Opinion
No. 04-17-00329-CR
06-06-2018
Brian FAZIO, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2016CR5284
Honorable Melisa Skinner, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Irene Rios, Justice AFFIRMED
Brian Fazio was charged with murder and convicted by a jury of the lesser included offense of manslaughter. On appeal, Fazio contends the trial court erred by: (1) denying his motion to suppress; (2) sua sponte instructing the jury on the lesser included offense of manslaughter; and (3) denying his request to instruct the jury on the lesser included offense of criminally negligent homicide. Fazio also challenges the sufficiency of the evidence to support his conviction. We affirm the trial court's judgment.
BACKGROUND
Fazio and the complainant Amber Lentz were in a long-term relationship. Fazio referred to Lentz as his wife. At the time of Lentz's death, Fazio and Lentz were homeless and living in a drainage tunnel. Fazio was observed pushing Lentz's unresponsive body in a shopping cart across the parking lot of a business located in a strip center immediately adjacent to the drainage tunnel. A bystander who observed Fazio summoned Officer Chase Mandry, who was at a car show in the parking lot of another business located in the strip center. Officer Mandry and a nurse who was also present at the car show both determined Lentz had no pulse and was not breathing; however, they performed CPR on Lentz until EMTs arrived at the scene. Lentz was transported to a hospital where she was pronounced dead.
Fazio was charged with murder. In the jury charge, the trial court included an instruction on the lesser included offense of manslaughter but denied Fazio's request to include an instruction on the lesser included offense of criminally negligent homicide. The jury found Fazio guilty of manslaughter, and Fazio appeals.
MOTION TO SUPPRESS
In his first issue, Fazio asserts the trial court erred in denying his motion to suppress his recorded statement because he was in custody when the statement was taken but was not given the statutory warnings required by article 38.22 of the Texas Code of Criminal Procedure. Fazio contends he was in custody because, at the time of the interview, he was wearing an ankle monitor as a condition of his bond for a pending theft charge.
"A trial judge's ultimate 'custody' determination presents a 'mixed question of law and fact.'" Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007) (internal quotation omitted). "Therefore, we afford almost total deference to a trial judge's 'custody' determination when the questions of historical fact turn on credibility and demeanor." Id. at 526-27. "Conversely, when the questions of historical fact do not turn on credibility and demeanor, we will review a trial judge's 'custody' determination de novo." Id. at 527.
Although Fazio relies on the ankle monitor to assert he was in custody when he was interviewed, the Texas Court of Criminal Appeals has declined to institute a bright-line rule regarding custody even when discussing an incarcerated inmate. See Herrera, 241 S.W.3d at 531. Instead, the court held its "traditional 'custody' analytical framework" applies when an inmate is questioned about an offense other than the offense for which the inmate is incarcerated. Id. at 532. Similarly, we hold the same framework applies in determining whether Fazio was in custody.
Under the traditional framework, "[w]e evaluate 'custody' on an ad hoc basis, after considering all of the (objective) circumstances and apply the 'reasonable person' standard." Id. (internal quotations omitted). "'Two discrete inquiries are essential to the determination [of "custody"]: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.'" Id. (quoting Thompson v. Keohane, 516 U.S. 99, 112 (1995)). "[A]n evaluation of the circumstances surrounding an interrogation in this context should include an examination of ... factors [that] include, but are not necessarily limited to:
• the language used to summon the inmate;Id.
• the physical surroundings of the interrogation;
• the extent to which the inmate is confronted with evidence of his or her guilt;
• the additional pressure exerted to detain the inmate or the change in the surroundings of the inmate which results in an added imposition on the inmate's freedom of movement; and
• the inmate's freedom to leave the scene and the purpose, place, and length of the questioning."
In this case, Ranger Keith Pauska and Detective Michael Cuevas went to the homeless shelter where Fazio was residing. As noted, Fazio was wearing an ankle monitor as a condition of his release on bond for a pending theft charge. Ranger Pauska and Detective Cuevas were escorted to a supervisor's office at the shelter, and Fazio was informed by shelter staff that someone wanted to speak with him at the front gate. Fazio was not placed in handcuffs and was told he did not have to speak with the officers and could leave at any time he wanted. At the suppression hearing, Fazio testified he voluntarily agreed to the interview. Both the officers and Fazio testified Fazio ended the interview by getting up and leaving the room, and Fazio admitted the officers did not try to force him to continue the interview. Finally, the interview only lasted approximately thirty minutes.
