Harrell v. State

Decision Date02 May 1996
Docket NumberNo. 14-94-00180-CR,14-94-00180-CR
Citation923 S.W.2d 104
PartiesLatonya Denise HARRELL, Appellant v. The STATE of Texas, Appellee. (14th Dist.)
CourtTexas Court of Appeals

R. Scott Shearer, Houston, for appellant.

Scott A. Durfee, Houston, for appellee.

Before FOWLER, EDELMAN and O'NEILL, JJ.

OPINION

O'NEILL, Justice.

Appellant, Latonya Denise Harrell, was convicted of murder at a trial before a jury. The trial court assessed punishment at thirty years confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant brings three points of error contending that: (1) the trial court failed to properly instruct the jury; (2) she did not receive effective assistance of counsel; and (3) the judgment is void because the jury consisted of only eleven jurors. We affirm.

Background

On May 24, 1992, the decedent, Jerry Harrell, departed his apartment at approximately 8:30 a.m. Decedent's wife, the appellant, spent much of that day looking for her husband. She also spent the day drinking and talking with neighbors. When the decedent came home that evening he did not have a key. Appellant let him into the apartment and then returned to her friends. Thereafter the decedent left two more times. Each time he returned, appellant got up to let him into the apartment. About two hours after she last let her husband into the apartment, appellant got up again and went to the apartment.

A neighbor, Mary Davis, testified that she heard a loud noise and saw the decedent rapidly backing out of the apartment door. Davis saw appellant in front of the decedent holding him with her two hands. As the decedent was trying to turn around, appellant shot twice and the decedent fell. Davis testified she did not see the gun, but she did observe a flash in appellant's hands.

Another neighbor, Angela Wilson, testified that on the day of the shooting she was playing cards and drinking with appellant. Appellant told Wilson she was going to kill her husband. Wilson testified that she heard two shots and ran outside. She saw appellant standing over the decedent, and heard her say: "Didn't I say I was going to kill you, motherf____r? I'm from L.A." Wilson testified that appellant then went into Wilson's apartment to use the phone. Appellant called an aunt and told her that she had killed her husband. Appellant then took the decedent's truck and left.

Officer Paul Motard was called to the scene of the homicide, where he observed the body of the deceased and two .380 caliber shell casings nearby. While Officer Motard was conducting his investigation, the appellant returned and signed a consent to search the residence. Motard found a box of .380 caliber shells in appellant's bedroom closet with six shells missing. A .380 caliber semiautomatic pistol was found in appellant's purse. Donald Davis, a firearms examiner, testified that this pistol was the weapon used to fire the bullets found in and around the deceased's body.

Sergeant C.E. Elliott was also dispatched to the scene of the homicide. Elliott interviewed several witnesses and the appellant. Appellant admitted she had been drinking, and told the officer she shot her husband because they had a fight and he had been grabbing and choking her.

Appellant testified that she and the deceased had a history of domestic violence. She further testified that the gun went off accidentally as she and her husband struggled for control of it, and that the shooting was an accident.

Point of Error No. 1

In her first point of error, appellant contends the trial court erred in the guilt/innocence phase of trial by giving the jury a charge that failed to limit the definitions of "knowingly" and "intentionally" to the result of appellant's conduct. Appellant claims that murder is a result oriented crime, therefore, the necessary culpable mental state must apply to the result of the conduct and not to the conduct itself. In other words, appellant claims the jury definitions improperly allowed a conviction to be based on a finding that appellant intentionally or knowingly engaged in conduct, use of a gun, which happened to cause the result, the death of her husband.

Murder is a result oriented offense. Cook v. State, 884 S.W.2d 485, 490 (Tex.Crim.App.1994); Martinez v. State, 763 S.W.2d 413, 419 (Tex.Crim.App.1988), cert. denied, 512 U.S. 1246, 114 S.Ct. 2765, 129 L.Ed.2d 879 (1994); Lugo-Lugo v. State, 650 S.W.2d 72, 80 (Tex.Crim.App.1983). In a result oriented offense " '[w]hat matters is that the conduct ... is done with the required culpability to effect the result the Legislature has specified.' " Cook, 884 S.W.2d at 490. (emphasis in original) (quoting Alvarado v. State, 704 S.W.2d 36, 39 (Tex.Crim.App.1985)). Any instructional language relating to conduct is inconsequential. Id.

In the present case, appellant was charged with intentional murder. The definitional section of the jury charge reads as follows:

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

A person acts knowingly, or with knowledge, with respect to the nature of her conduct or to circumstances surrounding her conduct when she is aware of the nature of her conduct or that [sic] aware that her conduct is reasonably certain to cause the result.

(Emphasis added).

The Court of Criminal Appeals in Cook held that "intentional murder ... is a 'result of conduct' offense, therefore, the trial judge erred in not limiting the culpable mental states to the result of appellant's conduct." Cook, 884 S.W.2d at 491. The court went on to state that "it is error for a trial judge to not limit the definitions of the culpable mental states as they relate to the conduct elements involved in the particular offense." Id. (citing McQueen v. State, 781 S.W.2d 600 (Tex.Crim.App.1989)). 1

Applying the court's holding in Cook, we find that the definitions in the charge should not have contained references to conduct. However, a mistake in the charge does not in and of itself require reversal. Appellant did not object to the charge, therefore, the case may only be reversed if the error was so harmful that appellant was denied "a fair and impartial trial." Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985), cert. denied, 481 U.S. 1019, 107 S.Ct. 1901, 95 L.Ed.2d 507 (1987). In other words, the appellant must have suffered "egregious harm." Id. at 171. The factors to consider in determining the degree of harm are: (1) the entire jury charge; (2) the state of the evidence, including the contested issues and weight of probative evidence; (3) the argument of counsel; and (4) any other relevant information revealed by the record of the trial as a whole. Id. at 171.

