Moore v. State

• Decision Date: 10 June 1998
• Docket Number: No. 72543,72543
• Citation: 969 S.W.2d 4
• Parties: Frank MOORE, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 4

969 S.W.2d 4

Frank MOORE, Appellant, v. The STATE of Texas.

No. 72543.

Court of Criminal Appeals of Texas,

En Banc.

June 10, 1998.

Vincent D. Callahan, San Antonio, for appellant.

Angela Moore, Assistant District Attorney, San Antonio, Matthew Paul, State's Attorney, Austin, for the State.

Before the court en banc.

OPINION

WOMACK, Judge, delivered the opinion of the Court in which BAIRD, MANSFIELD, PRICE and HOLLAND, Judges, joined.

The appellant was convicted of the capital murder of Samuel Boyd and sentenced to death. This appeal followed. We shall sustain the appellant's seventh and eighth points of error, that the trial court erred in denying his requests for charges authorizing the jury to convict him of the lesser included offenses of voluntary manslaughter and murder, respectively.

Evidence

The evidence presented at trial showed that the appellant shot and killed two individuals after an altercation in the parking lot of the Wheels of Joy Club around 2:00 a.m. on January 21, 1994. The persons killed were Samuel Boyd, 23 years old, and Patrick Clark, 15 years old. The first peace officer on the scene found Boyd dead or dying in the passenger seat of an automobile and Clark lying dead next to the driver's door. An investigator found shell casings in a location that suggested that the shots were fired from the left rear of the vehicle. This evidence comported with the deputy medical examiner's testimony that the tracks of the bullet wounds were generally from back to front, and left to right. Boyd had been wounded by six bullets, and Clark by five. Boyd's blood contained 0.28 grams per deciliter of ethanol alcohol. Clark's blood contained 0.15 grams per deciliter of ethanol, as well as 0.25 milligrams per liter of diazepam, and 0.33 milligrams per liter of nordiazepam. The latter two controlled substances are muscle relaxants. Both victims were acutely intoxicated at the times of their deaths, in the opinion of the medical expert.

The State and the appellant each called one eyewitness. The State called Angela Wallace, who lived in another city and who had not previously known anyone who was involved in the offense. She testified that she had gone to the Wheels of Joy Club with her friend, who was Boyd's girlfriend. During the several hours she spent in the nightclub, Wallace saw the appellant shake hands with Boyd, and watched the two speak and laugh. She also saw Clark in the club, but did not see him have any contact with the appellant. Wallace testified that she did not see Boyd or Clark acting drunk or argumentative. As the club prepared to close, the appellant asked Wallace to save him the last dance and to give him her telephone number. The appellant was interrupted when a man stopped and whispered to him; the two men then left the club. Wallace identified this other man from photographs as Ivory Sheffield.

When the club closed, Wallace left and went to the parking lot. She testified that the appellant, Boyd, Clark, and another man, "had a confrontation...[an] exchange of words and someone pushed somebody.... It just broke up. Just everybody started scattering a little bit."

Wallace saw Clark's car come into the parking lot and stop. She stated that the car did not come close to striking the appellant, and it did not back up. While Boyd must have at some point gotten into Clark's car, Wallace did not see him do it. Wallace testified that she saw the appellant walk towards the back of Clark's car. Sheffield got a rifle from the trunk of a Cadillac and tossed it to the appellant, who started shooting into Clark's car. Then the appellant gave the gun back to Sheffield and left in the Cadillac. Sheffield said, "Who else wants some of this?" and walked around with the gun. Fearing for her safety, Wallace left the crime scene.

The appellant called the other eyewitness, his half-brother, Tyron Parks, who gave a different version of the confrontation. Parks testified that he was at the Wheels of Joy Club on the night of the homicide. He saw Clark driving his car up and down the street, "burning rubber...acting crazy." Once inside the club, Parks saw Boyd and Clark "bumping into people, dancing crazy," and that they appeared to be intoxicated. Boyd and Clark left the club after being told they had to calm down or leave.

When Parks went outside for some fresh air, he saw Boyd and a man called Braskin arguing with a girl. The argument became an assault; Braskin hit the girl, and Boyd put out a cigarette on her face. Parks intervened and said to the two men, "That's uncalled for." Boyd responded with an obscenity and tried to grab Parks, while Braskin looked as though he was reaching for a pistol. Parks hid behind a Cadillac, and then ran towards the door of the Club just as the appellant and Robert Maze, Parks' cousin, were coming out.