After considering the applicable factors, we hold Fazio was not in custody at the time of the interview. The officers were in an office at the homeless shelter where Fazio was residing, and the shelter staff did not use any coercive language to summon Fazio to the office. The officers informed Fazio he could leave at any time. Finally, given that Fazio himself ended the interview by leaving the room, no reasonable person in those circumstances would have felt he was not at liberty to terminate the interrogation and leave. Fazio's first issue is overruled.
LESSER INCLUDED OFFENSES AND SUFFICIENCY OF THE EVIDENCE
In his second issue, Fazio contends the trial court erred in sua sponte submitting the lesser included offense of manslaughter in the jury charge absent a proper and timely request. In addition, Fazio contends the trial court erred in submitting the offense of manslaughter because the evidence is insufficient to show he was aware of a substantial and unjustifiable risk that his conduct would result in Lentz's death. In his third issue, Fazio contends the trial court erred in denying his request to include the lesser included offense of criminally negligent homicide in the jury charge. Finally, in his fourth issue, Fazio contends the "record is devoid of any evidence indicating he was aware of a substantial and unjustifiable risk that his conduct [would] result [in Lentz's] death."
Although Fazio refers to both legal and factual sufficiency, the Texas Court of Criminal Appeals has held the "legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt." Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)
We first reject Fazio's contention that the trial court could not sua sponte submit a lesser included offense in the absence of a request. See Humphries v. State, 615 S.W.2d 737, 738 (Tex. Crim. App. 1981) (holding trial court did not err in submitting charge on lesser included offense of voluntary manslaughter "even over appellant's objection"); Grey v. State, 298 S.W.3d 644, 655 (Tex. Crim. App. 2009) (Cochran, J., concurring) (noting trial judge may in his discretion "with or without request (and even over the parties' objection), include an instruction on a lesser-included offense"); Ford v. State, 38 S.W.3d 836, 840 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd) (noting "the trial court is authorized to sua sponte include a charge on a lesser offense; a trial court is not restricted to submitting lesser included offenses only when the defendant has properly requested them"); McQueen v. State, 984 S.W.2d 712, 717 (Tex. App.—Texarkana 1998, no pet.) ("If there is sufficient evidence to support a conviction on a lesser included offense, the trial court is authorized to charge the jury on that offense, even if the defendant does not request the issue and even over the defendant's objection."). Instead, a trial court may sua sponte submit a lesser included offense in a charge as long as the two-part test governing the submission of a lesser included offense is met. See Bullock v. State, 509 S.W.3d 921, 924 (Tex. Crim. App. 2016). Similarly, Fazio was required to meet this same test for the trial court to be required to submit his requested lesser included offense.
Under this test, "[t]he first step is to determine whether the requested instruction pertains to an offense that is a lesser-included offense of the charged offense." Id. Neither Fazio nor the State dispute that both manslaughter and criminally negligent homicide are lesser included offenses of murder. See Cardenas v. State, 30 S.W.3d 384, 392 (Tex. Crim. App. 2000).
"The second step in the analysis asks whether there is evidence in the record that supports giving the instruction to the jury." Bullock, 509 S.W.3d at 924-25. Under this second step, an instruction on a lesser-included offense is proper "when there is some evidence in the record that would permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser-included offense." Id. at 925. "The entire record [must be] considered; a statement made by the defendant cannot be plucked out of the record and examined in a vacuum." Id. "Anything more than a scintilla of evidence is adequate." Id. "Although this threshold showing is low, it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather there must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted." Id. "[T]he standard may be satisfied if some evidence refutes or negates other evidence establishing the greater offense or if the evidence presented is subject to different interpretations." Id. "The evidence must establish that the lesser-included offense is a valid, rational alternative to the charged offense." Id.
