the crime for which he was charged, capital murder on December 9, 2005, and argues instead that he is guilty of a separate offense for which he was not charged, burglary on December 8, 2005. We therefore find appellant=s reliance on Curtis misplaced.