COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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ARNOLD BARNES III, No. 08-10-00114-CR
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Appellant, Appeal from
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v. 371st District Court
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THE STATE OF TEXAS, of Tarrant County, Texas
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Appellee. ' (TC # 1154502d)
OPINION
Arnold Barnes III appeals his conviction of murder. Appellant was indicted for the
offense of capital murder, but a jury found him guilty of the lesser-included offense of murder
and assessed his punishment at imprisonment for a term of seventy-five years. We affirm.
FACTUAL SUMMARY
On April 11, 2009, Ronnie Roberts and his family were staying with Brian Keith Roscoe
in his apartment. Roberts and Roscoe left the apartment during the evening to get take-out
dinner. As they were walking to Roscoe’s truck in the parking lot, Roberts heard someone
behind him say, “Hey fellows, I need your wallets.” Roberts turned around and saw a man, later
identified as Appellant, holding a handgun. When Roberts was facing him, Appellant pulled
back the hammer on the gun. Roberts could not see Appellant’s face because he was wearing a
gray hoody that concealed his head and face. Frightened that Appellant would kill him, Roberts
gave the man all of the money he had. Roscoe, who was six feet seven inches tall and weighed
approximately 492 pounds, turned and said, “Are you f-----g kidding me?” Appellant replied,
“No, times are hard.” Roscoe threw his wallet at Appellant and charged him in an effort to grab
the gun. Appellant began shooting and Roscoe fell to the ground. Roberts ran back to the
apartment and yelled for someone to call 911. Roberts went back to assist Roscoe and found him
lying on his stomach and holding one hand to his neck in an effort to staunch the flow of blood.
Appellant had fled the scene. Roberts and other onlookers attempted to assist Roscoe, but he
was not breathing and did not have a pulse when the paramedics arrived. Roscoe was
pronounced dead shortly after arriving at the hospital.
Dr. Lloyd White, a forensic pathologist employed as a deputy medical examiner,
performed the autopsy. He determined that Roscoe had been shot five times. Three bullets
struck him in the thigh and one bullet grazed his abdomen. The fatal injury resulted from a
gunshot which entered near the chin, traveled under the skin along the jaw and continued down
into the neck and through the trachea where it caused a massive disruption of the trachea. The
bullet then traveled into the right side of the chest where it penetrated the root of the lung,
causing a disruption of the bronchial tubes and major blood vessels. Upon leaving the root of the
lung, the bullet continued through the diaphragm and into the liver. Dr. White retrieved a large
caliber slug from the liver and another from the thigh.
The police determined that a cell phone found near Roscoe’s body belonged to
Appellant’s girlfriend, Clintressa Stewart. Stewart testified that she and Appellant had driven to
the apartment complex in order to buy marihuana from a man they knew as “Black.” Stewart
waited in the car while Appellant went to buy the marihuana. After a while, Stewart heard
gunshots and then saw Appellant running toward the car. When he climbed inside, Appellant
told her he had just shot somebody and they had to leave. They returned home and later realized
that they did not have the cell phone. They drove back to the apartment complex to look for it,
but soon left because police officers were everywhere. Appellant threw away the shoes he had
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been wearing and went to stay with his brother at Prairie View A & M. When Stewart learned
that the police had been to her mother’s house looking for her, she decided to talk to the police.
