Phillip Doyle Chaney v. State

NO. 07-08-0476-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

MAY 27, 2010

______________________________

PHILLIP DOYLE CHANEY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 50TH DISTRICT COURT OF COTTLE COUNTY;

NO. 2834; HONORABLE WILLIAM H. HEATLY, JUDGE

_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

OPINION

The contention that an injury can amount to a crime only when inflicted by
intention is no provincial or transient notion. It is as universal and
persistent in mature systems of law as belief in freedom of the human will
and a consequent ability and duty of the normal individual to choose
between good and evil.

Justice Robert H. Jackson, United States Supreme Court1

1
Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 92 L.Ed. 288 (1952).
 Appellant, Phillip Doyle Chaney, was convicted by a jury of murder with an

affirmative finding on use of a deadly weapon, to-wit: a firearm. Punishment was

assessed at twenty-three years confinement. By his original brief, Appellant presented

four points of error alleging error by the trial court (1) during jury selection by making

remarks to the panel reasonably calculated to benefit the State or prejudice him by

denying him his rights under article 35.15 of the Texas Code of Criminal Procedure; (2)

by overruling his objection to testimony by State's witness, Ranger Jay Foster,

regarding his intent to kill, thereby affecting his substantial rights; (3) in letting the jury's

verdict of murder stand and violating his rights in so doing because the evidence of his

intentional or knowing commission of murder is legally insufficient and (4) factually

insufficient.

Following submission of this appeal, this Court directed the parties to brief

unassigned error regarding the possibility of charge error in the definition of

"intentional" as it relates to the result oriented offense of murder.2 As a result of this

Court's directive, Appellant raised two additional points of error, to-wit: (5) the trial court

committed fundamental error that egregiously harmed him by erroneously defining the

culpable mental states of "intentional" and "knowing" in the abstract portion of the guilt-

innocence charge; and (6) the trial court violated his due process rights by allowing

inadmissible testimony and argument focusing on the intentional or knowing nature of

his conduct as opposed to the result of his conduct.

2
Murder is a "result of conduct" offense, which means that the culpable mental state focuses on the
result of the conduct, i.e., causing the death of an individual; as opposed to a "nature of conduct" offense
where the focus is on the conduct itself. Cook v. State, 884 S.W.2d 485, 491 (Tex.Crim.App. 1994).

2
 As to the first four points, the State contends the trial court did not err in its

remarks, Appellant did not preserve an objection as to Ranger Foster's testimony, and

the evidence was both legally and factually sufficient. As to the last two points, while

the State candidly concedes that the trial court erred by including the full statutory

definition of "knowingly" found in section 6.03(b) of the Texas Penal Code in the

abstract portion of the charge,3 it contends that Appellant did not suffer egregious harm

because the application paragraph of the court's charge correctly instructed the jury on

the appropriate mens rea. The State further contends that Appellant's allegations of

cumulative errors were unobjected to and thus not preserved for review. Finally, the

State contends Appellant's due process rights were not violated.

For the reasons to follow, we reverse the judgment of the trial court and remand

this matter for further proceedings consistent with this opinion.

Factual Background

In February 2005, when Appellant was eighteen years old, he began working as

a correctional officer for the Institutional Division of the Texas Department of Criminal

Justice at the T.L. Roach Unit in Childress, Texas. Appellant lived in Paducah with his

younger brother, Bo, and their mother. Two years later, on the afternoon of March 5,

2007, fifteen year old Lukas Taylor, the victim, and Christopher Dominguez, Jr. skipped

baseball practice, bought two marihuana joints, and drove to the Chaney home to

spend time with their friend Bo. Another friend, Presciliano Perez, arrived later.

3
Although the abstract portion of the Charge of the Court also included the full statutory definition of
"intentional" found in § 6.03(a) of the Texas Penal Code, the State does not concede that the trial court
erred in that respect.

3
 While Appellant was playing a video game, Lukas, who was sitting in a nearby

rocker recliner, opened Appellant's gun case, removed a .44 magnum handgun,

unloaded it, spun the cylinder, and admired it. Appellant repeatedly asked him to

reload the firearm and put it up. Eventually Lukas reloaded the firearm, but before he

was able to put it up,4 Appellant approached him, they struggled, and the firearm

discharged, shooting Lukas in the chest.