In this case, the evidence established Lentz had multiple bruises on her body, including a massive bruise on the left side of her chest in the area of her breast. Eric Burnside, one of the EMTs who responded to the scene, testified Lentz had bruising in several random places people do not normally have bruises, including the bruise on her left breast which Burnside testified would take massive force to cause. While riding in the passenger seat of the ambulance transporting Lentz to the hospital, Fazio told Burnside he hit Lentz because she was not responding to his efforts to talk to her. Fazio demonstrated the manner in which he hit Lentz to Burnside, who demonstrated the hit to the jury. Fazio further told Burnside that Lentz fell back when he hit her and hit her head on the ground. Another officer testified Fazio later told him he returned from a grocery store and found Lentz unresponsive. In his interview, Fazio stated he did not hit Lentz. The medical examiner testified to the numerous bruises and injuries she observed, including bruises to Lentz's neck, and testified Lentz's brain was swollen and bleeding. The medical examiner opined Lentz's cause of death was blunt force injury to the head but also could not rule out an "asphyxia component." The medical examiner further opined the pattern of Lentz's injuries showed they were not accidental. Finally, two witnesses testified they observed Fazio physically abusing Lentz a few months before her death. One witness saw Fazio grabbing Lentz's hair in one hand while punching her in the head with his other fist as she was crouched in a fetal position. The other witness testified Fazio treated Lentz like property or a slave and once saw Fazio pinning Lentz to the ground and choking her.
Fazio contends the foregoing was no evidence that he was aware of but consciously disregarded a substantial and unjustifiable risk that his conduct would result in Lentz's death. See TEX. PENAL CODE ANN. §§ 6.03(c);19.04(a) (West 2011). Fazio argues Burnside's testimony does not show that he was aware that hitting Lentz created an unjustifiable risk that she would die as a result. The evidence, however, established that Fazio and Lentz were in a concrete drainage tunnel. Burnside testified the hit had to be of massive force to cause the bruise to Lentz's left breast. And, Burnside demonstrated the manner in which Fazio hit Lentz to the jury. Finally, the jury heard testimony that Fazio initially admitted hitting Lentz but later denied hitting her when questioned by officers. The foregoing is at least a scintilla of evidence that Fazio was aware of but consciously disregarded the risk that Lentz would fall back and hit her head on the ground of the concrete drainage tunnel given the manner in which he hit her and the amount of force he used. See Willis v. State, 761 S.W.2d 434, 436-37 (Tex. App.—Houston [14th Dist.] 1988, pet. ref'd) ("The jury in this case was required to infer the appellant's state of mind through the facts and circumstances surrounding the act itself. One reasonable inference from this evidence was that appellant intended to cause serious bodily injury to the deceased when he hit him; this inference would support a murder conviction. Another reasonable inference from this evidence was that appellant was aware of, but consciously disregarded, a substantial and unjustifiable risk that by hitting the deceased in the frontal portion of his head with the pistol butt, he would fall backwards, hit his head on the wooden pallets, and suffer a serious injury that would cause death; this inference would support an involuntary manslaughter conviction.") (emphasis in original); see also Miller v. State, No. B14-91-00815-CR, 1993 WL 1633, at *3 (Tex. App.—Houston [14th Dist.] Jan. 7, 1993, pet. ref'd) (not designated for publication) ("[T]he jury in this case could have inferred recklessness from the circumstances surrounding the beating which lead to complainant's death."). Similarly, the foregoing is legally sufficient evidence to support Fazio's conviction. See Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011) (noting in reviewing sufficiency of the evidence court must "view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt"). Fazio's second and fourth issues are overruled.
A person commits the offense of manslaughter if "he recklessly causes the death of an individual." TEX. PENAL CODE ANN. § 19.04(a). "A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint." Id. at § 6.03(c).
Fazio relies on the statements he made to Burnside to argue the trial court erred in denying his request for the lesser included offense of criminally negligent homicide. Fazio contends his statements demonstrated he was not aware of the risk that his conduct would result in Lentz's death even though he ought to be aware of that risk. See TEX. PENAL CODE ANN. §§ 6.03(d);19.05(a). We have held, however, that Fazio was aware of the risk based on his statements to Burnside, the manner in which he hit Lentz, including the massive force used, and their location in a concrete drainage tunnel. Therefore, we hold the evidence did not establish that the lesser-included offense of criminally negligent homicide was "a valid, rational alternative to the charged offense" of murder. Bullock, 509 S.W.3d at 925.
A person commits the offense of criminally negligent homicide if "he causes the death of an individual by criminal negligence." TEX. PENAL CODE ANN. § 19.05(a). "A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint." Id. at § 19.03(d).
CONCLUSION
The trial court's judgment is affirmed.
Sandee Bryan Marion, Chief Justice DO NOT PUBLISH