Keen v. State

• Decision Date: 15 October 2021
• Docket Number: 03-19-00744-CR
• Parties: James Craig Keen, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

James Craig Keen, Appellant v. The State of Texas, Appellee

No. 03-19-00744-CR

Court of Appeals of Texas, Third District, Austin

October 15, 2021

Do Not Publish

FROM THE 428TH DISTRICT COURT OF HAYS COUNTY NO. CR-16-0558-D, THE HONORABLE WILLIAM R. HENRY, JUDGE PRESIDING

Before Justices Goodwin, Kelly, and Smith

MEMORANDUM OPINION

CHARI L. KELLY, JUSTICE.

James Craig Keen shot and killed his girlfriend, Erin Wright. A jury convicted him of murder, see Tex. Penal Code § 19.02(b), and it assessed his punishment at life imprisonment and a $10, 000 fine, see id. §§ 12.32, 19.02(c). The trial court entered judgment on the jury's verdict and punishment assessment including making a deadly-weapon finding. In nine issues on appeal, Keen contends that (a) his constitutional rights were violated by the admission into evidence of jail-call recordings with his father and (b) the jury charge erroneously authorized a murder conviction based on a felony-murder theory whose predicate felony was reckless aggravated bodily-injury assault. Because he did not preserve his jail-call complaints about the recordings that were admitted into evidence, because another of the recordings was not admitted into evidence, and because the charge error did not egregiously harm him, we affirm.

BACKGROUND

Keen and Wright had a romantic relationship for some time. They each had children from other relationships-Keen a daughter Leah-and then had a daughter together, Daisy. When Wright was pregnant with Daisy, the police responded to a domestic-violence call at Wright and Keen's home and saw Wright "crying uncontrollably" outside. She said that he had slapped her and knocked things out of her hand after ordering her to pack and move out. After the police showed up, Keen stood on the front porch and was on his cell phone telling someone on the other end, "I fucked up" and "I slapped her." Officers escorted Wright back inside so she could pack and saw the home in disarray with damage everywhere. A glass-top coffee table was smashed, glass was all over the floor, the dining-room table and some chairs were damaged and spread everywhere, an accent table was damaged, and other items were strewn about. Keen admitted that he caused all the damage, and Wright subsequently moved out of state.

After several years apart, Wright moved back in with Keen and Leah along with another daughter of Wright's with another man Abby. Leah and Daisy were ten years old and Abby six. Shortly after Wright returned, the relationship again turned volatile, culminating in an argument throughout the home on Easter 2016. Meanwhile, Leah kept to herself in her room, and Daisy ran outside. Abby, while Keen and Wright argued in the kitchen, clung to her mom's hand.^[1]Keen demanded that Wright and her daughters move out. So contentious had the relationship become that Keen had recently told a longtime close friend that Wright "was a 'dead bitch'-a 'walking dead bitch,' she just didn't know it yet." Another time, as he told the close friend and after another argument between Wright and him, Keen went to his room and "raised" his shotgun but put it away before doing anything else.

In the kitchen, Wright threw a glass on the floor, and it shattered. Keen fetched a handgun from atop the cabinets, and it had a round already chambered. Abby did not feel like Keen was afraid of her mom. Still, Keen aimed-exactly where, the evidence conflicted-and shot Wright in the upper chest. She went outside and collapsed in the driveway. The bullet had perforated her aorta, and she shortly died from blood loss. Daisy hurried to neighbors' houses for help. At the third house she tried someone answered, but by the time Daisy started returning to her mom, a married couple who had been driving by had pulled over, gotten out, and called 911.

A woman from the couple saw Abby crying, felt Wright's faint pulse, and saw Daisy come back from up the street and Leah come outside. She also saw Keen emerge and heard him on the phone saying, calmly: "She wouldn't leave. She wouldn't get out. Come get the girls. I shot her." He was talking to his father, telling him that "there had been an accident and there had been a shooting" and to get the children because "he was going to jail." Before this, at about 7:50 p.m., Keen had called 911, saying that there had been a shooting, help should hurry, and "she wouldn't leave" and quickly hanging up. The woman looked at Keen but saw no injuries on him and never heard him say that his life had been in danger or anything of the sort. He tossed his phone to the woman's husband, asking him to talk to Keen's father, then raised his arms "like he was surrendering." The husband also saw no injuries on Keen. Police and EMTs arrived and realized that Wright was dead. They put the three girls into an ambulance, and officers handcuffed the "agitated," "angry" Keen and began investigating.

