Cormier v. State

• Decision Date: 19 December 2017
• Docket Number: NO. 01-16-00566-CR,01-16-00566-CR
• Citation: Cormier v. State, 540 S.W.3d 185 (Tex. App. 2017)
• Parties: Kimberly Nicole CORMIER, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

540 S.W.3d 185

Kimberly Nicole CORMIER, Appellant

v.The STATE of Texas, Appellee

NO. 01-16-00566-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued December 19, 2017

Discretionary Review Refused March 7, 2018

Amy D. Martin, Heather M. Lytle, 202 Travis Street, Suite 300, Houston, TX 77002, for Appellant.

Kim Ogg, District Attorney, Travis Dunlap, Assistant District Attorney, Harris County, Texas, 1201 Franklin, Suite 600, Houston, TX 77002.

Panel consists of Justices Jennings, Bland, and Brown.

Jane Bland, Justice

In December 2014, Kimberly Nicole Cormier was charged with capital murder arising out of her participation in an aggravated robbery that resulted in the Jose Bonilla's death. A jury found her guilty of the offense as charged. See TEX. PENAL CODE §§ 19.02, 19.03. The State did not seek the death penalty, and thus the trial court automatically assessed punishment at life imprisonment without the possibility of parole. See TEX. PENAL CODE § 12.31(a)(2).

On appeal, Cormier contends that (1) the trial court erred in refusing to instruct the jury on the definition of "imminent" as it applies to the affirmative defense of duress; and (2) Section 12.31(a)(2) of the Texas Penal Code, which requires a punishment of life without parole for a defendant 18 years of age or older found guilty of a capital offense, is constitutionally infirm on its face and as applied to Cormier because it violates her right to be free from cruel or unusual punishment guaranteed by Article I, Section 13, of the Texas Constitution as well as her right to be free from cruel and unusual punishment guaranteed by the Eighth Amendment of the federal Constitution. We affirm.

BACKGROUND

Cormier met James Nicholas in February 2014. The two began a romantic relationship. Cormier described Nicholas as kind and attentive at first, but as time went on, he became controlling and abusive.

Both Cormier and Nicholas had criminal histories. Nicholas was on parole, having recently been released from prison after being incarcerated for felony delivery of cocaine and unlawful possession of a firearm. Cormier had served six months for forging a prescription in 2006 and later served four years for obtaining drugs by fraud in 2010. She was using prescription pain medication when she met Nicholas.

In September 2014, Nicholas began a week-long crime spree that included the murders of Johnny Holcombe, Catherine Gingrich, Marty Carol, and Jose Bonilla, and the aggravated robbery of a cell-phone store. Cormier accompanied Nicholas during these events.

Nicholas began to worry that law-enforcement officials would identify his car in connection with the murders and the store robbery. He and Cormier visited several used-car lots to attempt to steal a car, but the opportunity to take one did not arise. Following these unsuccessful efforts, their conversation turned to Bonilla. Bonilla was an acquaintance of Cormier. Bonilla managed a business that bought, sold, and repaired cars. He ran the business out of his home and had outfitted the home with surveillance cameras for security purposes. The cameras recorded video, but not audio.

Cormier and Nicholas visited Bonilla the evening of September 7th. They inspected the cars that Bonilla had available and expressed an interest in buying one of them. They made arrangements to return in the morning.

The surveillance video recording from that morning shows Cormier greeting Bonilla. She is fluent in Spanish and appeared to take the lead in negotiations. Nicholas took one of Bonilla's cars on a test drive around the neighborhood while Bonilla and Cormier conversed outside of Bonilla's home.

A few minutes later, Nicholas returned from the test drive and the three went inside Bonilla's home. While Cormier and Bonilla were discussing paperwork in Bonilla's kitchen, Nicholas pulled a gun from the back of his waistband and put it to Bonilla's head. Nicholas handed Cormier some plastic zip-ties and, still holding the gun to Bonilla's head, directed Bonilla into the living room. Nicholas had Bonilla sit on the sofa while Cormier spoke to him. The surveillance video shows Cormier speaking to Bonilla in an aggressive manner. After a few minutes, Nicholas lunged toward the sofa, picked up a throw pillow, held it to the side of Bonilla's head, and placed the gun on the other side of the pillow. Bonilla removed an object from his pocket and gave it to Nicholas. Nicholas and Cormier then forced Bonilla into his bedroom, which was not within view of the surveillance cameras.

The surveillance video shows Cormier and Nicholas leaving the bedroom a few minutes later. Nicholas returned the throw pillow to the sofa. Cormier looked out of the front-door peephole while she covered her hand with the bottom edge of her tee shirt and wiped off the doorknob. They left the house and drove away in Bonilla's car.

