Affirmed and Memorandum Opinion filed March 27, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-06-00827-CR
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WILLIE ANN BURTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 1045025
M E M O R A N D U M O P I N I O N
A jury convicted appellant Willie Ann Burton of manslaughter, and the trial court sentenced her to twenty years confinement in the Texas Department of Criminal Justice, Institutional Division. In three issues, appellant contends that the trial court committed harmful error by overruling her objection to the inclusion of the lesser offense of manslaughter in the jury charge and by denying her Batson challenge to the jury. We affirm.
I. Factual and Procedural Background
In the late evening and early morning of January 3rd and 4th, 2005, appellant was working at her brother=s bar in the Northeast Houston area on Cavalcade Street. The decedent, Jaquana Singleton, and several of her family members came into the bar while they were celebrating her step-father=s birthday. Before the last call for alcohol at midnight on January 3, the decedent and her family noticed that her mother=s purse was missing. During the family=s search for the purse, the decedent and appellant began cursing at each other and calling each other names. The decedent=s mother went outside the bar to check the trash for her purse; the decedent and at least two others, including her sister, remained inside the bar.
At this point, the stories of the witnesses diverge. According to the decedent=s family and friends who testified at appellant=s trial, the decedent was near the door of the bar, in the process of leaving with her family (although she continued to engage appellant verbally). According to appellant and the witnesses for her defense, the decedent ran at appellant with her fist raised in a threatening manner. Regardless of the truth of the parties= stories, the witnesses agree about what happened next: appellant shot the decedent, hitting her in the chest. The decedent died at the scene, apparently quite quickly after being shot; the record does not reflect that any attempts were made to resuscitate her by any of the witnesses or by paramedics or other emergency personnel.[1] Several officers arrived at the scene and began investigating the incident. Appellant never fled the scene or otherwise attempted to deny that she shot the decedent. She spoke with an investigator at the scene and admitted shooting the decedent, claiming that she did so in self-defense. Appellant was arrested and later indicted for murder.
During her trial, appellant relied on a theory of self-defense. On direct examination, she testified to the events leading up to the shooting as follows, A[The decedent] was coming toward me like she was going to do me some bodily harm or hurt me or kill me.@ Appellant described the shooting in some detail, repeatedly indicating she didn=t aim the gun:
That=s when she come at me, and I had the pistol in my back pocket. When she got close, I just pulled it and I didn=t aim it. I just shot it.
. . .
I didn=t have any time to aim the gun. She was right up on me.
. . .
I just pulled [the gun] out and shot it. I didn=t aim.
When questioned about her purpose in shooting at appellant, she indicated she was just Atrying to scare her@ and that she was in fear of death or serious bodily injury from the decedent. Finally, she testified that shooting the gun was immediately necessary to protect herself from the attack to keep her from being seriously injured or killed.
On cross-examination, appellant reiterated that she did not aim the gun:
The State: And when [the decedent], according to you, attacked you, you pointed the gun at her, right?
Appellant: I pulled the gun out and pulled the trigger, sir. I didn=t point it. I didn=t have time to point it.
The State: You didn=t point it at her?
Appellant: I pulled the trigger B the gun out of my back pocket and shot it.
The State: Where were you aiming?
Appellant: I just shot it.
The State: You just shot it?
Appellant: When it B come up and I just shot it. I wasn=t aiming at anything.
When pressed, she again stated that she was just Atrying to scare@ the decedent and she A[j]ust pulled [the gun] out and just fired.@ In response to questioning by the State regarding what she thought would happen to the person at whom she shot the gun, appellant stated, AI didn=t have no thoughts about it because I was really trying to scare [the decedent] away from me. I wasn=t trying to shoot her.@ But appellant admitted that shooting a gun at someone is an act clearly dangerous to human life. The following exchange occurred after this admission:
The State: My question to you, ma=am, is: You knew that shooting a gun in the direction of somebody could cause their death, didn=t you?
Appellant: Yes, if I strike it. [sic]
The State: But you=re claiming that you were just trying to scare her.
Appellant: That=s all I was trying to do, sir.
The State: You=re saying you were trying to, like, warn her or get her to stop running at you?
Appellant: I didn=t know.
. . .
The State: Do you remember telling [the officer who took your statement at the scene] when he asked you whether you pulled the gun to warn her, ANo you didn=t@?
Appellant: I didn=t B I pulled out the gun and shot, sir. I didn=t know what to do. I was not trying to shoot her. I was trying to scare her off.