Officers searched the home and interviewed Keen after reading him his Miranda rights. He told a detective that Wright had chased him around the home and threw things, he locked her outside but then let her back in after she tried kicking the door down, he felt scared, there were broken items in the kitchen, and then he grabbed the handgun. He did not mention a warning shot or warning Wright in any way before he fired the handgun. And upon searching the home, the detective saw no evidence of anyone's having tried to kick the door in. The officers and EMTs also noticed Keen's size-roughly 6′3″ and 235 lbs.-which was "a lot bigger" than Wright's-confirmed at the autopsy to be 5′6.5″ and 148.5 lbs. Officers inspected Keen's body and took pictures of him. He did not show any injuries, including no cuts on his feet, and did not complain about any. One detective saw no cuts, bruises, or other injuries on Keen or "anything that would have led [the detective] to believe that" Keen "had been in some kind of assaultive exchange." Throughout the interviews, Keen never expressed that Wright had hit or scratched him or that he thought his life had been in danger. The officers booked Keen into jail that night.

During his time in jail, Keen communicated with his father and the close friend. He talked with the close friend about the shooting. Keen relayed that his relationship with Wright had "been adversarial throughout the years and caused him a lot of resentment towards her" and that leading up to her moving back in, the two argued a lot and struggled to get along. He "despised" her and called her "the devil's spawn." The friend had mixed emotions about Wright's and the children's safety because the friend had known Keen to be, "kind of, a hot head and has problems getting along with folks" to the point that the friend had heard a "lot of threats come out of [Keen] over the years" that the friend "didn't know whether to take . . . real seriously or not." The friend even once warned Keen to get rid of all his weapons. Keen admitted to the shooting and expressed no regrets about killing Wright. In the friend's telling, Keen "took complete ownership of it" and said that "it was fate, that that was supposed to happen," and

that God creates some people for destruction and other people for righteousness and that [Keen] was one that God has chosen his method and weapon of destruction and that he was finally at peace with what had taken place and . . . everything was good that that happened and he was OK that it happened.

In fact, Keen explained to the friend "that he was acting on behalf of God and eliminating the evil from this world and that [Wright] was evil." But Keen never mentioned to the friend anything about defending himself from Wright.

Keen was indicted for murder, and the case was tried to a jury. He put on a case-in-chief and testified. He said that he and Wright got along well and talked regularly before her move back to Texas. But things grew "stormy," and the relationship "rocky," once she moved in. He said that he would argue with her about her drinking and that she was erratic and unpredictable when drunk, bouncing between calm and excited or belligerent.

He also offered a version of the events leading up to the shooting, one often at odds with Abby's. He said that he and Wright's argument began around 7:30 p.m. after he had been working on his taxes all day without eating. After Wright got home from shopping, the argument began with her "yelling at Leah over a conflict Leah and Daisy had." "[A]t that moment," Keen said, "I realized that [Wright] was inebriated," so he politely told her, "I'd like for you to leave." She reacted with hostility, screaming at him and getting "right in [his] face." She chased him through the home, and though he locked himself in a bathroom for a time, she kept antagonizing. After growing more "agitated" and "aggressive[]" himself, he demanded that she leave, and she went outside. He locked the front door, but she "started kicking the door and screaming that she was gonna kick the door down," so he let her back in. She resumed yelling in his face, so close that "she was invading [his] personal space," and though admittedly much larger than her, he felt "threatened" because she was in such "close a proximity," which he called "threatening in itself." She even "bumped into [him] several times," "trying to get [him] to strike her."

He "retreated to the kitchen," she collected her keys and purse and followed, and he "grabbed the firearm from above the cabinet." At no point, he admitted, did she have a deadly weapon. Although Abby testified that Keen climbed on the counter to grab the gun, Keen testified that he could reach it standing on the floor. And although Abby testified that when Keen fired she was standing beside her mom, still holding her hand, Keen testified...