State v. Shelton

• Decision Date: 30 November 1993
• Docket Number: No. 12-91-00074-CR,12-91-00074-CR
• Citation: 869 S.W.2d 513
• Parties: The STATE of Texas, Appellant, v. Richard SHELTON, Appellee.
• Court: Texas Court of Appeals

Page 513

869 S.W.2d 513

The STATE of Texas, Appellant, v. Richard SHELTON, Appellee.

No. 12-91-00074-CR.

Court of Appeals of Texas Tyler.

Nov. 30, 1993.

Amy Blalock, Asst. Dist. Atty., Tyler, for appellant.

F.R. Files, Jr., Tyler, for appellee.

RAMEY, Chief Justice.

This is an appeal by the State of Texas of the trial court's action in granting the Appellee, Richard Shelton ("Shelton"), a new trial. Shelton had been indicted for the murder of Coby Dean Chancellor ("Coby"); he was convicted by a jury of the lesser-included offense of involuntary manslaughter and his punishment assessed at ten years confinement and a $5,000 fine. The trial court sentenced Shelton and made an affirmative finding of Shelton's use of a deadly weapon. Thereafter, Shelton's motion for new trial was timely filed and subsequently granted on March 18, 1991. TEX.R.APP.P. 31.

Coby, 15, was shot and killed inside his house on the night of March 27, 1986, when Shelton fired his cousin Mitchell Shelton's ("Mitchell") .12 gauge shotgun into the house fifty to seventy five feet from the door. The trial court announced no reason for granting the new trial. It is not necessary that the court's grounds for the new trial be one of those catalogued in TEX.R.APP.P. 30(b). State v. Evans, 843 S.W.2d 576, 578 (Tex.Cr.App.1992). The order for a new trial was entered after a brief hearing in which no proof was adduced. The State appeals the trial court's ruling pursuant to TEX.CODE CRIM.PROC.ANN. art. 44.01(a)(3).

Our standard of review is whether the trial court abused its discretion in granting the new trial. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Cr.App.1993); State v. Lyons, 812 S.W.2d 336, 341 (Tex.Cr.App.1991). This standard has been interpreted to mean that a case will be reversed "only when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree." Cantu v. State, 842 S.W.2d 667, 682 (Tex.Cr.App.1992).

Though the trial court stated no reason for her ruling, the State need defend only against the allegations asserted in Shelton's motion for new trial. State v. Gonzalez, 855 S.W.2d at 694-95. Here, the motion for new trial had specified five grounds of trial court error: (1) in denying Shelton's motion for a finding of not guilty as to the murder indictment after the State had rested; (2) in denying Shelton's motion for a finding of not guilty as to the murder indictment after both sides had rested and closed; (3) in instructing the jury that they could find Shelton guilty of the offense of murder; (4) in instructing the jury that they could find Shelton guilty of the offense of involuntary manslaughter; and (5) in making an affirmative finding that Shelton had used and exhibited a deadly weapon in the commission of the offense of involuntary manslaughter. Shelton additionally asserted that the verdict was contrary to the law and evidence in that "[t]he evidence taken in the light most favorable to the State will not support the finding of guilty beyond a reasonable doubt as to the offense of involuntary manslaughter". ¹ The State must negate each of the grounds asserted in the motion for new trial.

The first three of these grounds relate to the trial court's denial of Shelton's motions to find him not guilty to the murder indictment and in instructing the jury that they could find him guilty of murder under Tex.Pen.Code Ann. § 19.02(a)(2) (Vernon Supp.1991). Though not found guilty of murder, Shelton argues that because the murder count was erroneously submitted to the jury, he was deprived of a fair trial.

Shelton urges that the basis for these three grounds of error is that the murder indictment failed to assert that he intended to cause serious bodily injury to the specific individual who was killed, Coby Dean Chancellor. Shelton originally was charged with murder under both TEX.PENAL CODE ANN. § 19.02(a)(1) and (2). After the State rested its case, the trial court found Shelton not guilty of murder as to 19.02(a)(1) which ruling thereby eliminated the culpable mental state that Shelton acted "knowingly, or with knowledge" at the time of the shooting, pertaining to which the State offered circumstantial evidence that Shelton was "aware that his conduct is reasonably certain to cause the result." TEX.PENAL CODE ANN. § 6.03(b). Under the remaining murder indictment, 19.02(a)(2), the requisite mental state was limited to Shelton's intention, if any, to cause serious bodily injury to an individual.