Appellant testified in his own defense. He explained that he went to the apartment
complex with the intent to rob someone because he needed money, but he did not intend to shoot
anyone. He had purchased the handgun from a guy named “Black.” He had never fired the gun
and did not know whether it had bullets. He saw Roberts and Roscoe walking together and
approached them with the hood of his sweatshirt pulled up to conceal his face. He said, “I need
your wallets” while he held the gun at his hip. Appellant denied pulling back the gun’s hammer
or pointing it at either man. After Roberts gave him some money, he walked toward Roscoe and
said, “I need your wallet.” Appellant denied any intent to harm Roscoe. Roscoe started walking
toward him while Roberts was yelling, “He’s got a gun, he’s got a gun.” Appellant took a step
backwards and Roscoe said, “Are you f-----g kidding me?” Appellant told him that times were
hard and Roscoe reached into his pocket and pulled out his wallet. When Appellant reached for
it, Roscoe dropped the wallet, grabbed Appellant’s left hand with one hand, and grabbed the gun
with the other. As they struggled for the gun, Appellant was bent forward with his head down
such that he could only see the pavement. The gun discharged next to Appellant’s head even
though he had not pulled back the hammer and his finger was not on the trigger. Appellant got
scared when the gun fired by his head, and although he squeezed the trigger several times, he did
not aim the gun at Roscoe. He quit firing when Roscoe let go of him and fell, and Appellant
immediately ran back to the car. He took off the hoody and threw it down because he thought
someone was following him. Appellant told the jury that although he had committed an act
clearly dangerous to human life, he did not intend to cause Roscoe’s death. The jury found
Appellant guilty of the lesser included offense of murder.
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IMPROPER IMPEACHMENT
In two related points of error, Appellant contends that the trial court erred by denying his
motions for mistrial when the prosecutor improperly impeached him by asking him the details
about a prior conviction. The State responds that the trial court’s instructions to disregard were
sufficient to prevent the jury from being unfairly prejudiced against Appellant.
Standard of Review
A mistrial is a device used to halt trial proceedings when error is so prejudicial that
expenditure of further time and expense would be wasteful and futile. Ladd v. State, 3 S.W.3d
547, 567 (Tex.Crim.App. 1999). A trial court may properly exercise its discretion to declare a
mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached
but would have to be reversed on appeal due to an obvious procedural error. Id. The asking of
an improper question will seldom call for a mistrial because, in most cases, any harm can be
cured by an instruction to disregard. Id. A mistrial is required only when the improper question
is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of
withdrawing the impression produced on the minds of the jurors. Id. We review the trial court’s
denial of a request for mistrial under an abuse of discretion standard. Id. To determine whether
a trial court abused its discretion in denying a defendant’s motion for a mistrial, we consider
three factors: (1) the severity of the misconduct; (2) the measures adopted to cure the misconduct
(the efficacy of any cautionary instruction by the trial court); and (3) the certainty of conviction
absent the misconduct (the strength of the evidence supporting the conviction). Hawkins v.
State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004).
Question Regarding Revocation
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Appellant’s first point of error relates to the following exchange during the prosecutor’s
cross-examination of Appellant:
Q: Let’s talk about your criminal history, Arnold. In case number 0825155,
which was in Criminal District Court Number Two of Tarrant County, you were
convicted of the offense of theft from person; isn’t that correct?
A: Yes, ma’am.
Q: In that offense, on the 1st day of November 2001, you unlawfully
appropriated by acquiring or otherwise exercising control over property, a purse,
from the person of the owner, Brenda Furry, with intent to deprive her of the
property; isn’t that correct?
A: Yes, ma’am.
Q: So you stole a woman’s purse in 2004, right?
A: No, I stole a woman’s purse in 2000.
Q: Okay.
A: I was on probation, and I didn’t get the conviction until I did four years’
probation, and they revoked my probation.
Q: And the reason that your probation was revoked was because your drug test
came back positive, correct?
[Defense counsel]: Your Honor, I’m going to object. That’s not proper
impeachment. He’s admitted that he’s had a prior conviction.
[The Court]: Sustained.
[Defense counsel]: And I’d ask you to instruct the jury to disregard that last
question.
[The Court]: The jury will disregard the last question of prosecutor.
[Defense counsel]: And I’ll ask for a mistrial.
[The Court]: Denied.