According to the eyewitnesses, Appellant was not angry and he and Lukas did

not argue or fight. Christopher testified that when Appellant was asking Lukas to put

the gun up, they were "joking around, mouthing off." During direct examination,

Christopher was asked whether Appellant or Lukas were "mad," to which he answered

"[n]o."

Appellant's brother, Bo, testified that when the struggle for the gun began, the

barrel of the gun was pointed toward a wall then speculated that the gun got turned

around during the struggle. None of the eyewitnesses saw whose finger was on the

trigger and forensics was unable to establish that fact.

After the shooting, Bo called 911 and began CPR on Lukas, while Appellant went

outside. The 911 call was made at 6:34 p.m. Law enforcement and emergency

personnel responded. Lukas was transported by ambulance to a hospital in Childress,

where he later died.

4
Presciliano testified that the victim put the gun up when asked, but took it out a second time without
unloading it.

4
 At approximately 7:01 p.m., Texas Department of Public Safety Trooper Keith

Bowles contacted Texas Ranger Jay Foster about the incident. Foster instructed

Bowles to secure the scene and the witnesses. Foster then contacted the Paducah

Chief of Police and advised him to inform Appellant that he was not under arrest.

Appellant was taken to the police department where he voluntarily gave a statement.5

At that time he was unaware that Lukas had died.

After Ranger Foster processed the scene, he went to the police department and

met with Appellant. Foster then began a month-long investigation which included

attending the autopsy, interviewing witnesses, emergency medical responders, and

emergency room personnel. Eventually, he obtained an arrest warrant for Appellant for

the offense of manslaughter.

Upon further investigation and interviews with Appellant's supervisor at the

Roach Unit and Sergeant Shannon Betts, the firearms instructor for correctional

officers, Ranger Foster became convinced that Appellant's conduct constituted murder

rather than manslaughter. Based upon Appellant's firearms training and experience,

and based upon Ranger Foster's understanding of the law as it pertained to the

culpable mental states of knowingly and recklessly, he concluded that Appellant should

5
According to Appellant's statement, he had recently acquired the .44 magnum and Lukas had admired it
on several occasions. In his statement, he wrote:

Lukas Taylor reached between my couch and shelves and got my pistol box which
contained a .44 magnum pistol inside a holster. Lukas Taylor then opend [sic] the pistol
holster. I then told Lukas Taylor to put the pistol up, but he didn't, so I continued to tell
Lukas Taylor to put up the .44 magnum. Lukas Taylor continued to hold the .44 magnum
so I got up to get it from Lukas Taylor and then Lukas Taylor pulled the .44 magnum
away from me and towards Lukas Taylor. Lukas Taylor had his hand around the grip and
finger on the trigger of the .44 magnum when I grabbed the .44 magnum to put it up.
Lukas Taylor then twisted the .44 magnum away from me and toward himself. At that
time, the .44 magnum fired striking Lukas Taylor in the chest. . . .

5
be held to the higher standard of knowingly because he was not an "ordinary person."

Accordingly, he presented the case to the grand jury as a murder, and they returned

the instant indictment.

After a lengthy and difficult voir dire, Appellant was tried and convicted of murder.

The jury assessed his sentence at twenty-three years confinement and this appeal

followed.

Of Appellant's six points of error, we will address two. Because Appellant's third

point, legal sufficiency, would provide him the greatest relief, i.e., an acquittal, we will

address that contention first.6 Finding the evidence legally sufficient, we will next

address his fifth point, charge error. Because disposition of that point addresses every

issue necessary to a final disposition of the appeal,7 we pretermit Appellant's remaining

points of error.

I. Legal Sufficiency

A. Standard of Review

It is a fundamental rule of criminal law that one cannot be convicted of a crime

unless it is shown beyond a reasonable doubt that the defendant committed each

element of the alleged offense. U.S. Const. amend. XIV; Tex. Code Crim. Proc. Ann.

art. 38.03 (Vernon Supp. 2009); Tex. Penal Code Ann. ' 2.01 (Vernon 2003).

Evidence is legally insufficient if, when viewed in a light most favorable to the

6
Generally, when a party presents multiple grounds for reversal, an appellate court should first address
those points that would afford the party the greatest relief. See Tex. R. App. P. 43.3; See also Bradley
Elec. v. Cigna Lloyds Ins. Co., 995 S.W.2d 657, 677 (Tex. 1999).
7
Tex. R. App. P. 47.1.