That afternoon, Bonilla's roommate returned home from work to find Bonilla dead in his bedroom. He had a single gunshot wound on the right side of his head. His ankles and feet were tied together with zip ties. A spent shell casing was on the floor near his feet.

Three days after Bonilla's murder, the police found Nicholas and Cormier leaving Cormier's neighborhood in Bonilla's car. Nicholas, who was driving, tried to flee from the police and shot at the police vehicle. Before he could be arrested, he shot Cormier on her left side and shot himself in the head. An officer ordered Cormier out of the car and onto the ground. Nicholas died at the scene. Cormier survived her injuries.

At trial, Cormier acknowledged that she was present at the murders of Holcombe, Gingrich, Carol, and Bonilla, and that she had driven the get-away car from the cell-phone store where Nicholas had committed aggravated robbery. She claimed, however, that she acted in fear for her life. She testified that Nicholas had pointed his gun at her and told her that he would kill her if she told the police about his crimes.

Defense witness Toby Myers, an expert in domestic violence, opined that Cormier was terrified of Nicholas to the point of believing that she would not survive if she escaped him. He further opined that Cormier would not have been with Nicholas if she felt she had a choice. Cormier conceded, though, that she never attempted to flee from Nicholas or warn Bonilla. She acknowledged that the police confiscated an air pistol, a knife, and Gingrich's identification from her purse. She also conceded that she had lied to the police about her involvement in the crimes.

After the close of evidence, the trial court prepared a jury charge that included Cormier's affirmative defense of duress, defined as follows:

It is an affirmative defense to prosecution for any offense that the person charged engaged in the proscribed conduct because she was compelled to do so by the threat of imminent death or serious bodily injury to herself or another. Such compulsion exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.

The defense of duress is unavailable if the defendant intentionally, knowingly, or recklessly placed herself in a situation in which it was probable that she would be subjected to compulsion.

Cormier asked the trial court to add the following definition:

The word "imminent," for purposes of determining duress, has been defined by courts to mean "near at hand; mediate rather than immediate; close rather than touching; on the point of happening; threatening; menacing; or perilous."

The trial court refused the requested instruction.

DISCUSSION

Cormier challenges the trial court's charge to the jury, contending that the charge should have contained a definition for the word "imminent" in connection with her defense that she was under duress when she participated in Bonilla's murder. She further challenges the imposition of life imprisonment without the possibility of parole as constitutionally infirm because it is automatic and does not allow a jury to consider circumstances that might mitigate the term of confinement, and in particular, eliminates the possibility of parole.

I. The trial court was not required to submit a definition of "imminent."

Cormier contends that the trial court erred in refusing to include her tendered definition of "imminent" because it contains language that draws a distinction between "imminent" and "immediate."

A. Standard of review and applicable law

The trial court must deliver to the jury a written charge distinctly setting forth the law applicable to the case. TEX. CODE CRIM. PROC . art. 36.14. The "law applicable to the case" includes the statutory definitions that affect the meaning of the elements of the offense. Ouellette v. State , 353 S.W.3d 868, 870 (Tex. Crim. App. 2011) ; Lovings v. State , 376 S.W.3d 328, 337 (Tex. App.—Houston [14th Dist.] 2012, no pet.). If the applicable statute defines a phrase, term, or word that the jury must use to properly resolve an issue, the trial court has no discretion; it must submit that definition to the jury. See Arline v. State , 721 S.W.2d 348, 352 n.4 (Tex. Crim. App. 1986) ; see also State v. Kurtz , 152 S.W.3d 72, 81 (Tex. Crim. App. 2004) ("A trial court has no discretion in determining what the law is or applying the law to the facts.").

A defendant who properly requests that a defensive theory raised by the evidence be submitted to jury is entitled to an instruction on that theory. Booth v. State , 679 S.W.2d 498, 500 (Tex. Crim. App. 1984) ; see also Shaw v. State , 243 S.W.3d 647, 658 (Tex. Crim. App. 2007).

In submitting a defensive theory, trial courts have broad discretion in submitting proper definitions and explanatory phrases to aid the jury. Nava v. State , 379 S.W.3d 396, 420 (Tex. App.—Houston [14th Dist.] 2012), aff'd , 415 S.W.3d 289 (Tex. Crim. App. 2013). When submitting defensive theories, however, the trial court must do so correctly. Vega v. State , 394 S.W.3d 514, 519 (Tex. Crim. App. 2013) (holding that when a...