ACCEPTED
13-14-00338-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
8/5/2015 3:31:48 PM
CECILE FOY GSANGER
CLERK
No. 13-14-338-CR
FILED IN
13th COURT OF APPEALS
IN THE COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
FOR THE THIRTEENTH DISTRICT OF8/5/2015
TEXAS 3:31:48 PM
AT CORPUS CHRISTI CECILE FOY GSANGER
Clerk
JOHNNY FLORES,
APPELLANT,
v.
THE STATE OF TEXAS,
APPELLEE.
ON APPEAL FROM THE 148TH DISTRICT COURT
NUECES COUNTY, TEXAS
BRIEF FOR THE STATE
Douglas K. Norman
State Bar No. 15078900
Assistant District Attorney
105th Judicial District of Texas
901 Leopard, Room 206
Corpus Christi, Texas 78401
(361) 888-0410
(361) 888-0399 (fax)
douglas.norman@co.nueces.tx.us
Attorney for Appellee
ORAL ARGUMENT IS NOT REQUESTED
TABLE OF CONTENTS
INDEX OF AUTHORITIES .......................................................................... ii
SUMMARY OF THE ARGUMENT ..............................................................1
ARGUMENT ...................................................................................................2
Reply Point.
The trial court properly denied Flores’ request for a charge on
manslaughter as a lesser-included offense...................................................2
I. Statement of Facts. ...........................................................................2
II. The Rousseau Test and the Cognate-Pleadings Approach. ........3
III. First Prong. ...................................................................................5
IV. Second Prong. ...............................................................................9
PRAYER ....................................................................................................... 12
RULE 9.4 (i) CERTIFICATION .................................................................. 12
CERTIFICATE OF SERVICE ..................................................................... 13
INDEX OF AUTHORITIES
Cases
Bell v. State, 501 S.W.2d 137 (Tex. Crim. App. 1973). ..................................8
Bell v. State, 693 S.W.2d 434 (Tex. Crim. App. 1985). ..................................9
Cavazos v. State, 382 S.W.3d 377 (Tex. Crim. App. 2012) .................. passim
Flanagan v. State, 675 S.W.2d 734 (Tex. Crim. App. 1984). .........................8
Godsey v. State, 719 S.W.2d 578 (Tex. Crim. App. 1986). ............................8
McKithan v. State, 324 S.W.3d 582 (Tex. Crim. App. 2010). ........................4
Meine v. State, 356 S.W.3d 605 (Tex. App.—Corpus Christi 2011, pet.
ref'd). ......................................................................................................... 4, 10
State v. Meru, 414 S.W.3d 159 (Tex. Crim. App. 2013). ................................7
Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App. 1993). .........................3
Saunders v. State, 840 S.W.2d 390 (Tex. Crim. App. 1992). .........................9
Ex parte Watson, 306 S.W.3d 259 (Tex. Crim. App. 2009). ..........................4
Statutes & Rules
Tex. Pen. Code § 1.07. .......................................................................... 5, 8, 10
Tex. Pen. Code § 6.03. .............................................................................. 5, 10
Tex. Pen. Code § 19.02. ............................................................................ 5, 10
Tex. Pen. Code § 19.04. ............................................................................ 5, 10
The Merriam-Webster Online Dictionary, http://www.merriam-
webster.com/dictionary/asphyxia (last accessed August 4, 2015). .................8
ii
NO. 13-14-338-CR
JOHNNY FLORES, § COURT OF APPEALS
Appellant, §
§
V. § FOR THE THIRTEENTH
§
THE STATE OF TEXAS, §
Appellee. § DISTRICT OF TEXAS
BRIEF FOR THE STATE
TO THE HONORABLE COURT OF APPEALS:
SUMMARY OF THE ARGUMENT
The trial court properly denied a charge on manslaughter because
murder, as charged in the present indictment, does not share the same
culpable mental state with manslaughter concerning the risk of death. In
addition, even if such a mental state is read into the present indictment, there
was no evidence in the present case that Flores could have been guilty only
of the lesser offense of manslaughter.
ARGUMENT
Reply Point.
The trial court properly denied Flores’ request for a charge on
manslaughter as a lesser-included offense.
I. Statement of Facts.
The following evidence was presented at trial relevant to Flores’
mental state at the time he killed the victim by assaulting and asphyxiating
her.