6
prosecution, a rational trier of fact could not have found each element of the offense

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781,

2789, 61 L.Ed.2d 560, 573 (1979); Laster v. State, 275 S.W.3d 512, 517

(Tex.Crim.App. 2009). In conducting a legal sufficiency review, we must evaluate all of

the evidence in the record, both direct and circumstantial, whether admissible or

inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999), cert.

denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). This standard gives

full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts. Jackson, 443 U.S. at 319. In measuring the sufficiency of the evidence to

sustain a conviction, we measure the elements of the offense as defined by a

hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.

1997). Such a charge is one that accurately sets out the law, is authorized by the

indictment, does not necessarily restrict the State=s theories of liability, and adequately

describes the particular offense for which the defendant was tried. Id. For purposes of

legal sufficiency, the quantum of proof necessary to support a conviction is a minimum

threshold.

Appellate courts are ill-equipped to weigh the evidence; unlike the factfinderBwho

can observe facial expressions and hear voice inflections first-handCan appellate court

is limited to the cold record. Laster, 275 S.W.3d at 517. Our role on appeal is

restricted to guarding against the rare occurrence when a factfinder does not act

rationally. Id. After giving proper deference to the factfinder=s role, we will uphold the

7
verdict unless a rational factfinder must have had reasonable doubt as to any essential

element. Id. at 518.

B. Analysis

To support a conviction for murder, the State was required to prove that

Appellant intentionally or knowingly caused the victim's death by shooting him with a

deadly weapon, to-wit: a firearm. See Tex. Penal Code Ann. § 19.02(b)(1) (Vernon

2003) and § 1.07(a)(17)(A) (Vernon Supp. 2009).

Section 6.03 of the Penal Code defines the culpable mental states of

Aintentionally@ and Aknowingly@ as follows:

(a) A person acts intentionally, or with intent, with respect to the nature of
his conduct or to a result of his conduct when it is his conscious objective
or desire to engage in the conduct or cause the result.

(b) A person acts knowingly, or with knowledge, with respect to the nature
of his conduct or to circumstances surrounding his conduct when he is
aware of the nature of his conduct or that the circumstances exist. A
person acts knowingly, or with knowledge, with respect to a result of his
conduct when he is aware that his conduct is reasonably certain to cause
the result.

Murder, whether intentionally or knowingly committed, is a result oriented

offense. Cook v. State, 884 S.W.2d 485, 490 (Tex.Crim.App. 1994). As such, the full

statutory definitions of intentional and knowing do not apply. Instead, the State must

establish that the accused intended the result, i.e., death, or that he was aware that his

conduct was reasonably certain to cause that result. Id.

8
 A firearm is a deadly weapon per se. See Tex. Penal Code Ann. §

1.07(a)(17)(A). See also Ex Parte Huskins, 176 S.W.3d 818, 820 (Tex.Crim.App.

2005).

According to the evidence presented, Appellant and the victim struggled over a

loaded .44 magnum handgun which discharged, shooting the victim in the chest,

resulting in his death. Although none of the eyewitnesses could state what caused the

handgun to discharge, Ranger Foster opined that Appellant had pulled the trigger

during that struggle and that the victim could not have pulled the trigger. Although he

unequivocally testified that the shooting was not intentional, in his opinion, Appellant

knowingly committed murder. According to Ranger Foster's testimony, no matter how

accidental a shooting incident might have been, anyone trained in firearms would not

be an "ordinary person" and would, therefore, be incapable of manslaughter or

criminally negligent homicide because they would always be aware that careless

conduct involving a firearm was reasonably certain to cause death. Although Ranger

Foster's testimony was, in part, based upon an incorrect legal premise, his testimony

did include statements which were legally sufficient to support the jury's decision to

convict Appellant of murder.8 The legal sufficiency of the evidence was further

supported by Christopher's testimony that Appellant "caused" the victim's death and

8
In his dissent, Chief Justice Quinn takes issue with the conclusion that the evidence of guilt was legally
sufficient to support a finding of guilt to the offense of murder. Finding Ranger Foster's testimony
incorrectly states the law, he logically concludes that a jury does not act reasonably by adopting those
misstatements. While we agree that a jury should not base its verdict upon an incorrect understanding
of the law, from a legal sufficiency analysis prospective, we must presume that the jury correctly followed
that portion of the trial court's instructions that did correctly state the law. Kirsh v. State, 306 S.W.3d
738, 748 n.33 (Tex.Crim.App. 2010). As discussed further in Section II, Ranger Foster's objectionable
testimony only emphasizes the egregious nature of the misstatement of law found in the Court's Charge
in this case.

