Opinion
01-21-00433-CR
06-30-2022
DONDRICK FLAGG, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 263rd District Court Harris County, Texas Trial Court Case No. 1588345
Panel consists of Chief Justice Radack and Justices Goodman and Hightower.
MEMORANDUM OPINION
SHERRY RADACK CHIEF JUSTICE
A jury convicted appellant, Dondrick Flagg, of capital murder. Because the State did not seek the death penalty, the trial court assessed punishment at confinement for life without parole. In two issues on appeal, appellant contends that (1) the evidence is legally insufficient to support the conviction and (2) the trial court erred by failing to sua sponte charge the jury on a lesser-included offense of felony murder. We affirm.
See Tex. Penal Code §§ 19.02(b) (murder), 19.03(a)(2) (stating that person commits capital murder if person "intentionally commits the murder in the course of committing or attempting to commit . . . robbery[.]").
BACKGROUND
One April 21, 2018, Marlon Christian and his girlfriend, Veronica Hicks, were returning to Christian's apartment to pick up something before heading out on a date. When they parked at the apartment, Christian and Hicks saw a man who caught their attention because he seemed to just be standing in the rain for no reason. Uncomfortable about the man's presence, the two remained in the car until the man walked away. They noticed he was wearing a red-hooded sweatshirt and black pants and was drinking something from a brown paper bag. After the man walked away, Christian and Hicks got out of their car and walked into Christian's apartment.
Around the same time, Tiffany McKnight, Christian's neighbor, returned from the grocery, where she had gone to buy spaghetti. When she returned to the apartment that she shared with her mother and her son, she sat in the car for a short while, talking with her sister, Victoria Burrell, on FaceTime. As they talked, Victoria heard someone ask to borrow her sister's phone. Tiffany declined to give the man her phone, instead telling him that he could use her house phone in just a minute. Victoria then heard Tiffany "getting yanked and then gunshots." The FaceTime screen was just dark. She then heard Tiffany say, "Victoria, help" and "then the [four or five] gunshots." Victoria immediately called her mother, who also having heard the gunshots, stepped out of the apartment, and saw her daughter lying on the sidewalk. Her attention was on her daughter and she did not see anyone else.
Christian, who had entered his apartment with Hicks just moments before, also heard the gunshots. He immediately pushed Hicks to the floor and looked out the window and saw muzzle flashes. After the shooting stopped, he opened the door and saw Tiffany laying on the sidewalk. He immediately called 911 and walked toward Tiffany. He did not see anyone else. However, he told the 911 dispatcher that earlier he had seen a man in a red hoodie and black pants hanging around outside the apartment.
Police responding to the 911 call noticed a man matching the description given by Christian and approached the man, appellant. Appellant said that his girlfriend was "staying there" but he gestured in a direction away from the apartments. He then began to run, and the police gave chase. As he was running, appellant threw a gun into some bushes before being apprehended. He had Tiffany's lanyard and keys around his neck when he was taken into custody.
Tiffany died as a result of a gunshot to the back that pierced her heart. She also had pseudo-stippling on her face that indicated that a gun had been fired near her face. Several fired .380 cartridges were recovered near her body. Subsequent ballistics tests showed that they had been fired from the .380 handgun found near appellant when he was arrested. Appellant had a minimal amount of gunshot-residue on his hands, which indicated "being in a close proximity to a firearm during discharge, or handling a firearm, a fired cartridge, or some other surface bearing [gunshot residue]." Finally, appellant's DNA was present on the pistol recovered when he was arrested. Tests showed that "[t]he DNA results are approximately 238 septillion more likely if they originated from [appellant] and an unknown, unrelated individual than if they originated from two, unknown, unrelated individuals." The DNA result concluded that the tests "provided very strong support that [appellant] is a contributor to the DNA from [the handgun] recovered near the location at which he was arrested."
SUFFICIENCY OF THE EVIDENCE
In his first issue, appellant contends that "[t]he evidence provided at trial was legally insufficient to support a conviction for capital murder as the State was required to prove intent to kill." Specifically, appellant contends that the evidence of intent to kill is missing because "the evidence of the struggle during the robbery presents evidence of an accidental discharge."
Standard of Review and Applicable Law
We review a challenge to the sufficiency of the evidence under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Under the Jackson standard, we review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
When conducting a sufficiency review, we consider all the evidence admitted at trial, including evidence that may have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder's role as the sole judge of the witnesses' credibility and the weight their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder's duty to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict and defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
It is not necessary that the evidence directly prove the defendant's guilt; circumstantial evidence is as probative as direct evidence in establishing a defendant's guilt, and circumstantial evidence can alone be sufficient to establish guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). Each fact need not point directly and independently to guilt if the cumulative force of all incriminating circumstances is sufficient to support the conviction. Hooper, 214 S.W.3d at 13. Because evidence must be considered cumulatively, appellate courts are not permitted to use a "divide and conquer" strategy for evaluating the sufficiency of the evidence. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). Instead, appellate courts must consider the cumulative force of all the evidence. Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017).