The accused did not seek to quash the murder indictments, but contended that the State failed to prove his intention to cause serious bodily injury to the deceased. Shelton cites two cases for the proposition that under 19.02(a)(2) the victim must be that specific individual toward whom the accused intended seriously bodily injury. Ortiz v. State, 651 S.W.2d 764, 767 (Tex.Cr.App. En banc 1983); Depauw v. State, 658 S.W.2d 628, 633 (Tex.App.--Amarillo 1983, pet. ref'd.). There is language in these opinions that the State must allege and "prove that the accused intended to cause serious bodily injury to the deceased." ² Ibid, at 633.

Here, there was no evidence of an intention by Shelton to cause serious bodily injury to Coby or any other occupant of the Chancellor house. The State proved no animosity between the Sheltons and the Chancellor family; to the contrary, there was undisputed evidence that Shelton had brought food and some clothing to and visited the Chancellor family at their house on several occasions as late as 1979 and that prior to the shooting some of the Shelton and Chancellor children had attended public school together; there had been no contact between Shelton and any of the Chancellors for several years prior to the shooting. Shelton testified that some unidentified person had previously told him that the Chancellors had moved from the house where the shooting occurred. The only explanation for the shooting in the record was Shelton's desire to fire Mitchell's recently modified firearm.

There was, therefore, no evidence of Shelton's intent to harm Coby. Criminal responsibility by "transferred intent" is inapplicable because it requires a specific intent to harm "a different person", which intent was not shown here. TEX.PENAL CODE ANN. § 6.04(b)(2). An accused's intent may, however, be inferred by the means used and the nature of the wounds inflicted; i.e., where a deadly weapon is fired at close range and death results, the law presumes the requisite intent. Womble v. State, 618 S.W.2d 59, 64 (Tex.Cr.App.1981). We hold, however, that the facts of this occurrence do not give rise to such a presumption.

This tragic event produced no evidence of Shelton's intent to cause serious bodily injury as in a drive-by shooting or where an accused fired a gun into a crowd of people ³ or into a moving train ⁴, a moving automobile ⁵ or a building which the accused knew to be occupied ⁶. It is not necessary that the indictment name the specific victim; it is even sufficient that the charging instrument allege that the accused intended to cause serious bodily injury to a person or persons unknown to the grand jury as long as the evidence showed that the accused intended to harm someone. Ishmael, 688 S.W.2d at 258. There was no evidence, however, that Shelton had any intent to cause serious bodily injury to any person. We hold that under the state of this record, the trial court erred in failing to grant Shelton's motion for a finding of not guilty on the § 19.02(a)(2) murder charge.

Shelton contends that the court's failure to give a not-guilty instruction to the § 19.02(a)(2) murder indictment denied him a fair trial as guaranteed by the UNITED STATES and the TEXAS CONSTITUTIONS. Shelton presents no argument and cites no authority to support this contention. Furthermore, such error was harmless beyond a reasonable doubt by virtue of the jury's failure to find Shelton guilty of murder. Trial errors, even those of constitutional magnitude, do not compel reversal of an accused's conviction when they are harmless beyond a reasonable doubt. TEX.R.APP.P. 81(b)(2); Garza v. State, 828 S.W.2d 432, 436 (Tex.App.--Austin 1992, pet. ref'd); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Hill v. State, 480 S.W.2d 200, 203 (Tex.Cr.App.1972), cert. denied, 409 U.S. 1078, 93 S.Ct. 694, 34 L.Ed.2d 667. Here, no attempt was made to show how Shelton was harmed by the submission of the murder charge. If one of the first three asserted grounds in the motion was the reason that the trial court granted the new trial, the decision was erroneously made and an abuse of the court's discretion.

The parties agree that Shelton's fourth ground for a new trial, considered with his other contention that the evidence did not support the finding of guilt of involuntary manslaughter, beyond a reasonable doubt, presents the issue of insufficiency of the evidence to support the verdict. Stated otherwise, the trial court abused its discretion in granting a new trial if any rational trier of fact, when viewing the evidence in the light most favorable to the verdict, could have found the essential elements of the offense beyond a reasonable doubt. State v. Daniels, 761 S.W.2d 42, 45 (Tex.App.--Austin 1988, pet. ref'd).

The gist of involuntary manslaughter is "recklessly causing the death of an individual". TEX.PENAL CODE ANN. § 19.05(a)(1). This degree of recklessness is defined in TEX.PENAL CODE ANN. § 6.03(c) (Vernon 1974). It involves conscious risk creation in which the actor is aware of the risk surrounding his conduct or the results thereof, but consciously without justification disregards that risk. Lewis v. State, 529 S.W.2d 550 (Tex.Cr.App.1975). ⁷

Indisputedly, Shelton voluntarily and intentionally fired the gun into the Chancellor house. "It is virtual surplusage to point out that firearms are dangerous instrumentalities, and that their very...