9
Presciliano's testimony that Appellant "caused" the shooting. Accordingly, point of

error three is overruled.

II. The Court's Charge

As stated above, murder, whether intentionally or knowingly committed, is a

result oriented offense. Cook, 884 S.W.2d at 490. Because the applicable mental

state relates to the result of the conduct only, i.e., causing of the death, Schroeder v.

State, 123 S.W.3d 398, 400 (Tex.Crim.App. 2003), a charge which contains the full

statutory definition is erroneous. See Cook, 884 S.W.2d at 491. See also Alvarado v.

State, 704 S.W.2d 36, 40 (Tex.Crim.App. 1985). The court's charge for a result

oriented offense such as murder should not allow a jury to convict a person based

solely on a finding that the accused intentionally or knowingly engaged in conduct

which happened to cause death. See generally Green v. State, 891 S.W.2d 289, 294

(Tex.App.--Houston [1st Dist.] 1994, pet. ref'd).

Here, the abstract portion of the court's charge contained the full statutory

definitions of intentional and knowing as they appear in section 6.03(a) and (b) of the

Texas Penal Code. Accordingly, the charge allowed the jury to do that which the law

did not -- find him guilty of murder based on his conduct, rather than on intending or

knowing the prohibited result -- death. As such, the trial court erred in the submission

of its charge to the jury. Cook, 884 S.W.2d at 491. However, merely finding error in

the court's charge begins, rather than ends, our inquiry. Almanza v. State, 686 S.W.2d

157, 174 (Tex.Crim.App. 1984) (op. on reh'g). If error exists, we must then analyze the

error for harm. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005).

10
 A. Standard of Review

Appellant did not object to the trial court's charge error. This failure to preserve

jury charge error is not, however, an absolute bar to appellate review. Warner v.

State, 245 S.W.3d 458, 461 (Tex.Crim.App. 2008). Rather, failure to preserve error

establishes the degree of harm necessary for reversal. Id. Unobjected to charge error

is reversible if it is so egregious and creates such harm that it deprives the accused of

a "fair and impartial trial." Almanza, 686 S.W.2d at 172. Errors that results in

egregious harm are those kinds of errors that affect "'the very basis of the case,'

'deprive the defendant of a valuable right,' or 'vitally affect a defensive theory.'" See

Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996) (quoting Almanza, 686

S.W.2d at 172). See also Sanchez v. State, 209 S.W.3d 117, 121 (Tex.Crim.App.

2006).

When reviewing harm resulting from charge error, an appellate court must

determine harm in light of (1) the entire jury charge, (2) the state of the evidence,

including contested issues and the weight of probative evidence, (3) the arguments of

counsel, and (4) any other relevant information revealed by the record of the trial as a

whole. See Almanza, 686 S.W.2d at 171. See also Ngo, 175 S.W.3d at 750 n.48.

Additionally, there is no burden of proof or persuasion in a harm analysis conducted

under Almanza. Warner, 245 S.W.3d at 464.

11
B. Harm Analysis

1. The Entire Jury Charge

While the abstract definitions of intentional and knowing contained in the court's

charge erroneously included references to the nature of Appellant's conduct, the

application paragraph of the court's charge correctly limited the jury's consideration to

the result of his conduct. Accordingly, the State relies heavily on Medina v. State, 7

S.W.3d 633, 640 (Tex.Crim.App. 1999), and Richie v. State, 149 S.W.3d 856, 857

(Tex.App.--Amarillo 2004, no pet.), for the proposition that harm can never be

egregious when it is shown that an appellant fails to make an objection at trial and the

charge correctly instructs the jury in the application paragraph.

Despite its earlier holding in Medina, in 2006 the Court of Criminal Appeals, in

granting an appellant's petition for discretionary review in a per curiam, unpublished

opinion, held that an appellate court improperly limits its harm analysis when it does so

without addressing the other Almanza factors. See Dougherty v. State, No. PD-1311-

05, 2006 WL 475802 (Tex.Crim.App. March 1, 2006) (per curiam) (not designated for

publication). In Dougherty, the appellate court's decision that error in the abstract

portion of a jury charge did not cause egregious harm when the application paragraph

properly instructed the jury was vacated and remanded for consideration of the

remaining Almanza factors. Although the appellate court had correctly set forth the

standard for assessing harm, the high Court determined that a harm analysis based on

charge error could not be based solely on the jury charge but must instead include

consideration of all four Almanza factors. Id. But see Dougherty v. State, 188 S.W.3d

12
670 (Tex.Crim.App. 2006) (Keller, P.J. dissenting) (concluding that appellant's petition

should have been refused because an erroneous abstract paragraph is completely

remedied by a properly limited application paragraph without the necessity of

considering all four Almanza factors).