In assessing harm from the inclusion of improper conduct elements in the definitions of culpable mental states, we "may consider the degree, if any, to which the culpable mental states were limited by the application portions of the jury charge." Hughes v. State, 897 S.W.2d 285, 296 (Tex.Crim.App.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1967, 131 L.Ed.2d 857 (1995) (quoting Cook, 884 S.W.2d at 492, fn. 6). In the present case, the application paragraphs of the jury charge provide as follows:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 24th day of May, 1992, in Harris County, Texas, the defendant, Latonya Denise Harrell, did then and there unlawfully, intentionally or knowingly cause the death of Jerry Harrell, by shooting Jerry Harrell with a deadly weapon, namely a firearm; or if you find from the evidence beyond a reasonable doubt that on or about the 24th day of May, 1992, in Harris County, Texas, the defendant, Latonya Denise Harrell, did then and there unlawfully intend to cause bodily injury to Jerry Harrell, and did cause the death of Jerry Harrell by intentionally or knowingly committing an act clearly dangerous to human life, namely, by shooting Jerry Harrell with a deadly weapon, namely a firearm, then you will find the defendant guilty of murder as charged in the indictment.

You are further instructed that before a person can be guilty of murder, she must have intentionally or knowingly caused the death, or she must have intended to cause serious bodily injury and have intentionally or knowingly committed an act clearly dangerous to human life that caused the death of the deceased.

(Emphasis added).

The application paragraphs in this case, and the definitions of "intentionally and knowingly," are nearly identical to those in Hughes, 897 S.W.2d at 296. There the court noted that, although the definitions of "intentionally" and "knowingly" set forth three alternative elements of conduct, when viewed in their factual context it was apparent which conduct element applied to the offense. Id. The application paragraph in Hughes stated that appellant "did intentionally and knowingly cause the death of [the victim]." Id. Referring back to the definitions of culpable mental states, the court held: "it is obvious that the 'result of conduct' and 'cause the result' language are the applicable portions of the full code definitions." Id. The court concluded:

... because the facts, as applied to the law in the application paragraph, pointed the jury to the appropriate portion of the definitions, no harm resulted from the court's failure to limit the definitions of culpable mental states to result and circumstances of conduct.

Id. at 296-97. The Court of Criminal Appeals reached the identical result in Patrick v. State, 906 S.W.2d 481, 493 (Tex.Crim.App.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1323, 134 L.Ed.2d 475 (1996).

We conclude that the facts as applied to the law in the application paragraph pointed the jury to the proper result oriented culpable mental state portion of the definitions. Consequently, no harm resulted from the court's failure to...

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6 cases
  • Hill v. State
    • United States
    • Texas Court of Criminal Appeals
    • November 6, 2002
    ...and State, yet requires the parties' consent to continue to a verdict with eleven jurors once the jury charge has been read.13 In Harrell v. State,14 this Court affirmed the Fourteenth Court of Appeals which had upheld the defendant's right to expressly waive a twelve member jury and consen......
  • Bazanes v. State
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    • Texas Court of Appeals
    • February 18, 2010
    ...it does factor into the harm analysis. See Cook v. State, 884 S.W.2d 485, 492 n. 6 (Tex.Crim.App.1994); Harrell v. State, 923 S.W.2d 104, 107-09 (Tex.App.-Houston 14th Dist.), vacated on other grounds, 930 S.W.2d 100 (Tex.Crim.App. 1996). "Where the application paragraph correctly instructs......
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    • Texas Court of Appeals
    • October 21, 2008
    ...it does factor into the harm analysis. Cook v. State, 884 S.W.2d 485, 492 n.6 (Tex. Crim. App. 1994); Harrell v. State, 923 S.W.2d 104, 107B08 (Tex. App.-Houston [14th Dist.]), vacated on other grounds, 930 S.W.2d 100 (Tex. Crim. App. 1996). "Where the application paragraph correctly instru......
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    • United States
    • Texas Court of Criminal Appeals
    • December 2, 1998
    ...holding that Appellant waived her right to a jury of twelve and agreed to proceed with eleven jurors. Harrell v. State, 923 S.W.2d 104 (Tex.App.--Houston [14th Dist.] 1996). Appellant filed a petition for discretionary review, arguing that a jury of twelve cannot be waived. We granted Appel......
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2 books & journal articles
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    • United States
    • James Publishing Practical Law Books Texas Criminal Jury Charges. Volume 1-2 Volume 2
    • May 4, 2021
    ...v. State 743 S.W.2d 229 (Tex. Crim. App. 1987) 9:680 Harrell v. State 852 S.W.2d 521 (Tex. Crim. App. 1993) 8:1180 Harrell v. State 923 S.W.2d 104 (Tex. App.—Houston [14th Dist.] pet. granted) rev’d on other grounds , 980 S.W.2d 661 (Tex. Crim. App. 1998) 1:185 Harris v. State 486 S.W.2d 88......
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    • James Publishing Practical Law Books Texas Criminal Jury Charges. Volume 1-2 Volume 1
    • May 4, 2021
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