In his 9-1-1 call, Flores admitted to the operator that he killed his
girlfriend by suffocating her (SX # 4; admitted and played for jury at RR
vol. 3, p. 36)
In his recorded confession to the police, when asked what happened
on the night of the killing, Flores said, “I just lost it.” He later repeated that
he “lost it” or “snapped.” Specifically, Flores claimed that he was angry
with the victim for giving him a sexually transmitted disease, and that this
anger “pushed [him] over the edge,” that he and the victim started fighting,
that she scratched him, and that he hit her. Flores admitted to hitting,
slapping and choking the victim, and that he was mad and angry at the time.
Flores did not know how long he choked the victim, but claimed that when
she stopped fighting he “snapped out of it” and checked her pulse. (SX #
82; admitted and played for jury at RR vol. 3, pp. 141-42)
2
Dr. Ray Fernandez, the medical examiner, testified that the cause of
the victim’s death was mechanical asphyxia, which he explained to be an
outside force pushing on the body and causing a blockage of the mouth,
nose, and/or neck. (RR vol. 3, p. 200) The injuries Dr. Fernandez found on
the victim included a stab wound to the right temple, scrapes and bruises to
the face, a fractured nose, and fractured teeth. (RR vol. 3, pp. 200-01)
Dr. Troy Martinez, a forensic psychologist who examined Flores,
testified that when someone with the mental illness Flores had is off their
medication, this can effect their impulse control, and they can act
“recklessly,” which to Dr. Martinez meant impulsive or irrational behavior.
(RR vol. 4, pp. 82-83)
II. The Rousseau Test and the Cognate-Pleadings Approach.
A two-prong test applies to determine whether an instruction on a
lesser-included offense should be given to the jury: First, the court
determines if the proof necessary to estblish the charged offense also
includes the lesser offense; Second, if this threshold is met, the court must
then consider whether the evidence shows that if the defendant is guilty, he
is guilty only of the lesser offense. Cavazos v. State, 382 S.W.3d 377, 382
(Tex. Crim. App. 2012); Rousseau v. State, 855 S.W.2d 666, 672 (Tex.
3
Crim. App. 1993); Meine v. State, 356 S.W.3d 605, 612 (Tex. App.—Corpus
Christi 2011, pet. ref'd).
The first prong of this test is evaluated under the cognate-pleadings
approach, which asks whether “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.” Cavazos, 382 S.W.3d at 382 (citing Ex parte Watson, 306
S.W.3d 259 (Tex. Crim. App. 2009) (op. on reh'g)). The Court in Cavazos
explained that “the elements of the lesser-included offense do not have to be
pleaded in the indictment if they can be deduced from facts alleged in the
indictment. In this situation, the functional-equivalence concept may be part
of the lesser-included-offense analysis. Using functional-equivalence, the
court must ‘examine the elements of the lesser offense and decide whether
they are functionally the same or less than those required to prove the
charged offense.’” 382 S.W.3d at 383 (quoting McKithan v. State, 324
S.W.3d 582, 588 (Tex. Crim. App. 2010)).
4
III. First Prong.
The relevant elements of Murder and Manslaughter in the present case
are contained in the following statutory excerpts:
Murder.
(b) A person commits an offense if he:
(2) intends to cause serious bodily injury and commits an act
clearly dangerous to human life that causes the death of an
individual;
Tex. Pen. Code § 19.02.
(a) In this code:
(46) “Serious bodily injury” means bodily injury that creates a
substantial risk of death or that causes death, serious permanent
disfigurement, or protracted loss or impairment of the function
of any bodily member or organ.
Tex. Pen. Code § 1.07.
Manslaughter.
(a) A person commits an offense if he recklessly causes the death of
an individual.
Tex. Pen. Code § 19.04.
(c) A person acts recklessly, or is reckless, with respect to
circumstances surrounding his conduct or the result of his conduct
when he is aware of but consciously disregards a substantial and
unjustifiable risk that the circumstances exist or the result will occur.
The risk must be of such a nature and degree that its disregard
constitutes a gross deviation from the standard of care that an ordinary
person would exercise under all the circumstances as viewed from the
actor's standpoint.
Tex. Pen. Code § 6.03.
5
The Court of Criminal Appeals has acknowledged that, with regard to
a Subsection (b)(2) murder, the only specified mens rea is “the intent to
cause serious bodily injury and the statute does not add a culpable mental
state to the conduct that caused the death,” while manslaughter does require
a reckless mental state concerning the risk that death will occur. Cavazos v.