In Richie, 149 S.W.3d at 857, this Court followed Medina and, without analyzing

all four factors, found that Richie had not suffered egregious harm where the

application paragraph properly instructed the jury on the correct culpable mental state.

Richie, however, predates Dougherty, and in light thereof, we deem it appropriate to

consider all of the Almanza factors in determining harm.9

In that vein, we note that the Charge of the Court was a multifarious charge

including the lesser included offenses of manslaughter10 and criminally negligent

homicide.11 Again, the abstract definition of the appropriate culpable mental states

included the full statutory definitions of reckless and criminal negligence. While the

distinction between "nature of conduct" and "result of conduct" becomes blurred with

respect to offenses based upon a reckless or criminally negligent mens rea, the

inclusion of the full statutory definition of all four mental states, combined with the

State's argument that Appellant was not an "ordinary man," certainly compounded the

error.

9
Furthermore, we note that, in light of Dougherty, the State analyzed all four Almanza factors in its
Supplemental Brief.
10
See Tex. Penal Code Ann. § 19.04 (Vernon 2003).
11
See Tex. Penal Code Ann. § 19.05 (Vernon 2003).

13
 Furthermore, even though the State's witnesses had testified that Appellant did

not intentionally cause the victim's death, and the State acknowledged in its closing

arguments that it was only relying upon knowing for a murder conviction, the charge of

the court still allowed jurors to consider whether or not Appellant committed murder by

intentionally engaging in conduct. Therefore, overall, a review of the entire jury charge

militates in favor of a finding of harm.

2. The State of the Evidence

From the beginning, as it pertained to Appellant's culpable mental state, the

State's evidence focused on the nature of his conduct. According to the State,

because of his extensive firearms training, Appellant could not have been guilty of the

lesser offenses of manslaughter or criminally negligent homicide because those

offenses required a culpable mental state which, according to the State's theory, only

applied to an "ordinary person."12 In reaching this conclusion, the State relies heavily

on the testimony of Ranger Foster.13

Of that evidence which Appellant contested, and upon which the jury would be

asked to make determinations of probative value, the vast majority dealt with

Appellant's culpable mental state. The State spent a great deal of time establishing

that, due to his firearms training, Appellant was not an ordinary person, and that he

12
The culpable mental states of recklessness and criminal negligence provide that the actor's risk
"constitutes a gross deviation from the standard of care that an ordinary person would exercise . . . as
viewed from the actor's standpoint." (Emphasis added).
13
Although the admissibility of portions of Ranger Foster's testimony was raised by Appellant in his
second point of error, for purposes of egregious harm review, we need not address that contention.

14
must have fully understood that wrestling over a loaded firearm was an extremely

dangerous proposition.

Sergeant Shannon Betts, who trained Appellant on use of firearms, testified that

Appellant had more firearms training than the ordinary citizen. In response to

numerous questions during direct examination, Ranger Foster emphatically testified

that Appellant was not an ordinary person because of his extensive firearms training.

He further opined that the culpable mental states of recklessness and criminal

negligence simply did not apply to Appellant for that reason.

During Ranger Foster's direct testimony, the prosecutor recited the full statutory

definition of "knowingly" and asked the following question:

[Prosecutor]: So tell us your feelings about how those facts apply.

[Ranger Foster]: Based on --

[Defense Counsel]: Objection, Your Honor, invades the province of the
jury. They're the ones that -- they are the ones that determine whether it
was intentional, knowing, reckless, or criminally negligent.

[Prosecutor]: Judge, if I may respond.

[Court]: Yes.

[Prosecutor]: The Ranger is testifying about why he charged this
defendant with manslaughter and later changed his mind as to what the
offense was. He's entitled to say why he changed his mind and what the
offense is and why he charged him in that regard.

[Court]: Your objection is overruled. Go ahead, Ranger.