Finally, when the State questioned appellant regarding what she told her brother immediately after the shooting, she replied, AI=m sorry, brother. I just shot her. I didn=t know what she was going to do to me.@
After both sides rested and closed, the trial court held a charge conference outside the presence of the jury. Appellant=s counsel objected to the inclusion of manslaughter in the charge, stating:
Defense=s position, one, your Honor, it=s not raised by the evidence; and, two, that it=s in conflict with the other part of the charge, the murder itself in self-defense. It=s conflicting charges that will only confuse the jurors. And for those reasons, your Honor, we object to the manslaughter portion of the charge being included.
Over defense counsel=s objection, the trial court included the definition of manslaughter in the charge. The jury convicted appellant of manslaughter, and the trial court sentenced her to twenty years confinement. This appeal timely followed.
II. Issues Presented
In her first issue, appellant contends the trial court committed reversible error by submitting a charge on manslaughter. In her second and third issues, appellant asserts she was denied her United States constitutional right to equal protection because the State used two of its seven peremptory challenges in a racially discriminatory manner.
III. Analysis
A. Lesser-Included Offense Charge
In reviewing a claim of charge error, we must first determine whether error exists. Druery v. State, 225 S.W.3d 491, 504 (Tex. Crim. App. 2007). If we conclude that there is error in the charge, we then determine whether the error caused sufficient harm to require reversal. Id. Where, as here, error has been properly preserved by an objection to the charge, we will reverse so long as the error is not harmless. Id. Under this standard, we must reverse if there is any harm, regardless of the degree of harm. Id.
A charge on a lesser-included offense is warranted when (1) the offense is actually a lesser-included offense of the offense charged, and (2) there is some evidence in the record that would permit a rational jury to find the defendant guilty only of the lesser offense. McKinney v. State, 207 S.W.3d 366, 370(Tex. Crim. App. 2006); Arnold v. State, 234 S.W.3d 664, 670B71 (Tex. App.CHouston [14th Dist.] 2007, no pet.). Neither party disputes that manslaughter is a lesser-included offense of murder. The only difference between the two offenses is the mental state required. Arnold, 234 S.W.3d at 671. Murder requires knowing or intentional conduct, which means either (a) a conscious desire to engage in the conduct causing the result, or (b) an awareness that the conduct is reasonably certain to cause the result. See id.; see also Tex. Penal Code Ann. '' 19.02(b)(1), 6.03(a)B(b) (Vernon 2003).
In contrast, manslaughter is defined as recklessly causing the death of an individual, which means being aware of but consciously disregarding a substantial and unjustifiable risk that the result of the conduct will occur. See Arnold, 234 S.W.3d at 671; Tex. Penal Code Ann. '' 19.04(a), 6.03(c). Thus, the second prong of the test for inclusion of the lesser-included instruction is satisfied if there is some evidence from which a rational juror could find that appellant consciously disregarded the substantial and unjustifiable risk that her conduct would cause the decedent=s death, rather than finding (1) it was appellant=s conscious objective or desire to cause the decedent=s death, or (2) appellant was aware that her conduct was reasonably certain to cause the decedent=s death. Anything more than a scintilla of evidence is sufficient to entitle a party to a charge on a lesser-included offense. Ferrel v. State, 55 S.W.3d 586, 589 (Tex. Crim. App. 2001).
Appellant asserts that her claim of self-defense precluded the trial court from submitting the manslaughter instruction because one cannot accidentally or recklessly act in self-defense. See, e.g., Martinez v. State, 16 S.W.3d 845, 848 (Tex. App.CHouston [1st Dist.] 2000, pet. ref=d); Avila v. State, 954 S.W.2d 830, 843 (Tex. App.CEl Paso 1997, pet. ref=d); Johnson v. State, 915 S.W.2d 653, 659 (Tex. App.CHouston [14th Dist.]1996, pet. ref=d). But if some evidence appears in the record supporting the submission of both self-defense and manslaughter, the trial court may submit both issues to the jury. O=Brien v. State, 89 S.W.3d 753, 755B56 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d); see also Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998) (en banc) (stating that if there is evidence that raises a lesser-included offense, an instruction on the lesser offense should be given even if the evidence does not fit in with the larger theme of the defendant=s testimony); Ford v. State, 38 S.W.3d 836, 840 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d) (A[T]he trial court is authorized to sua sponte include a charge on a lesser offense; a trial court is not restricted to submitting lesser included offenses only when the defendant has properly requested them.@).
In this case, appellant admitted she shot the gun intentionally. But she also asserted that she did not intend to shoot the decedent and was instead trying to warn her off or scare her. She further stated that she did not aim the gun and just Ashot it.@ She agreed that shooting a gun in a person=s direction is a dangerous act that could cause that person=s death, but qualified her response by stating such an act would cause death only if she hit the person at whom she had shot. Based on this evidence, a rational juror could have concluded that appellant consciously disregarded the substantial and unjustifiable risk that her conduct would cause the decedent=s death. See Arnold, 234 S.W.3d at 671 (noting that courts typically conclude Aa manslaughter instruction [is] required based on some evidence that the gun discharged accidentally or that the defendant only intended to frighten the complainant@); see also O=Brien, 89 S.W.3d at 756 (determining that, because there was some evidence that the accused acted recklessly, he was entitled to a manslaughter charge). Thus, the trial court did not err by charging the jury on the lesser-included offense of manslaughter. We overrule appellant=s first issue.