Appellant asserts that the prosecutor’s question apprised the jury of two criminal events
which were not admissible under TEX.R.EVID. 609: Appellant’s illegal use of drugs and his
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violation of probation. While the prosecutor’s question was improper, it does not constitute
severe misconduct. The jury had already heard evidence related to Appellant’s drug use because
his girlfriend, Clintressa Stewart, testified without objection that they went to the apartment
complex to buy a “sack” of marihuana from a man they knew as “Black” and they had purchased
marihuana from him in the past. Further, it was Appellant who informed the jury through his
non-responsive answer to the prosecutor’s question that his probation had been revoked. The
trial court immediately instructed the jury to disregard the question. On appeal, we generally
presume that the jury followed the trial court’s instructions. Thrift v. State, 176 S.W.3d 221,
224 (Tex.Crim.App. 2005). The presumption is rebutable, but the appellant must point to
evidence that the jury failed to follow the trial court’s instructions. Id. Given that the jury found
Appellant guilty of the lesser-included offense of murder, it is readily apparent that the jury
found Appellant’s testimony credible. We conclude that the prosecutor’s question did not cause
him any prejudice which could not be cured by the court’s prompt instruction to disregard. See
Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000)(“Ordinarily, a prompt instruction to
disregard will cure error associated with an improper question and answer, even one regarding
extraneous offenses.”). Finally, there is substantial evidence supporting the murder conviction.
In addition to the physical evidence which linked Appellant to the crime, Stewart testified that
Appellant told her he had shot someone, Appellant admitted that he pulled the gun’s trigger
several times as he and Roscoe struggled over the gun, and he stopped shooting only when
Roscoe let go of him. We conclude that the trial court did not abuse its discretion by denying
the motion for mistrial. Point of Error One is overruled.
Question Regarding Prior Conviction
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In Point of Error Two, Appellant argues that the court abused its discretion by denying
his motion for mistrial when the prosecutor asked Appellant the following question about his
prior theft conviction: “And in that case, that involved you taking something from someone that
didn’t belong to you, correct?” The trial court sustained Appellant’s objection that it was
improper impeachment, instructed the jury to disregard the prosecutor’s question, but denied the
motion for mistrial. The State first responds that there was no prejudicial effect from the
question because the jury had just heard evidence that the prior theft conviction involved
Appellant taking a woman’s purse without her consent. Even if the question had some
prejudicial effect, we presume that the jury followed the trial court’s instruction to disregard it.
See Thrift, 176 S.W.3d at 224. Again, we observe that the jury’s decision to acquit Appellant of
capital murder and find him guilty of the lesser-included offense of murder indicates that the jury
found Appellant’s testimony credible. Under these facts, we cannot conclude that the
prosecutor’s question resulted in incurable prejudice. Point of Error Two is overruled.
LESSER INCLUDED OFFENSE OF MANSLAUGHTER
In his final point of error, Appellant argues that the trial court erred by refusing to submit
a jury charge on the lesser included offense of manslaughter. A trial court’s decision to submit
or deny an instruction on a lesser-included offense is reviewed for an abuse of discretion.
Threadgill v. State, 146 S.W.3d 654, 666 (Tex.Crim.App. 2004). The Texas Code of Criminal
Procedure provides 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.”
TEX.CODE CRIM.PROC.ANN. art. 37.09(1)(West 2006). We utilize a two-pronged test to
determine whether a charge on a lesser-included offense should be given: (1) Is the requested
charge for a lesser-included offense of the charged offense? (2) Is there trial evidence that
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supports giving the instruction to the jury? Rice v. State, 333 S.W.3d 140, 144 (Tex.Crim.App.
2011); McKinney v. State, 207 S.W.3d 366, 370 (Tex.Crim.App. 2006).
The first step is to determine whether the lesser-included offense is included within the
proof necessary to establish the offense charged. Rice, 333 S.W.3d at 144; Hall v. State, 225
S.W.3d 524, 531 (Tex.Crim.App. 2007). This is a question of law, and it does not depend on the
evidence to be produced at trial. Rice, 333 S.W.2d at 144. Texas has adopted the cognate
pleadings approach to the first step of the lesser included offense analysis: “the elements and the
facts alleged in the charging instrument are used to find lesser-included offenses.” Rice, 333
S.W.3d at 144, quoting Hall, 225 S.W.3d at 535. The first prong is satisfied if the indictment
for the greater-inclusive offense either: (1) alleges all of the elements of the lesser-included
offense, or (2) alleges elements plus facts (including descriptive averments, such as non-statutory
manner and means, that are alleged for purposes of providing notice) from which all of the
elements of the lesser-included offense may be deduced. Ex parte Watson, 306 S.W.3d 259, 273
(Tex.Crim.App. 2009).