State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012). In Cavazos, however,
the indictment included an allegation that the clearly dangerous act that
caused death was “shooting [the victim] with a firearm.” Id. at 380. The
majority opinion reasoned that this additional allegation of use of a firearm,
as a deadly weapon per se, carried with it an inference that the defendant
intended to cause the victim’s death, thus under the cognate-pleadings
functional-equivalence concept supplying through the indictment the greater
mens rea necessary to make this particular Subsection (b)(2) murder the
greater offense, and manslaughter the lesser offense, for purposes of the
defendant’s entitlement to a charge on the lesser offense. Id. at 383-84.
In her concurrence, Presiding Judge Keller further explained why,
under ordinary circumstances and without the boost that the majority
inferred from the deadly weapon addition in the indictment, a Subsection
(b)(2) murder does not contain the same elements as manslaughter:
The State's task is more difficult if it must prove that the defendant
contemplated causing “death” than if it need only prove that the
6
defendant contemplated causing “serious bodily injury.” So, while
the culpable mental state of “intent” found in § 19.02(b)(2) is greater
than the culpable mental state of “recklessness” found in the offense
of manslaughter, the contemplated injury that must be proven in a §
19.02(b)(2) murder prosecution (serious bodily injury) is less than the
contemplated injury that must be proven in a manslaughter
prosecution (death). So, manslaughter does not differ from §
19.02(b)(2) murder solely on the basis of a lesser culpable mental
state because manslaughter also differs by requiring proof of a greater
contemplated injury. Consequently, manslaughter is not a lesser-
included offense of § 19.02(b)(2) murder.
Id. at 388 (Keller, P.J., concurring). More recently, the Court of Criminal
Appeals has again acknowledged that Subsection (b)(2) murder and
manslaughter contain divergent elements and that application of the
functional-equivalence test was necessary in Cavazos to bridge the gap by
means of the allegation of “shooting with a firearm.” See State v. Meru, 414
S.W.3d 159, 167 n.2 (Tex. Crim. App. 2013)
In the present case, the indictment charged, in pertinent part, that
Johnny Flores, “on or about JULY 4, 2013, in Nueces County, Texas, did
then and there with the intent to cause serious bodily injury to an individual,
namely, TERRY MECHELL RAMOS, commit and [sic] act clearly
dangerous to human life that caused the death of said TERRY MECHELL
RAMOS, by asphyxia.” (CR p. 7)
Accordingly, there was no deadly weapon allegation, and thus no
inference that Flores intended to cause anything greater than serious bodily
7
injury. Nor did the allegation that he caused the death “by asphyxia” carry
the same inference that use of a firearm did in Cavazos.
The term “asphyxia” is defined as “a lack of oxygen or excess of
carbon dioxide in the body that results in unconsciousness and often death
and is usually caused by interruption of breathing or inadequate oxygen
supply.” The Merriam-Webster Online Dictionary, http://www.merriam-
webster.com/dictionary/asphyxia (last accessed August 4, 2015).
While shooting with a firearm as a deadly weapon has a long history
of presumed intent to kill, see Cavazos, 382 S.W.3d at 384; Godsey v. State,
719 S.W.2d 578, 580–81 (Tex. Crim. App. 1986); Flanagan v. State, 675
S.W.2d 734, 744 (Tex. Crim. App. 1984); Bell v. State, 501 S.W.2d 137, 138
(Tex. Crim. App. 1973), “by asphyxia” is a nebulous term that says nothing
about the means used by the defendant and could be accomplished in many
different ways, some of which may involve only intent to injure or
incapacitate rather than intent to kill. It is, for example, possible that the
defendant intended by beating and choking the victim to cause serious
bodily injury in the form of “serious permanent disfigurement, or protracted
loss or impairment of the function of any bodily member or organ” see Tex.
Penal Code § 1.07 (a)(46), yet not to cause her death. Flores in his appellate
brief implies that his breaking of the victim’s nose, which suggests
8
disfigurement and protracted loss or impairment of function, may in turn
have caused obstruction of her airway and asphyxiation. (Flores Brief pp. 2-
3)
Therefore, in the present case, unlike Cavazos, manslaughter fails the
first prong of the Aguilar/Rousseau test and was properly denied as a lesser-
included offense.