A person commits capital murder if "the person intentionally commits the murder in the course of committing or attempting to commit . . . robbery." Tex. Penal Code § 19.03(a)(2).
Analysis
Appellant contends that, because there was evidence of a struggle, that evidence negates the element of intent to kill. We disagree. A jury may infer a defendant's intent from any facts tending to prove its existence, including the method of committing the crime, the nature of the wounds inflicted on the victim, and the accused's acts, words, and conduct. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002). Generally, a jury may infer an intent to kill from the use of a deadly weapon unless the manner of the weapon's use makes it reasonably apparent that death or serious bodily injury could not have resulted. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). "Naturally, the most obvious cases and the easiest ones in which to prove a specific intent to kill, are those cases in which a firearm was used and was fired or attempted to have been fired at a person." Godsey v. State, 719 S.W.2d 578, 581 (Tex. Crim. App. 1986); see also Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993); Payne v. State, 502 S.W.3d 829, 833 (Tex. App.-Houston [14th Dist.] 2016, no pet.).
Here, the evidence shows that appellant dragged Tiffany from her car and shot her in the back with a .380 handgun. He also shot near her face at some point during the offense. He was in possession of her property when he was arrested. "Evidence that the defendant arrived at the scene of the crime carrying a loaded weapon is probative of deliberate conduct." Adanandus, 866 S.W.2d at 210. "[E]vidence of a struggle does not necessarily negate deliberate conduct." Id. That Tiffany may have struggled does not negate the State's proof of intent to kill in this case.
Accordingly, we overrule issue one.
LESSER-INCLUDED OFFENSE
In his second issue, appellant contends that "[t]he jury charge failed to include an instruction on the lesser-included offense of felony murder." Appellant did not request a lesser-included offense charge on felony murder but apparently contends that the trial court should have submitted the instruction sua sponte. He further argues that the trial court's failure to instruct the jury on the lesser-included offense of felony murder caused him egregious harm under Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984).
Standard of Review and Applicable Law
We review alleged charge error by first determining whether error exists in the charge. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). "If error exists, we then analyze the harm resulting from the error" to determine whether reversal is required. Id. In determining harm, we apply "separate standards of review depending on whether the defendant timely objected to the jury instructions." Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016) (applying Almanza, 686 S.W.2d at 171). If the defendant timely objected to the charge error, then reversal is required if we determine that the error caused the defendant "some harm." Id. If the defendant did not timely object, then reversal is required only if the error was "so egregious and created such harm that the defendant did not have a fair and impartial trial." Id.
Trial courts are required to prepare a jury charge that accurately states the law that applies to the offense. Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007). But, trial courts are not required to include an instruction on a lesser-included offense or a defensive issue unless a defendant requests it or objects to its omission because the advisability of such an instruction often is a matter of trial strategy. Tolbert v. State, 306 S.W.3d 776, 780 (Tex. Crim. App. 2010). Thus, a defendant may not claim error on appeal based on the trial court's failure to give a lesser-included offense instruction unless he sought the instruction at trial. Id. at 781.
In Tolbert, the defendant was tried for and convicted of capital murder. Id. at 777-78. At trial, she did not request that the jury be charged on the lesser-included offense of murder. Id. at 778. Instead, she sought an acquittal on the basis that she did not commit capital murder. Id. On appeal, however, she argued that the trial court had a duty to sua sponte include the lesser-included offense instruction even though she had not objected to its omission from the charge. Id. at 778-79. The Court of Criminal Appeals disagreed, holding that the trial court did not err in failing to instruct the jury on the lesser-included offense, because the lesser-included offense was not law applicable to the case absent a request or objection by the defendant. Id. at 781. Further, "there was no jury-charge 'error' to which Almanza's egregious harm analysis would apply." Id. at 782.
Analysis
Here, appellant did not request a charge on the lesser-included offense of felony murder, nor did he object to its omission. See Tex. Code Crim. Proc. art. 36.14 (requiring appellant to object "before the reading of the court's charge to the jury"). As such, under Tolbert, the lesser-included offense was not "law applicable to the case" and the trial court had no duty to sua sponte provide the lesser-included offense to the jury. See Tolbert, 306 S.W.3d at 782-83; see also Arredondo v. State, No. 01-16-00312-CR, 2018 WL 611349, at *1 (Tex. App.-Houston [1st Dist.] Jan. 30, 2018, pet. ref'd) (mem. op.) (not designated for publication) (holding trial court did not err by failing to sua sponte instruct jury on lesser-included offense). As such, there was no jury-charge error requiring an egregious-harm analysis under Almanza. Tolbert, 306 S.W.3d at 779, 782; Arredondo, 2018 611349 at *1.
Accordingly, we overrule issue two.
CONCLUSION
We affirm the trial court's judgment.