Parks testified that the two groups of men--Parks, Maze and the appellant in one group, Boyd and Braskin in the other--confronted each other in the parking lot. The appellant said, "Where's the problem?" Boyd pushed the appellant. The appellant said, "That's uncalled for." Boyd next pushed Maze, and then grabbed for Parks, saying, "You're the one I want." Parks grabbed Boyd's shirt and considered cutting his throat, but he decided not to and threw Boyd to the ground.

In the meantime, Clark was in his automobile on the street, "revving" the motor. Boyd ran and jumped into the car. Clark sped into the parking lot and tried to run over the appellant and Parks. Parks testified, "[H]e was peeling rubber. I had to get out of the way, other than that he would have squished me between the car--me and my brother." Parks pushed the appellant out of the way of the car, and then jumped to the side to avoid being struck. Clark backed up the car and again tried to hit the appellant, who jumped out of the way.

Somebody in the crowd threw the appellant a rifle. Then someone yelled, "They've got a gun," at which point the appellant turned around and shot Boyd and Clark. Parks said on direct examination that Clark was shot in the car; on cross-examination he said that Clark had gotten out of the car before he was shot. After the shooting, the appellant left.

Lesser Included Offenses

Whether an offense is a lesser included offense is determined by application of Article 37.09 of the Code of Criminal Procedure, which reads:

An offense is a lesser included offense if:

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise included offense.

This court has implemented a two-step test to determine when a charge on a lesser included offense should be given. See Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Cr.App.1985); Royster v. State, 622 S.W.2d 442, 444 (Tex.Cr.App.1981) (plurality opinion). The first step is to decide whether the offense comes within Article 37.09. We usually say at this step that "the lesser included offense must be included within the proof necessary to establish the offense charged." See, e.g., Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Cr.App.1993); Aguilar v. State, 682 S.W.2d at 558; Royster v. State, 622 S.W.2d at 444. This statement of the rule is a paraphrase of the language of Article 37.09(1), which describes the kind of lesser included offense most frequently encountered. Of course, another definition of lesser included offense in Subdivisions (2), (3), or (4) of Article 37.09 may apply as well in the first step of a given case. See Schweinle v. State, 915 S.W.2d 17, 18 (Tex.Cr.App.1996). The first step is to apply the relevant definition to the offense charged and the offense in question.

The second step of the Aguilar /Royster test requires an evaluation of the evidence to determine whether there is some evidence that would permit a rational jury to find that the defendant is guilty only of the lesser offense. Schweinle v. State, 915 S.W.2d at 18; Rousseau v. State, 855 S.W.2d at 672; Aguilar v. State, 682 S.W.2d at 558; Royster v. State, 622 S.W.2d at 444; McBrayer v. State, 504 S.W.2d 445, 447 (Tex.Cr.App.1974); Daywood v. State, 157 Tex.Cr. 266, 267-69, 248 S.W.2d 479, 481 (1952). The evidence must be evaluated in the context of the entire record. Ramos v. State, 865 S.W.2d 463 (Tex.Cr.App.1993). There must be some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser included offense. See Bignall v. State, 887 S.W.2d 21, 23 (Tex.Cr.App.1994). The court may not consider whether the evidence is credible, controverted, or in conflict with other evidence. Havard v. State, 800 S.W.2d 195, 216 (Tex.Cr.App.1989). Any evidence that the defendant is guilty only of the lesser included offense is sufficient to entitle the defendant to a jury charge on the lesser included offense. See Bignall v. State, 887 S.W.2d at 23.

Voluntary Manslaughter

In his seventh point of error, the appellant contends that the trial court erred when it refused to instruct the jury on the lesser included offense of voluntary manslaughter. ¹ The first step is to decide whether voluntary manslaughter is a lesser included offense of capital murder. We have held that it is, because it is a lesser included offense of murder, which in turn is a lesser included offense of capital murder. Havard v. State, 800 S.W.2d at 216. That voluntary manslaughter is a lesser included offense of murder is well settled, but the reason why is not so clear.

This Court first applied the definition of lesser included offense in Code of Criminal...