B. The State=s Peremptory Challenges
An accused has a right to a trial by a jury whose members are selected in a racially‑neutral, nondiscriminatory manner. Batson v. Kentucky, 476 U.S. 79, 85B86, 106 S. Ct. 1712, 1717 (1986); Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon 2006) (codifying the Batson standard). We review a trial court=s ruling on a Batson challenge in the light most favorable to the ruling, giving deference to the trial court=s assessment of credibility and demeanor. Williams v. State, 804 S.W.2d 95, 101 (Tex. Crim. App. 1991) (en banc).
A Batson challenge generally gives rise to a three‑step process. First, the defendant must make a prima facie case that a veniremember was peremptorily excluded on the basis of race. Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). Next, the prosecution must come forward with race‑neutral reasons for the peremptory strike. Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003). The defendant then has the opportunity to rebut the State=s explanations. Id. The burden of persuasion remains with the defendant to prove purposeful discrimination and that the State=s race‑neutral explanations were pretextual. Johnson v. State, 68 S.W.3d 644, 649 (Tex. Crim. App. 2002). If the State offers a race‑neutral explanation before any inquiry on the prima facie case, the issue of a prima facie case is moot. Id.
A trial court=s decision on whether the opponent has proved a Batson claim turns, in part, on observations made during the voir dire examination. Young v. State, 826 S.W.2d 141, 145 (Tex. Crim. App. 1991) (en banc). The court=s determination of a Batson issue must be accorded great deference on appeal. Chambers v. State, 866 S.W.2d 9, 23 (Tex. Crim. App. 1993) (en banc). The United States Supreme Court explained that unless a discriminatory intent is inherent in the prosecutor=s explanation, the reason offered will be deemed race‑neutral. Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 1771 (1995) (per curiam); see also Guzman v. State, 85 S.W.3d 242, 246 (Tex. Crim. App. 2002) (en banc). An appellate court may reverse only if it is left with the Adefinite and firm conviction that a mistake has been committed.@ Hill v. State, 827 S.W.2d 860, 865 (Tex. Crim. App. 1992) (en banc) (quoting U.S. v. Hernandez, 887 F.2d 564, 567 (5th Cir. 1989)).
Here, appellant asserts that the State used two out of seven strikes to eliminate African-American jurors. The record reflects that appellant challenged the State=s decisions to strike jurors numbered 28 and 41. In response to appellant=s challenge to the State=s strike of juror number 28, the State asserted the following race neutral explanation:
Juror No. 28 is the Executive Director called [sic] the Caring Safe Place which doesn=t really give me the feeling B Number two, he showed criminal history that he had something in >98 out of the 183rd involving a theft. I don=t know if it was conviction and arrest, but it would be sufficient for me. I also B during my conversation with [another juror], they were placing importance on the area where the offense occurred. He indicated that he, in fact, would care very much about where the offense occurred; and that is why I struck Juror No. 28.
In response to appellant=s challenge to juror 41, the State explained:
Juror No. 41 is the juror who engaged in the conversation about where the offense occurred and how important it would be to know where the offense occurred. She=s the one who started that topic, where the offense occurred. If it was in a good neighborhood or a bad one; and for that reason, I struck her.
Appellant did not rebut either of these race-neutral explanations or otherwise attempt to establish that these explanations were pretextual. See Johnson, 68 S.W.3d at 649. Under these circumstances, we conclude that appellant has not established these veniremembers were excluded on the basis of race. We therefore overrule appellant=s second and third issues.
IV. Conclusion
We conclude that the trial court did not err by instructing the jury on the lesser-included offense of manslaughter. We further conclude that appellant has not established her United States constitutional right to equal protection was violated by the State=s use of its peremptory strikes. Therefore, we overrule appellant=s three issues and affirm the judgment of the trial court.
/s/ Eva M. Guzman
Justice
Judgment rendered and Memorandum Opinion filed March 27, 2008.
Panel consists of Justices Yates, Fowler, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The medical examiner later determined that the decedent=s death was caused by a A[g]unshot wound of left upper extremity and torso with perforation of heart, liver, and lung@; the bullet grazed the inside of the decedent=s upper left arm and then entered the upper left side of her chest and exited the lateral right side of her torso Aa little bit towards the back.@ Stippling was observed around the graze wound to the decedent=s arm. The direction of the shot to her chest was Aleft to right, front to back, and downward.@