15
 Later in his testimony, again over objection,14 Ranger Foster explained why he

increased the charge from manslaughter to murder:

[t]he part, as we said, that went from manslaughter to murder was his
background, his training as a correctional officer. He is held to a higher
degree of accountability, just such as myself would be in a similar
situation, and he is not an ordinary person.

During cross-examination, Ranger Foster clung to his opinion that a person who is

trained to carry a weapon for employment purposes is not an ordinary person for

purposes of culpable mental states. He qualified his testimony to prevent "blanket

coverage" by testifying that whether a person should be held to a higher standard

"depend[s] on the amount of training and the situation around it."

Appellant's brother, Bo, testified that Appellant was not "mad" and there was no

arguing or fighting between Appellant and Lukas. Although Christopher answered

affirmatively during direct examination when asked if Appellant "caused" the victim's

death, he also testified that Appellant was not mad and that Appellant and Lukas were

"joking around." Presciliano testified during cross-examination that Appellant did not

knowingly shoot Lukas and agreed with defense counsel that the discharge of the

firearm was an unintentional act.

Lukas Taylor was shot during a struggle for control of the firearm and other than

Ranger Foster's opinion testimony that Appellant committed murder, the State did not

present evidence that it was Appellant's purpose that Lukas would die as a result of

14
Defense counsel objected, "asked and answered for the third time, Your Honor." The objection was
overruled.

16
their confrontation. Accordingly, we conclude the evidence tending to support a finding

that Appellant caused the victim's death, a required element of the offense, is "weak"

and, considering conflicting evidence, is arguably "against the great weight and

preponderance of the evidence." Laster, 275 S.W.3d at 518.15 Consequently, we find

the second Almanza factor also favors a finding of harm.

3. The Arguments of Counsel

In his opening argument, the prosecutor stated:

[Appellant] loved guns. He owned numerous firearms, including shotguns,
pistols, and assault rifles. He had worked for about two years as a prison
guard over at the Roach Unit in Childress. As a requirement for his
employment, he was trained in firearm proficiency. As a requirement of his
employment, he learned how to use firearms with an emphasis on safety.
He was certified by the State of Texas as a corrections officer. So
[Appellant] knew how to safely handle guns.

But in spite of his training, [Appellant] almost always kept his guns loaded
and had a habit of pointing them at people. . . .

***

[Appellant's] conduct caused the death of Lukas Taylor.

***

[B]ut for the act and the conduct of [Appellant], the shooting would not have
occurred.

***

The prosecutor then read the full statutory definitions of "intentionally" and

"knowingly" to the jury and continued:

15
A conviction is not subject to reversal on the basis of factually insufficient evidence unless: (1) the
evidence supporting the conviction is Atoo weak@ to support the factfinder=s verdict, or (2) considering
conflicting evidence, the factfinder=s verdict is Aagainst the great weight and preponderance of the
evidence.@ Although factual sufficiency was raised by Appellant in his fourth point of error, we need not
fully address that issue for purposes of egregious harm review.

17
 [C]onduct is the core part of those definitions. . . . It's the act and the
conduct of [Appellant], [Appellant] alone, and that will prove the offense of
murder.

(Emphasis added). The prosecutor's opening argument contains misstatements of law.

Murder is not proven by knowing conduct; rather, section 19.02(b)(1) of the Texas Penal

Code criminalizes causing death.

During his closing argument, the prosecutor explained to the jury it was relying

solely on the culpable mental state of "knowingly" to establish murder. Although he did

reiterate the incorrect full statutory definition of knowingly, his factual application only

emphasized the correct definition. However, after explaining knowingly, he continued

his argument by incorrectly contending that the culpable mental states of reckless and

criminal negligence applied only to an ordinary person. Then, by arguing that Appellant

was not an ordinary person, he reasoned that the offenses of manslaughter and

criminally negligent homicide did not apply to Appellant. This argument was not only

misleading, it was a misstatement of the law.

After the defense presented its closing argument, the prosecutor gave its final

argument. In summarizing responses to his questions by Bo, Christopher, and

Presciliano, he argued, "the acts and conduct of [Appellant] . . . but for the acts and the

conduct of this man, [Appellant], Lukas Taylor would still be alive and there would never

have been a shooting." He then reminded the jury of Sergeant Betts's testimony that

Appellant is not an ordinary person because of his firearms training. Finally, in recalling

Ranger Foster's testimony, the prosecutor reiterated Foster's opinion that Appellant was

guilty of murder because he was not an ordinary person.