The indictment alleged that Appellant, during the course of committing or attempting to
commit a robbery, intentionally caused the death of Brian Keith Roscoe. See TEX.PENAL
CODE ANN. § 19.03(a)(2)(West Supp. 2011). A person commits manslaughter if he recklessly
causes the death of an individual. TEX.PENAL CODE ANN. § 19.04 (West 2011).
Manslaughter is a lesser included offense of capital murder. Mathis v. State, 67 S.W.3d 918, 925
(Tex.Crim.App. 2002).
The second step of the lesser-included-offense analysis is to determine if there is some
evidence in the record which would permit a jury to rationally find that, if the defendant is guilty,
he is guilty only of the lesser-included offense. Rice, 333 S.W.3d at145; Mathis, 67 S.W.3d at
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925. In other words, the evidence must establish the lesser-included offense as a valid, rational
alternative to the charged offense. Rice, 333 S.W.3d at 145; Wesbrook v. State, 29 S.W.3d 103,
113 (Tex.Crim.App. 2000). If facts are elicited during trial that raise an issue of the lesser-
included offense, and the charge is properly requested, then a charge must be given. Ross v.
State, 861 S.W.2d 870, 877 (Tex.Crim.App. 1993)(op. on reh’g.).
To raise the issue of manslaughter, the trial record must contain evidence of lack of intent
to kill and evidence that appellant acted recklessly. Mays v. State, 318 S.W.3d 368, 387
(Tex.Crim.App. 2010); Arnold v. State, 234 S.W.3d 664, 673 (Tex.App.--Houston [14th Dist.]
2007, no pet.). A person acts recklessly when he is aware of but consciously disregards a
substantial and unjustifiable risk that the result will occur. TEX.PENAL CODE ANN. §
6.03(c)(West 2011). There must be affirmative evidence in the record that when Appellant
pulled the gun’s trigger four times that (1) he did not intend to cause death or know that death
was reasonably certain to occur; and (2) he consciously disregarded the risk that he would cause
death. See Mays, 318 S.W.3d at 387.
In support of his argument that he acted recklessly, Appellant points to his testimony that
he did not aim the gun at Roscoe, he did not pull back the hammer, he did not have his finger on
the trigger when the first shot was fired, and he did not intend to harm or kill Roscoe. Appellant
admitted squeezing the trigger the other four times the weapon discharged. He specifically
testified that he committed an act clearly dangerous to human life by shooting the gun and he
knew when he fired the gun that Roscoe was right in front of him and would be hit by the
gunfire. He also knew that a single shot could kill a person. Appellant testified that he stopped
shooting the gun only when Roscoe let go of him and fell to the ground. Appellant’s statements
that he did not aim at Roscoe or intend to harm or kill him are not considered in a vacuum but
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must be considered with his testimony that he pulled the trigger four times knowing that Roscoe
would be hit by the gunfire and it takes only one shot to kill a person. Appellant’s testimony
certainly raises the lesser included offense of murder under Section 19.02(b)(1)1 but it does not
show that Appellant acted only recklessly. See Arnold, 234 S.W.3d at 672-73 (evidence did not
warrant instruction on lesser included offense of manslaughter in murder prosecution;
defendant’s isolated statements that he was not aiming gun at victim and did not intend to kill
victim did not constitute evidence upon which a jury could rationally find that defendant’s
actions were merely reckless where defendant testified that he intentionally fired the weapon at
the victim). The trial court did not err by denying the requested instruction. We overrule Point
of Error Two and affirm the judgment of the trial court.
April 4, 2012 ________________________________________________
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, and Antcliff, JJ.
(Do Not Publish)
1
A person commits murder if he intentionally or knowingly causes the death of an individual. TEX.PENAL CODE
ANN. § 19.02(b)(1)(West 2011). A person acts knowingly if he is aware his conduct is reasonably certain to cause
the result. TEX.PENAL CODE ANN. § 6.03(b)(West 2011).
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