IV. Second Prong.
Under the second prong, a defendant is entitled to an instruction on a
lesser-included offense if some evidence from any source raises a fact issue
on whether he is guilty of only the lesser, regardless of whether the evidence
is weak, impeached, or contradicted. Cavazos, 382 S.W.3d at 383 (citing
Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim. App. 1985)).
Evidence may indicate that a defendant is guilty of only the lesser
offense either by refuting or negating other evidence establishing the greater
offense, or by showing that the defendant’s awareness of the risk may be
subject to two different interpretations. Cavazos, 382 S.W.3d at 385 (citing
Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992)).
However, as the Court in Cavazos stated, “[m]eeting this threshold
requires more than mere speculation—it requires affirmative evidence that
both raises the lesser-included offense and rebuts or negates an element of
9
the greater offense.” 382 S.W.3d at 385; see also Meine v. State, 356
S.W.3d 605, 612 (Tex. App.—Corpus Christi 2011, pet. ref'd) (requiring
affirmative evidence of a lower culpable mental state in order to entitle the
defendant to an instruction on the requested lesser offense).
Specifically, as applied to a request for manslaughter in the context of
a Subsection (b)(2) murder by shooting charge, “[t]here must be some
affirmative evidence that Appellant did not intend to cause serious bodily
injury when he shot the victim, and must be some affirmative evidence from
which a rational juror could infer that Appellant was aware of but
consciously disregarded a substantial and unjustifiable risk that death would
occur as a result of his conduct.” Cavazos, 382 S.W.3d at 385.
In the present case, even assuming that, under the functional-
equivalence concept, the present indictment does charge an intent to cause
death or a substantial risk thereof, what separates murder from manslaughter
is the razor-thin difference between intent to cause bodily injury that creates
a substantial risk of death, see Tex. Penal Code §§ 19.02 (b)(2) and 1.07
(a)(46), and awareness of but consciously disregarding a substantial risk of
death. See Tex. Penal Code §§ 19.04 (a) and 6.03 (c).
In other words, was there some affirmative evidence in the present
case to show that Flores did not intend to inflict an injury serious enough to
10
create a substantial risk of death but was aware that he was inflicting such an
injury and consciously disregarded the risk?
Yet, there is no indication that Flores did not intend to injure the
victim when he violently assaulted her. His claims to having “lost it” and
his possible impulsiveness due to mental illness do nothing to negate that
intent. That being the case, it is hard to imagine a situation in which he did
not intend serious bodily injury, in the sense of intending an injury that he
knew would create a substantial risk of death [Subsection (b)(2) Murder],
yet he did intend an injury that he was consciously aware would cause a
substantial risk of death [Manslaughter]. Arguably, the two offenses merge
in this situation, and Flores cannot be innocent of the greater and guilty of
the lesser. He was either guilty of murder, or of neither offense.1
Accordingly, Flores was not entitled to a charge on the lesser offense,
and his ground of error should be overruled.
1
The State acknowledges that there could be a situation where the defendant
arguably did not intend any injury or assaultive contact, but still engaged in
reckless conduct that created a substantial risk of lethal injury, such as
shooting a gun into a house without regard to whether it might be occupied
or wildly swinging a baseball bat in a crowded room. In such a case,
manslaughter could logically be a viable alternative to Subsection (b)(2)
murder.
11
PRAYER
For the foregoing reasons, the State respectfully requests that the
judgment of the trial court be affirmed.
Respectfully submitted,
/s/Douglas K. Norman
___________________
Douglas K. Norman
State Bar No. 15078900
Assistant District Attorney
105th Judicial District of Texas
901 Leopard, Room 206
Corpus Christi, Texas 78401
(361) 888-0410
(361) 888-0399 (fax)
douglas.norman@co.nueces.tx.us
RULE 9.4 (i) CERTIFICATION
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I
certify that the number of words in this brief, excluding those matters listed
in Rule 9.4(i)(1), is 2,258.
/s/Douglas K. Norman
___________________
Douglas K. Norman
12
CERTIFICATE OF SERVICE
This is to certify that a copy of this brief was e-mailed on August 5,
2015, to Appellant’s attorney, Nathan Burkett, burkett.nathan@gmail.com.
/s/Douglas K. Norman
___________________
Douglas K. Norman
13
Johnny Flores v. State
Combined Opinion