18
 The prosecutor continued during his closing argument:

[Prosecutor]: And I think he [Ranger Foster] did a good job and I don't
want to belabor the jury, because we've already talked about it, explaining
to you why his investigation revealed the crime of murder, in his opinion,
and not a manslaughter or criminal negligence. And it all goes back -- a lot
of it goes back to the fact that [Appellant] is just not an ordinary person. He
is a person that is trained in firearms safety and firearms and knows a lot
more than an ordinary person. He doesn't fit the definition for
manslaughter or criminal negligence.

(Emphasis added).

In analyzing the third Almanza factor, the State asserts its arguments were proper

and that Appellant did not object to the definition of "knowingly" during closing

arguments. We disagree. Just as with the prosecutor's opening argument, his closing

and final arguments also contain misleading contentions and misstatements of law. He

emphasized that but for Appellant's conduct, the victim would still be alive and he

argued that the offenses of manslaughter and criminally negligent homicide were simply

inapplicable to Appellant because he was not an ordinary man.

Concluding that certain misstatements of law were made by the prosecutor during

opening and closing arguments which likely would have mislead and confused the jury,

we disagree with the State's assessment of the third Almanza factor and conclude that

the improper arguments egregiously prejudiced Appellant.

4. Any Other Relevant Information

Finally, in assessing the fourth and final Almanza factor, any other relevant

information, the State insists the jury needed to understand the emphasis the State

placed on Appellant's conduct. The State asserts, "the jury needed to understand the

19
circumstances of the shooting and the training of the appellant in order to understand

that the appellant knew that Lukas Taylor would die as a result of the appellant's

actions."

In response to the prosecutor's closing arguments, defense counsel argued that

the State's theory was that persons with firearms training are so extraordinary that any

unintentional discharge of a firearm causing death would constitute murder. Taken to

its logical conclusion, under the State's theory, an off-duty police officer, due to his

firearms training, would always be held to a higher standard than the "ordinary person"

and could not be found guilty of any offense less than murder, even if his conduct was

merely reckless or criminally negligent.

A statute is interpreted in accordance with the plain meaning of its text, unless

the plain meaning leads to an absurd result that the Legislature could not possibly have

intended. See Murray v. State, 302 S.W.3d 874, 877 (Tex.Crim.App. 2009). The

prosecution's theory leads to an absurd result. Neither the Texas Penal Code nor the

Texas Code of Criminal Procedure defines "ordinary person." Furthermore, we have

not found any authority which imposes a higher standard of culpability for homicides

committed by persons with firearms training. We decline to adopt such a standard for

assessing culpability in homicide cases. To do so would amount to legislating from the

bench. See Turner v. Cross, 83 S.W. 218, 188 S.W. 578, 579 (1892).16 Therefore, our

analysis of the fourth Almanza likewise weighs in favor of a finding of harm.

16
It is the duty of a court to administer the law as it is written, and not to make the law; and however
harsh a statute may seem to be, or whatever may seem to be its omissions, courts cannot on such
considerations by construction retrain its operation or make it apply to cases to which it does not apply,
without assuming functions that pertain solely to the legislative department of the government.

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 In sum, the erroneous abstract portion of the charge, the evidence presented by

the State, the prosecutor's opening and closing arguments, and the State's general

theory of the inapplicability of the culpable mental states of reckless and criminal

negligence to persons with firearms training, all emphasized the nature of Appellant's

conduct, thereby allowing the jury to believe they were authorized to convict Appellant

of murder based solely on their belief that he knowingly or intentionally engaged in

extremely dangerous conduct (wrestling a loaded firearm away from Lukas Taylor),

without requiring a finding that he intended or knew that death would result. This error

was only exacerbated by the misstatement of the law as it pertained to the applicability

of reckless and criminal negligence as culpable mental states exclusively reserved to

the acts of an "ordinary man." These errors not only deprived Appellant of a valuable

right, the right to be tried in accordance with the law, they also vitally affected his

defensive theory, to-wit: that Lukas Taylor's death was the result of reckless or

criminally negligent conduct or was the result of a terrible and tragic accident. Based

upon the entire record of this case, we conclude that the trial court's charge error

caused Appellant egregious harm. Point of error five is sustained.

C. Conclusion

Consequently, the trial court's judgment is reversed and the cause is remanded

to the trial court for further proceedings.

Patrick A. Pirtle
Justice
Quinn, C.J., dissenting.

Publish.

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